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Socially Aware Blog

The Law and Business of Social Media

Status Updates

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  • Big Brother isn’t just watching. A single mother in upstate New York was surprised to find that she had a Facebook page in her name, complete with photos of her, her son, and her niece. She hadn’t actually set up the page. It turned out that she was being investigated as a bit player in a federal drug investigation and that the Drug Enforcement Administration had created the page in her name, without her permission. The page, which has since been taken down, used the woman’s real name as well as photos from her cell phone, which had been seized by the DEA. The DEA even went so far as to send and accept friend requests for the woman. The woman was sentenced to probation and has sued the DEA agent who put up the page. Facebook says impersonating someone to set up a page is a clear violation of its terms of service.
  • Transparency vs. security. Twitter and other technology and communications companies frequently receive requests from the U.S. government for user data that the government asserts it needs for national security purposes. In the interest of transparency, these companies wish to disclose how many such requests they have received, if any, in a given span of time. The government wants to restrict the dissemination of this information and, earlier this year, it reached a settlement on the issue with Google, Microsoft, LinkedIn, Facebook, and Yahoo. Twitter did not reach any such settlement and it has now sued the government in U.S. District Court in California, claiming that the government restrictions violate the First Amendment. The government argues that the more is known about its sources and methods in collecting national security data, the less secure the nation will be. This should be an interesting First Amendment case.
  • In the city there’s a thousand things. There’s been a lot of talk about “the Internet of things.” Google now wants to bring the Internet of things directly to city dwellers. What about Zipcars that broadcast when they’re available, or bus stops that communicate with your mobile device about the next bus arrival? As part of its “Physical Web” initiative, Google is seeking to bring these and similar features to the urban environment. The idea is to interconnect seemingly unconnected physical objects that city dwellers encounter on a daily basis. As a Google designer says, “Just tap and use.”

Status Updates

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  • Yik yuck. As we’ve discussed on this blog, secrecy is all the rage these days in the online world. Yik Yak – a particularly edgy social media app that seeks to preserve user anonymity – is sweeping the country, or at least the nation’s college campuses. With users’ identities concealed, the app has reportedly become a popular means for communicating deeply offensive remarks and even threats of violence. At one school, Colgate University, students launched a sit-in to protest against the ugliness they found on the app. And at the University of Tennessee, Dean of Students Melissa Shivers recently sent an email to students warning about the app and emphasizing the importance of civility on campus. With the growing popularity of anonymous social media platforms such as Yik Yak, expect to see increased tensions between anonymous speech rights and efforts to limit hateful or violent speech.
  • Listening in. For some time, many pharmaceutical companies have reportedly “listened in” on patients’ social media conversations to obtain a sense of how their products were actually being used, and data-packaging and data-mining companies have sprung up to help pharma firms get a handle on the discussions on Facebook, Twitter and other social media platforms. Now, investors too are starting to jump into this emerging field of “social listening” to get ideas about where to put their money. An Israeli company, Treato, is actively courting fund managers with its pitch that it can tap into these aggregate conversations. Even though no actual patient names are apparently used in these reports, a lot of people are raising privacy concerns. Big Data, meet Big Privacy – should be an interesting battle to watch.
  • Legally social. The Pennsylvania Bar Association just issued a formal ethics opinion on the use of social media by attorneys. Among the key provisions are ones requiring lawyers to have a basic working knowledge of social media as part of their competence in the law, prohibiting lawyers from disclosing confidential client information in response to negative online reviews, and permitting attorneys to access the public portion of jurors’ social media profiles while prohibiting efforts to access private information from such profiles. The formal opinion is one of the most comprehensive on the subject in any state, and is recommended reading for attorneys, regardless of their practice focus.

 

 

Status Updates

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  • Upward mobility. These days, Facebook videos, taken as a whole, are receiving a total of one billion views a day, and at least 65% of those views are occurring on mobile devices, Facebook VP of global marketing solutions Carolyn Everson noted at a recent Advertising Week panel discussion. Indeed, over the past two years, there’s been an astonishing 532% increase in watching videos via mobile devices, including tablets. That means that advertisers now have the key challenge of creating digital video content that invites engagement by consumers across platforms and devices. People are carving out moments during their everyday activities to consume media via mobile, and advertisers will want to take this into account in planning their campaigns.
  • Blue platform, red platform. Is your choice of social media platform a clue to your politics? A current survey suggests that it might be.  For example, according to the survey, Pinterest fans are older and wealthier than users of other major platforms; hence, they tend to be more conservative than the average Internet user. On the other hand, Twitter aficionados are more interested in politics than most people—and also more liberal. Facebook is the most politically neutral, on average, perhaps because it is so large that pretty much every group is well represented. It will be interesting to see if these findings, released by Quantcast, have an impact on online advertising strategies.
  • Troublesome tweets? In the upcoming high-profile retrial on sentencing issues of Jodi Arias, the Arizona woman who was convicted in 2013 of murdering her lover in 2008, the defense has moved to dismiss on several grounds the prosecution’s intent to seek the death penalty. The defense alleges, among other things, that a police detective’s wife improperly tweeted sealed trial information and uploaded “insulting videos” to YouTube. The trial is set to start on October 20.

Implementing and Enforcing Online Terms of Use

Posted in Terms of Use

Operators of social media platforms and other websites must manage a large number of risks arising from their interactions with users. In an effort to maintain a degree of predictability and mitigate some of those risks, website operators routinely present users with terms of use or terms of service (“Website Terms”) that purport to govern access to and use of the relevant website and include provisions designed to protect the website operators, such as disclaimers, limitations of liability and favorable dispute resolution provisions. But are such Website Terms enforceable against users and do they actually provide the protection that website operators seek? The answer may well depend on how the Website Terms are implemented.

Clickwrap vs. Browsewrap

Website Terms typically come in two flavors: “clickwrap” terms, where users are required to accept by taking some affirmative action such as checking a box or clicking an “I accept” button before using the website, and “browsewrap” terms that are provided to users through a link (often, but not always, at the bottom of the page) and purport to bind users even without any affirmative manifestation of acceptance. In determining whether Website Terms are enforceable against users, courts focus on whether users had notice of the terms and actually agreed to be bound by them. Not surprisingly, therefore, courts tend to look more favorably on clickwrap implementations as compared to browsewrap terms.

For example, in Fteja v. Facebook, Inc. (S.D.N.Y. 2012), the plaintiff claimed that Facebook disabled his Facebook account without justification and for discriminatory reasons, causing emotional distress and harming his reputation. Facebook moved to transfer the case to federal court in Northern California based on the forum selection clause in the Facebook terms of use, but the plaintiff claimed that he had never agreed to the terms of use. The court concluded that the plaintiff was bound by the Facebook terms, however, because he had checked a box indicating his acceptance when he registered for Facebook.

In contrast, Barnes & Noble had less luck enforcing its terms of use in Nguyen v. Barnes & Noble, Inc. (9th Cir. August 18, 2014). In Nguyen, the plaintiff ordered a tablet from Barnes & Noble at a discounted price but Barnes & Noble canceled his order. The plaintiff sued and Barnes & Noble moved to compel arbitration based on an arbitration clause included in its website’s browsewrap terms of use. The court held that Barnes & Noble’s terms could not bind the plaintiff, despite being presented through a “conspicuous” link during the checkout process, because Barnes & Noble did not prompt users to affirmatively assent to the terms.

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Status Updates

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  • Filling a gap. Gap Inc., the clothing retailer, is using social media to establish a web presence focused on feminism, equal pay for equal work, and progressive values. For example, the company produced an Instagram video, which it also shared on its other social media channels, to support equal pay for women. The video is an extension of a company initiative to highlight “the missing 23 cents” – i.e., the 77 cents that women make for every dollar their male counterparts earn. This is a bold use of the Gap’s social media soapbox to promote its company values and, it appears, a very successful one.
  • Uber mess. A passenger in an Uber car in San Francisco was allegedly bashed in the head last month by the driver during an argument. The passenger suffered serious eye injuries and has said that he is likely to sue Uber. In similar cases, Uber has invoked Section 230 of the Communications Decency Act as a defense, claiming that it is merely an online marketplace and not a transportation provider. But while Section 230 has been interpreted broadly, even some of the statute’s staunchest defenders have questioned whether Uber can claim its protection in this case.
  • Tweeting your wish. Amazon and Twitter have just rolled out a new feature that enables consumers to use the new hashtag #AmazonWishList to add tweeted products to their Amazon Wish Lists, so long as they have first connected their Amazon and Twitter accounts. The companies appear to be betting that this new “wish list” functionality will be a natural extension of the way in which people already use Twitter to express interest in, and opinions about, products.

The Death of Courtesy and Civility Under the National Labor Relations Act

Posted in Employment Law, Litigation

In 2012, the National Labor Relations Board (NLRB or the “Board”) found a “courtesy” policy unlawful. Since then, the NLRB has continued to create more and more tension between the National Labor Relations Act (NLRA or the “Act”) and employers’ legitimate interests in maintaining and enforcing workplace guidelines governing courtesy in a nondiscriminatory fashion.

This article focuses on the maintenance and enforcement of courtesy and civility rules. In these cases, the Board has taken extreme positions that increasingly ignore competing interests and obligations of employers. Among the obligations that can conflict with Section 7 in this context, employers must protect their employees from harassment, including on the basis of sex and race, by disciplining employees making harassing comments and engaging in harassing behavior and by maintaining civil workplaces that are not conducive to harassment. Employers also have a legitimate interest in maintaining a civil workplace simply to promote employee productivity and job satisfaction, as well as ensuring appropriate levels of customer service.

The Framework: Regulating Workplace Rules Under the NLRA

Employees have the right to engage in concerted activity under Section 7 of the NLRA. Concerted activity is activity undertaken for the employees’ mutual aid and protection, including, for example, discussing the terms and conditions of employment, such as wages, policies, and workplace treatment. Under Section 8(a)(1) of the Act, it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”

Under the general framework of the Act, the National Labor Relations Board regulates employer maintenance and enforcement of generally applicable workplace rules in several ways.

First, an employer commits an unfair labor practice, under Section 8(a)(1), if it maintains a rule that would reasonably tend to chill employees in the exercise of their Section 7 rights. If it expressly restricts Section 7 activity, the rule is unlawful. Further, if it does not expressly restrict Section 7 activity, the rule is still unlawful under Lutheran Heritage Village if “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” In reading the rule, the Board should “refrain from reading particular phrases in isolation.” Similarly, the Board should not seek out “arguable ambiguity . . . through parsing the language of the rule, viewing [a] phrase . . . in isolation, and attributing to the [employer] an intent to interfere with employee rights.” Lafayette Park Hotel.

Second, employers may not discipline employees for engaging in protected activity. In the event that “the very conduct for which employees are disciplined is itself protected concerted activity,” then the discipline violates Section 8(a)(1) regardless of the employer’s motive or a showing of animus. Burnup & Sims, Inc. Similarly, if an employee violates a workplace rule and is disciplined, the discipline is unlawful if the employee “violated the rule by (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act.” Continental Group, Inc.

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Status Updates

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  • Where are the CEOs? According to a new study, fully two-thirds of the CEOs of the Fortune 500 have no personal social media presence at all. And of the ones who do participate in social media, two-thirds use only one of the major networks, usually LinkedIn.  Just 42 of the senior executives have Twitter accounts, and many of those are pretty inactive. The same number of the Fortune 500 CEOs use Facebook – still not very many at all. In an age in which virtually every company wants to brand itself on social media, it’s a bit surprising that so many of the top people have no personal experience with it.
  • Facebook lawsuit can proceed. A New York state appeals panel has permitted a lawsuit by Facebook against the Manhattan District Attorney’s office to proceed.  Facebook had sued the D.A.’s office over search warrants issued to 381 users of the network by the prosecutors in a fraud investigation. The appeals panel rejected prosecutors’ motion to dismiss Facebook’s challenge to the warrants and also gave several technology companies — among them Google, LinkedIn and Twitter — permission to file briefs supporting Facebook’s position. A full appellate hearing will occur in December. The closely watched case pits Fourth Amendment protection against prosecutors’ need for data stored by social media companies.
  • Hanging on the Vine. Vine, which began as a network in which people could share bare-bones six-second videos, has become an important venue for pop singers, actors and other entertainers who appeal to younger viewers. One observer said Vine has “an intensive burst perfect for the increasingly short attention span of Generation Z.” Vine is less than two years old but already seems to have found a niche, as top “Viners” have millions of followers on the site.

FTC Warns Advertisers to Check the Fine Print in “Operation Full Disclosure”; Shot Across the Bow Could Signal Law Enforcement Actions to Come

Posted in FTC

The Federal Trade Commission (FTC) announced this week that it sent warning letters to more than 60 national advertisers regarding the inadequacy of disclosures in their television and print ads. The letters are part of an initiative named “Operation Full Disclosure,” which the FTC implemented to review fine print disclosures and other disclosures that it believed were difficult to read or easy for consumers to overlook, yet included critical information that consumers would need to avoid being misled.

What Does it Mean for a Disclosure to be “Clear and Conspicuous”

Disclosures may be necessary to clarify a claim or to ensure that the full terms of an offer are adequately disclosed, in order to avoid a charge of deception by material omission. In FTC jurisprudence, disclosures must be “clear and conspicuous,” and while they may modify claims in the text of an ad itself, they may not contradict any such claims. The most recent pronouncement on how to make effective disclosures (this one was focused on online disclosures, but the general principles are the same) was issued in March 2013. The key is that if a disclosure is necessary to make an ad truthful and not misleading, it must be clear and conspicuous; otherwise, it is as though the disclosure was not made at all.

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Status Updates

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Hooray for Hollywood. According to a new study by KPMG, television and movie viewers have never had it better. A report by the consulting company found that the overwhelming majority of well-known movies and television shows are available legally to U.S. viewers through online services such as Amazon Prime, Netflix and Hulu. The study found that fully 94 percent of popular titles were legally available through one channel or another. The study also pointed out that these legal services provide high-quality viewing, which is generally not true of illegal services. Maybe it is possible to compete with free? After all, sellers of bottled water have done well vis-à-vis tap water by offering products that are high-quality, reasonably priced, convenient and ubiquitous.

There’s an app for that too. Entertainers, celebrities and others who are popular with the teen-age and young-adult demographics are increasingly choosing to promote themselves on mobile app-based social networks, or so-called “chat apps,” rather than through Facebook or Twitter, where it can be hard to stand out amidst the sheer volume of posts. These new chat apps, including Line, Kik, Snapchat, WeChat and Viber, allow for more direct engagement with followers. For example, when Paul McCartney and his band recently headed to Japan, he used Line to interact with fans, personally responding to inquiries and offering a free pack of stickers featuring cartooned images of himself.

Hipster’s paradise. Here at Socially Aware, we’ve taken a keen interest in Ello, the incredibly hip new social media platform that is generating a big buzz in the tech community. Indeed, some have dubbed Ello the “anti-Facebook,” because it does not sell ads based on user data, does not require users to use their real names and has a business model that relies on users to pay for premium features that they select. It is also invitation-only, further sparking interest in the new platform. Ello’s founders say they are aiming the network at artists, designers and programmers – not at the whole universe.  They also report that Ello is doubling in size every three or four days. Will Ello become the next big thing? Will consumer concerns regarding online privacy fuel the growth of alternative platforms such as Ello and, in the search space, DuckDuckGo, services that purport to provide greater privacy protections for users?

Status Updates

Posted in Status Updates
  • Status check.  In the recently released Corporate Directors Survey from PricewaterhouseCoopers, 41% of corporate board members reported that their companies monitor social media for adverse publicity.  That’s up from 32% in 2012.  One commentator suggests that a company’s entire board of directors—not just the members of its audit or risk committees—should be charged with social media oversight, given the reputational risk social media chatter poses and the medium’s potential as an effective investor relations tool.
  • Fightin’ words?  An Indonesian law student landed in a police detention cell for criticizing a historic city online because police in that country suspected her of running afoul of the 2008 Law on Information and Electronic Transactions, Indonesian legislation that provides prison time for anyone convicted of using electronic media—including social media networks—“to intimidate or defame others.”  Many criticize the law as being inconsistent with Indonesia’s successful transition from an authoritarian state to a robust democracy.
  • The wrong number.  Twitter users sometimes give the social media company their cell phone numbers in order to be able to view tweets as text messages. But when a cell phone number that has been submitted to Twitter for that purpose is reassigned to a new user, do Twitter’s text messages to that number violate the Telephone Consumer Protection Act? Beverly Nunes claims they do. In a suit she filed in the U.S. District Court for the Northern District of California, Nunes is seeking class certification, and at least $500 in damages for each unsolicited Twitter text she received.  In a Sept. 16 motion to dismiss Nunes’s complaint, Twitter contends that the texts do not violate the TCPA because, among other things, they were not sent using an “automatic telephone dialing system or an artificial or prerecorded voice,” as the statute requires.