03_April_SociallyAware_thumbnailThe latest issue of our Socially Aware newsletter is now available here.

In this edition, we explore the threat to U.S. jobs posed by rapid advances in emerging technologies; we examine a Federal Trade Commission report on how companies engaging in cross-device tracking can stay on the right side of the law; we take a look at a Second Circuit opinion that fleshes out the “repeat infringer” requirement online service providers must fulfill to qualify for the Digital Millennium Copyright Act’s safe harbors; we discuss a state court decision holding that Section 230 of the Communications Decency Act immunizes Snapchat from liability for a car wreck that was allegedly caused by the app’s “speed filter” feature; we describe a recent decision by the District Court of the Hague confirming that an app provider could be subject to the privacy laws of a country in the European Union merely by making its app available on mobile phones in that country; and we review a federal district court order requiring Google to comply with search warrants for foreign stored user data.

All this—plus an infographic illustrating how emerging technology will threaten U.S. jobs.

Read our newsletter.

Some industry observers are asking whether the post-inauguration tweets that President Trump is sending from his personal Twitter account may be subject to the same Presidential Records Act standards as official presidential communications.

Spending on mobile ads is expected to reach how much by 2021?!

Google recently banned 200 publishers from its AdSense network for either publishing fake news or impersonating real news organizations by using shortened top-level domains such as .co instead of .com.

Perhaps due in part to the fake news phenomenon, most Americans do not trust the news that they read on social media platforms, according to a recent study.

In an effort to keep users on the site, YouTube is testing an in-app messaging platform that allows users to chat about and comment on YouTube content.

Interested in how your brand can best respond to the complaints dissatisfied customers lodge on Twitter? Take a cue from Dippin’ Dots’ savvy response to the new White House Press Secretary’s multiple disses of the company’s product.

An artificially intelligent algorithm that can easily be adapted for smartphones might detect skin cancer moles as effectively as a dermatologist.

A recent study reveals that the United States has more immigrant inventors than every other country combined.

Google just made it possible to view an instantaneous Japanese-to-English translation by holding your smartphone in front of the relevant text.

These tools can help you to take a look beyond your personal social media bubble and understand how the other half thinks.

Social media is transforming the way companies interact with consumers. Learn how to make the most of these online opportunities while minimizing your company’s risk at Practicing Law Institute’s (PLI) 2017 Social Media conference, to be held in San Francisco and webcasted on Thursday, February 2nd.  The conference will be chaired by Socially Aware co-editor John Delaney, and our other co-editor, Aaron Rubin, will also be presenting at the event.

Topics to be addressed will include:

  • Key developments shaping social media law
  • Emerging best practices for staying out of trouble
  • Risk mitigation strategies regarding user-generated content and online marketing
  • Legal considerations regarding use of personal devices and other workplace issues

Other special features of the conference include:

  • Regulators panel: guidance on enforcement priorities for social media and mobile apps
  • In-house panel: practical tips for handling real-world issues
  • Potential ethical issues relating to the use of social media by attorneys

Don’t miss this opportunity to get up-to-date information on the fast-breaking developments in the critical area of social media and mobile apps so that you can most effectively meet the needs of your clients.

For more information or to register, please visit PLI’s website here.  We hope to see you there!

“Yellow journalism” websites are using social media to capitalize on popular ideology. And they’re making a bundle.

New York City recently passed the country’s first law protecting the wages of “gig economy” workers. The Wall Street Journal published an illuminating infographic illustrating who’s making a living that way.

Twitter suspended high-profile accounts associated with the “alt-right” movement.

A state law kept 43,000 wannabe Uber users in upstate New York from ordering a car from the ride-hailing service on Thanksgiving eve.

PayPal reported some surprising statistics about this year’s online shopping over Thanksgiving weekend. Check out our own blog post from last year on how social commerce is killing off both Black Friday and Cyber Monday.

Two new ethics opinions from the D.C. Bar provide an excellent overview of potential ethical issues raised by social media use by attorneys; among other things, the opinions highlight the need for lawyers to exercise caution when tweeting or posting positions on legal issues (which could potentially create an inadvertent conflict with a client’s interest), and in allowing social media platforms to access their email contacts (which could potentially identify clients or divulge information for which there is an ethical obligation to protect from disclosure). The opinions can be reviewed here and here.

Apparently vlogging can be a grind even for the most financially successful social media stars.

This New York Times piece exploring how Snapchat revolutionized social media discusses some of the unique platform and business model features that we cited last year as responsible for Snapchat’s success.

CNN bought a social media company founded by a YouTube star with a millennial following.

Speaking of CNN, that company and other prominent news publishers are getting low app store ratings from people claiming that such publishers have a liberal bias.

Google Maps just made it easier to snag a table at usually-crowded restaurants and watering holes.

Think twice before giving out your cellphone number.

80895353_SmallA recent decision out of the Northern District of California brings good news for developers of mobile apps that incorporate text messaging functions. Those functions may create the risk of claims under the Telephone Consumer Protection Act, which generally prohibits the delivery of a text message without the recipient’s express consent. But in Cour v. Life360, Inc., U.S. District Judge Thelton E. Henderson granted defendant Life360’s motion to dismiss a putative TCPA class action after determining Life360 could not be held liable under the TCPA for a text initiated by a user of Life360’s messaging and geolocation application.

Background

The plaintiff alleged that he received a single, unsolicited text message from Life360, which operates a mobile application that allows users to text and see the location of fellow users on their contact lists. According to the plaintiff, after users download the application and set up an account, the application requests access to their contact lists so they can invite their friends and family to join. Users choose those in their contacts they wish to invite and then press an “Invite” button on the screen to send the invitations via text message. Users are not told how or when those invitations will be sent.

Plaintiff filed claims under the TCPA and California’s Unfair Competition Law (UCL) on behalf of himself and a nationwide class of persons that received at least one text message from or on behalf of Life360. Life360 moved to dismiss both claims.

One Text Sufficient to Confer Standing Under Spokeo

Life360 first argued that the plaintiff lacked Article III standing because he failed to allege a concrete injury, as required under the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). But the Court rejected that argument, holding that even though the plaintiff received only one text, the invasion of privacy it caused was sufficiently concrete to confer standing.

Life360 Not Liable Under the TCPA or UCL

The key disagreement between the parties was whether Life360 or its user was responsible for “initiating” the invitational text message sent to the plaintiff. Relying on guidance from the Federal Communications Commission’s July 2015 declaratory ruling, the Court ruled that the user—and not Life360—initiated the text to plaintiff, and thus Life360 could not be held liable.

The Court reasoned that Life360’s users have to affirmatively choose which of their contacts will receive an invitation and then press the “Invite” button to actually send the invitations. Even though Life360 does not inform its users how or when those invitations will be transmitted, given the TCPA’s purpose of preventing invasions of privacy, “the person who chooses to send an unwanted invitation is responsible for invading the recipient’s privacy even if that person does not know how the invitation will be sent.” Consequently, Life360 could not be held liable for the text message under either the TCPA or the UCL.

Takeaway

As this case demonstrates, to mitigate the risk of TCPA liability, developers of messaging software or applications should ensure that any text messages sent through their platforms are initiated by the users themselves through their affirmative conduct.

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For more on the Telephone Consumer Protection Act’s application to text messages, see FCC Rules That Opt-Out Confirmation Text Messages Do Not Violate the TCPA; G2G, Yo Quiero TB: Taco Bell Found Not Liable for Franchisee Text Message Campaign; Face Off: Consumer Sues Hockey Team Over Text Messages. For more on the TCPA in general, see FCC Clarifies Its Interpretations of the Telephone Consumer Protection Act, Provoking Strong Objections From the Business Community.

 

Instagram now allows users to zoom in on photos in their feeds and at least 11 brands are already capitalizing on the new feature.

Pinterest acquired Instapaper, a tool that allows you to cache webpages for reading at a later time.

A social-media celebrity with 500,000 followers and a lot of people interacting with his or her content could bring in how much for a single post?!

Snapchat’s first investor shares his secret for identifying the next big app.

SEC steps up scrutiny of investment advisers’ use of social media.

As younger audiences’ primary source of news, social media has understandably affected photojournalism.

Should social media companies establish guidelines for when they will—and will not—heed police officers’ requests to suspend suspects’ accounts?

Meet the officer behind a small New England city’s police department’s viral Facebook page.

Wondering whether you should hit “reply all” when someone has mistakenly included you on an email chain? The New York Times has one word for you.

Google is cracking down on mobile pop-up ads by knocking down the search-result position of websites that use them.

The National Labor Relations Board decided a social media policy that Chipotle had in place for its employees violates federal labor law.

A group of lawmakers plans to introduce legislation that would criminalize revenge porn—explicit images posted to the web without the consent of the subject—at the federal level.

The Truth in Advertising organization sent the Kardashians a letter threatening to report them for violating the FTC’s endorsement guides. This isn’t the first time the legality of the famous family’s social media posts has been called into question. If only Kim would read our influencer marketing blog posts.

According to one study, 68% percent of publishers use editorial staff to create native ads.

Twitter launched a button that a company can place on its website to allow users to send a direct message to the company’s Twitter inbox.

The Center for Democracy & Technology criticized the Department of Homeland Security’s proposal to ask visa-waiver-program applicants to disclose their social media account information.

UK lawmakers issued a report calling on the big social media companies to do more to purge their platforms of hate speech and material that incites violence.

Social media is playing bigger role in jury selection, Arkansas prosecutors and criminal defense lawyers say.

A day in the life of the Economist‘s head of social media.

Seven things smart entrepreneurs do on Instagram.

Four ways to get busy people to read the email you send them.

Want to know how Facebook views your political leanings? Here’s the way to find out.

CaptureThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award winning guide to the law and business of social media, we discuss the impact online trolls are having on social media marketing; we revisit whether hashtags should be afforded trademark protection; we explain how an unusual New Jersey law is disrupting the ecommerce industry and creating traps for the unwary; we explore legal and business implications of the Pokémon Go craze; we examine a recent federal court decision likely to affect application of the Video Privacy Protection Act to mobile apps; we discuss a class action suit against an app developer that highlights the legal risks of transitioning app customers from one business model to another; and we describe how Europe’s Right to Be Forgotten has spread to Asia.

All this—plus infographics illustrating the enormous popularity of Pokémon Go and the unfortunate prevalence of online trolling.

Read our newsletter.

Facebook introduced technology that disables ad blockers used by people who visit the platform via desktop computers, but Adblock Plus has already foiled the platform’s efforts, at least for now.

A look at Twitter’s 10-year failure to stop harassment.

Are mobile apps killing the web?

LinkedIn sues to shut down “scrapers.”

The FTC is planning to police social media influencers’ paid endorsements more strictly; hashtags like #ad may not be sufficient to avoid FTC scrutiny. Officials in the UK are cracking down on paid posts, too.

Dan Rather, Facebook anchorman.

The U.S. Olympic Committee sent letters to non-sponsoring companies warning them against posting about the games on their corporate social media accounts.

How IHOP keeps winning the love & affection of its 3.5 million Facebook fans.

A Canadian woman whose home was designated a Pokémon Go “stop” is suing the app’s creators for trespass and nuisance. We saw that coming.

There’s a website dedicated to helping Snapchat users fool their followers into thinking they’re out on the town.

Facebook has been wooing premium content owners, but TV companies are reportedly resisting.

PETA got a primatologist to submit an amicus curiae brief supporting its suit alleging a monkey who took a selfie is entitled to a copyright for the image.

Instagram now allows celebrities to block trolls.

While Facebook reached new highs last quarter, Twitter continued to stumble. Will adding more live video content or allowing users to create Snapchat-like collage custom emojis over photos help Twitter regain its footing?

Tips for fixing your company’s social media marketing strategy.

A pop singer told fans to send him their Twitter passwords so he could post personal messages to their feeds. Marketing genius or potential Consumer Fraud and Abuse Act violation?

Tiffany & Co. launched a Snapchat filter to attract millennials.

Yelp posted a warning on the Yelp.com page of a Manhattan dentist who filed defamation suits against five patients over four years for giving him negative reviews.

Sponsored content is becoming king in a Facebook world.

The New York Times built an in-house analytics dashboard to make it easy for its reporters to access reader engagement data.

Pinterest appears to be losing to Snapchat in the battle for digital ad dollars.

Profile pranks or endorsement bombing on LinkedIn is an actual thing.