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Socially Aware Blog

The Law and Business of Social Media

Status Updates

Posted in Status Updates

Social drinkers. The founder of the Lagunitas Brewing Company decided to drop a lawsuit that he’d filed against Sierra Nevada for trademark infringement after beer drinkers expressed their disapproval of the suit on Twitter. The complaint claimed the letters “IPA” on the label for Sierra Nevada’s Hop Hunter IPA mimicked the “IPA” on Lagunitas’ India Pale Ale product because the font, color, kerning (or letter spacing) and “weathered look” of those initials were similar on both packages. After Lagunitas’ founder, Tony Magee, posted on Twitter about the suit, beer consumers expressed their dismay on that social media platform, with some even tweeting threats to boycott Lagunitas’ products. One consumer tweeted: “You’re suing over kerning? The labels look nothing alike and you’ve just done more damage to your brand than SN did.” Magee acquiesced to the Twitter mob by tweeting his intention to withdraw the suit the very next day.

Copyright crises averted. Until very recently, YouTube video creators had no way of knowing whether the music they included in their content was copyrighted until they’d uploaded their videos onto the site. Once uploaded onto YouTube, the music was (and still is) automatically scanned against the video-sharing site’s database of copyrighted material, known as Content ID. If a newly uploaded video contains music that matches a file in that database, YouTube responds by automatically following the copyright holder’s instructions on what to do with infringing material: mute the audio part of the video that matches the copyright holder’s music; block the whole video from being viewed on YouTube; track the number of times the video is viewed on YouTube; or enable the infringing video to make money for the copyright holder by placing advertisements on it. Now, thanks to a feature added last month, people who post content to YouTube no longer have to wait until they’ve uploaded their videos to learn the fate of that content. The new feature allows YouTube video creators to search the YouTube Audio Library for songs they plan to use in their content. The Audio Library will then inform the video creators if someone else owns the rights to the songs they’re considering.

Reputation preservation. A New York City-based start up wants to help save people who lack social media savvy from themselves. For $5 a month ($10 to monitor your interactions on more than one network), the company, ThinkUp, helps a subscriber understand how he is coming across on platforms including Facebook and Twitter by emailing the subscriber information such as how often he congratulates others and uses certain words on social media. Seem unnecessary? Other people must think so, too; the company recently announced that its user base isn’t growing as quickly as its founders had hoped. Conditions nevertheless seem ripe for ThinkUp’s success. A New York Times “Personal Tech” columnist reported that he found ThinkUp “to be an indispensable guide to how [he] navigate[s] social networks,” and, given the prevalence of news stories describing a social media gaffe’s potential to ruin someone’s reputation and career, you’d think there’d be no shortage of people willing to pony up $5 to help them stay in their online communities’ good graces.

Narrow Vision: Did Anti-Glass Hysteria Contribute to the Demise of Google Glass?

Posted in Wearable Computers

Once the hottest new technology innovation around, Google Glass was put out to pasture yesterday, at least for the near future.

In the tech industry, we generally assume that a game-changing product like Glass will somehow find a way to thrive, especially with Google’s virtually unlimited resources behind it. So why did Glass suffer this major setback?

I don’t have an answer. But I wonder if the relentless stream of negative publicity–often unreasonably negative publicity–about Glass may have contributed to consumers’ reluctance to embrace the product.

Consider, for example, the following items:

  • A recent study allegedly showing that Google Glass can partially obstruct the wearer’s peripheral vision received widespread coverage in the popular press. The study found that, even when the device is turned off, Google Glass’s hardware creates a blind spot in the upper right area of the wearer’s visual field. But, remarkably, this “study” was based on the experiences of only three people–hardly a statistically significant sample. (Most statisticians agree that, for a test to produce a meaningful result, there should be at least 100 subjects involved.)
  • Another recent study picked up by the news media described the Navy’s Substance Abuse and Recovery Program’s treatment of a 31-year-old serviceman for alcoholism and “significant frustration and irritability related to not being able to use his Google Glass,” as a case of “Google Glass addiction,” as if that were an established disorder (it’s not). At least the “obstructed peripheral vision” study noted above involved three participants; this “study” involved only a single subject.
  • It was widely reported last year that Glass would make it easier for eavesdroppers to steal ATM and tablet users’ PINs and passcodes–not because Glass’s technology makes it superior for those purposes, but because Glass is allegedly less conspicuous than, say, a smartphone with a camera. But the fact that Glass lights up when in use would seem to make it an awkward tool for spying on people using ATMs and tablets in public.

Even a cursory Google search will turn up many other articles warning us of the perils of Glass. (We covered anti-Glass sentiment in greater detail in a blog post last year.)  But I don’t mean to suggest that the press was solely responsible for anti-Glass hysteria; governments and big business did their part to stoke consumer fears.

For example, several state legislatures have been considering bills that would make it illegal to wear Google Glass while driving. As a practical matter, for such legislation to be effective, it would have to forbid motorists from wearing any head-mounted device, whether or not it’s in use–a police officer cannot be expected to know whether a person behind the wheel actually had her Glass device turned on while she was driving.

The federal government also jumped on the anti-Glass bandwagon. In May 2013, for example, a bipartisan caucus of U.S. congressmen sent Google an inquiry regarding a variety of privacy matters. In response to that inquiry, Google announced in June 2013 that it would not allow applications with facial recognition on Google Glass. It’s remarkable that, even in these bitterly partisan times, Glass fears could unite Democrats and Republicans.

Regulators in other countries entered the fray as well, writing to Google to complain that they had not been approached by Google to address Glass-related privacy concerns.

Further, all types of businesses and organizations have rushed to ban Glass–bars, restaurants, banks, schools, hospitals, museums, casinos, circuses, strip clubs and so on. Some of these bans, of course, make sense, but others do not; interestingly, history informs us that the revolutionary Kodak camera, upon its introduction in 1888, was banned from beach resorts and even the Washington Monument.

In any event, it’s hard to imagine any product, no matter how innovative, surviving the barrage of negative developments related to Glass. Everywhere one looked, the message was that Glass had the potential to do damage–damage to its user’s physical and mental health, damage to its owner’s integrity, damage to the privacy of bystanders, damage to other motorists, damage to a business establishment’s income.

I don’t mean to suggest that Glass didn’t raise some legitimate privacy concerns–it did. And so does the Internet. And social media. And mobile phones. And the Internet of Things. And even the Kodak camera, for that matter.

Now that Glass is no longer with us, perhaps we can look at it with clearer vision. Is it possible that all of the relentless criticism of Glass was, well, short-sighted?

Looking Ahead in 2015: Obama Announces Push for Privacy Legislation in Final Term

Posted in Privacy

President Obama provided a preview of his State of the Union address next week which will propose comprehensive data privacy legislation, including a nationwide data-breach notification law, a Consumer Privacy Bill of Rights, and limitations on the use of student data. The announcement comes at a pivotal time for privacy in the wake of the high-profile data breaches that filled the news in 2014.

In his remarks, President Obama called for Congress to create a “single, national standard” for notifying consumers of a data breach. Specifically, the president’s legislative proposal generally would require companies to notify customers of breaches of computerized data within 30 days. The proposed breach legislation would also preempt the current patchwork of state breach laws, although preemption would be limited to state laws “relating to notification” of breaches involving computerized data. The proposal would provide the Federal Trade Commission (FTC) with rulemaking authority and would be enforceable by the FTC and state Attorneys General. In addition, the proposed legislation would extend computer-crime laws to reach extraterritorial conduct in an effort to prosecute perpetrators of cyber-attacks even when the perpetrators are located overseas.

The president also proposed legislation adopting the Administration’s 2012 Consumer Privacy Bill of Rights. The proposal would outline “basic principles to both protect personal privacy and ensure that industry can keep innovating.” Such a law would provide consumers the right to decide what personal data companies collect from them and how companies use that data, as well as require that companies protect the security of consumer information and be held accountable for its use. The president promised that this legislation would be introduced by the end of February 2015.

Finally, President Obama proposed legislative language that would be focused on protecting student data from being used for commercial purposes, such as targeted advertising. Specifically, the president’s proposal would require that data collected regarding students be used only for educational purposes and would restrict companies from selling student data to third parties for non-educational purposes. The president’s proposal is likely modeled on California’s recently passed landmark student privacy law, the Student Online Personal Information Protection Act, which prohibits operators of online educational services from selling student data and using such information to target advertising to students or to “amass a profile” on students for a non-educational purpose.

Status Updates

Posted in Status Updates

A Craigslist conviction. The highest court in Massachusetts upheld the conviction under the Bay State’s anti-harassment statute of a couple who posted fake Craigslist advertisements that caused a great deal of trouble for their neighbors. The convicted couple, William and Gail Johnson, had purchased a tract of land in 2003 with the intention to subdivide and develop it. The land was adjacent to property owned by James and Bernadette Lyons, who objected to the Johnsons’ plans. As the dispute escalated, the Johnsons undertook a series of actions intended to make the Lyonses, according to the Johnsons’ own words in an anonymous email, “miserable.” Those actions included posting Craigslist ads for several phony sales on the Lyonses’ property, resulting in dozens of people showing up at the Lyonses’ home and calling the Lyonses late at night. The Johnsons argued that they couldn’t be prosecuted because, among other reasons, Massachusetts’ anti-harassment statute requires that the victim be “targeted” by the defendants on several occasions and the Craigslist ads in question didn’t target the Lyonses, but the Internet and the general public. The Supreme Judicial Court rejected that argument, holding that “[t]he Craigslist postings were the equivalent of the defendants recruiting others to harass the victims and the victims alone. The defendants cannot launder their harassment of the Lyons family through the Internet to escape liability.” The decision marks the first time Massachusetts’s Supreme Judicial Court clearly approved the use of the statute to prosecute a cybercrime, according to the district attorney who prosecuted the case.

Selfie-awareness. With over one million taken every day, the selfie has become a defining feature of the social media age. But to play Freud for a moment, what do selfies really reveal about those of us who take and post such images? Well, according to research from The Ohio State University, men who often post selfies to social media platforms like Facebook and Instagram exhibited greater-than-average levels of two antisocial personality traits: psychopathy and – perhaps less surprisingly – narcissism. The researchers gave 800 men between the ages of 18 and 40 online surveys about their social media habits and personality traits. Unlike the selfie-taking men who post their pictures to social media instantly, the selfie-taking men who edit their portraits did not exhibit above average psychopathic tendencies – a logical outcome, the researchers explained, given that psychopathy is marked by impulsivity. The editing picture takers did, however, exhibited higher-than-normal levels of self-objectification – a trait characterized by making self-worth dependent almost exclusively on physical appearance. But those of you with Facebook friends who post a seemingly endless stream of unedited selfies shouldn’t necessarily worry – while the non-editing selfie-takers did have above average psychopathic tendencies, those tendencies were still within normal range.

Screen time. If your relationship with social media has grown from a temporary dalliance into a regular commitment, you’re not alone. A poll conducted by Pew Research shows that 70% of all Facebook users – and 41% of all Americans – check their Facebook accounts on a daily basis. Instagram use and Twitter use has thus far proven to be slightly less compulsive; the percentage of those platforms’ users who check in every day came in at 49% and 36%, respectively. But only 3% of LinkedIn users check their accounts once every 24 hours, perhaps proving that there are fewer Internet users wedded to their work than to their networks. Experts suggest that social media addicts ready to put some space between themselves and their Facebook friends download an add-on that allows Facebook users to hide their metrics – the numerical tallies of their accounts’ friends, and their posts’ likes and comments. Quantitative updates like these are supposedly what encourage many social media users to log on – there’s even a word for this condition: “Metrics anxiety.” I’ll end here – I need to run to check how many of my friends liked the selfies that I recently posted on Facebook…

 

 

 

 

 

 

 

Shorter and Simpler, Yes – But Is IBM’s New Cloud Services Agreement Any Sweeter?

Posted in Cloud Computing, Terms of Use

IBM has been receiving rave reviews in the media for simplifying its Cloud Services Agreement to a mere two pages in length. And yes, the Agreement also boasts healthy margins and a normal font. But does the Agreement’s reasonable length equate to reasonable terms?

After all, from a customer’s perspective, shorter doesn’t necessarily mean better.

Certainly IBM’s new Agreement was designed to reduce negotiation. According to the International Association for Contract & Commercial Management, which declared IBM a finalist for an award because of the Agreement’s simplified approach, IBM has competitively benchmarked the terms of the new Agreement and IBM apparently feels that the terms will meet the business requirements of most enterprise clients.

Indeed, of the customers presented with IBM’s new Agreement, 80 percent have reportedly signed it without negotiation. The remaining 20 percent, however, still chose to treat the new Agreement – simplified or not – as merely IBM’s opening draft.

Upon review of the new agreement, it becomes clear why these why these “20 percenters” chose to negotiate.

For example, the first section of the Agreement is entitled Service Performance and Commitments, but the 208 words of the section contain little in the way of actual commitments; the Cloud Services are merely “designed” to be available 24/7, and while IBM agrees to provide notice of scheduled maintenance, there are no limits on the timing or duration of such maintenance.

Customers must also review the Service Description — in a separate document — to determine what, if any, license rights, data security obligations, service levels and renewal options will apply to the Agreement.

At times, the Agreement does provide terms that a customer will want to see — such as an indemnity against third-party patent and copyright claims — but the value of these terms is often limited. (Even in the shortest contract, the devil is still in the details.)

Customers must also be careful not to skip over short statements with potentially broad implications. For example, while IBM does not ask the customer to expressly indemnify IBM, the Agreement does contain a very short — and very vague — statement making the customer “responsible for” any “violation of law or any third party rights caused by” by the customer’s content uploaded to the service or other use of the service. Could this statement require that a customer indemnify IBM for claims arising from any such violation? If so, the customer’s liability for such third-party claims could be unlimited, because the Agreement’s limitation-of-liability provision protects only IBM, not the customer.

Service providers are often urged to keep an agreement as “short and simple” as possible, and this is unquestionably an important goal that will help to reduce costs for both parties. At the same time, anyone reviewing such an agreement should bear in mind that it may have been “shortened and simplified” by the omission of key legal protections.

Ultimately, an informed customer wants an agreement that is short, simple and sweet.

Good Rep: Social Media Assets in M&A Transactions

Posted in Uncategorized

As we previously reported, a company’s social media pages and profiles, and the associated followers, friends and other connections, may constitute valuable business assets. In our experience, however, social media assets often receive little attention in M&A transactions. Purchasers in such transactions generally require sellers to make robust representations and warranties regarding the target company’s assets, but a typical purchase agreement may give social media assets only cursory treatment or, in some cases, not explicitly cover social media assets at all. In an attempt to rectify this oversight, this article outlines a set of representations and warranties that a purchaser may consider to address issues relating to a target company’s social media assets in an M&A context.

To begin, it is necessary to define the category of assets at issue. In defining this category—which we will refer to as “Social Media Accounts” for convenience—a purchaser may wish to capture a broad swath of online assets not limited just to a company’s pages and profiles on the major social networks (although those should certainly be addressed), including all accounts, profiles, pages, feeds, registrations and other presences on or in connection with any:

  • social media or social networking website or online service;
  • blog or microblog;
  • mobile application;
  • photo, video or other content-sharing website;
  • virtual game world or virtual social world;
  • rating and review website;
  • wiki or similar collaborative content website; or
  • message board, bulletin board or similar forum.

Armed with a broad definition of “Social Media Accounts” as described above, a comprehensive set of social media representations and warranties would require the seller to provide a list of all Social Media Accounts that the target company uses, operates or maintains, and to identify, for each such Social Media Account, any account names, user names, nicknames, display names, handles and other identifiers registered, used or held for use by or for the target company (which we will refer to collectively as “Social Media Account Names”).

The purchaser may then ask the seller to make some or all of the following representations and warranties with respect to Social Media Accounts and Social Media Account Names:

  • None of the Social Media Account Names infringes or otherwise violates any trademark rights or other intellectual property rights of any third party.
  • All use of the Social Media Accounts complies with and has complied with (i) all terms and conditions, terms of use, terms of service and other agreements and contracts applicable to such Social Media Accounts, and (ii) applicable law and regulation.
  • The target company has implemented and enforces an employee social media policy that:
  • provides that the company, and not any company employee or contractor, owns and controls the Social Media Accounts and Social Media Account Names (including all associated information and content, all relationships, interactions and communications with fans, followers, visitors, commenters, users and customers, and all associated good will and opportunities);
  • requires all employees and contractors to relinquish to the company all Social Media Account Names, passwords, and other log-in information for the Social Media Accounts upon termination of employment or engagement or at any other time upon company’s request;
  • includes appropriate guidelines and restrictions regarding the use of (i) the Social Media Accounts, and (ii) personal social media accounts, including, in each case, with respect to endorsements, attribution, disclosure of proprietary information and violation of intellectual property rights; and
  • complies with applicable law and regulation.
  • Each of the target company’s employees and contractors has agreed in his or her company employment agreement to comply with such social media policy.
  • The contemplated transaction will not result in the loss or impairment of the target company’s ability to use, operate or maintain any Social Media Account or Social Media Account Name, or in the breach of any terms of use, terms of service or other agreements or contracts applicable to such Social Media Accounts.

It should be noted that a set of representations and warranties incorporating all of the points above may be more than is practical or necessary for many transactions. Purchasers will need to determine in each case how robust the social media representations and warranties should be based on the particular circumstances of the transaction, including the nature of the target company’s business, the extent of the target company’s use of social media and the relative negotiating positions of each party.

One last caveat: We use the term “assets” in relation to a company’s social media pages and profiles advisedly, given that their legal status as property is tenuous at best (in almost all cases, these “assets” could be taken away by the third-party operators of the relevant social media platforms). But the issues addressed above are issues that we have seen arise repeatedly in reported cases, so we hope that this article will at least be helpful in thinking through some of the points that a purchaser should consider when acquiring a target company that uses social media in its business.

Status Updates

Posted in Status Updates

Poster’s remorse. It’s official – as of January 1st, social media sites accessible in California had to begin allowing users younger than 18 “to remove, or to request and obtain removal of” posts they regret. The legislation, known as the “Eraser Button Law,” applies to all web sites that are directed at minors or that have actual knowledge of their use by a minor. It also prohibits such sites from advertising adult products such as alcohol and tobacco to minors and from collecting, using, or disclosing minors’ personal information for such advertising, or allowing others to do so. Web site operators can limit their need to comply, at least with respect to new users, by not asking their users’ ages or birth dates. Critics of the Eraser Button law say that, since most sites already allow users to delete their posts, it’s unnecessary. Free speech advocates claim that, by not providing an exception for information in the public interest, the law violates the First Amendment.

Off the grid. It’s widely recognized that social media use can cause depression, expose users to abuse by anonymous Internet bullies, and even cost less-than-scrupulous users employment and college admission opportunities, but is that enough of a reason to forego it? Apparently it is, at least for some people. News outlets occasionally feature anecdotes describing individuals who have sworn  off Facebook and Twitter, and, according to one study, there were 3 million fewer teens between the ages of 13 and 17 on Facebook in 2014 than there were in 2011(though it’s uncertain whether they switched to different platforms or quit social media altogether). But, “even if you join the abstainers, social media is clearly not going away,” according to The Independent. Facebook’s “ubiquitous nature” – everyone and their mother (literally) is on it –makes people concerned that quitting the most popular social media platform will cause them to miss out on something. For new social media outlets to stand the test of time, they’ll have to fill a need or a desire that the existing major platforms don’t. One venture attempting to do that is Spayce, a program that uses mobile technology to connect people with common interests who are within a short distance of one another. Social networks based on proximity have succeeded before, especially in the online dating world.

A start-up search engine. Following its product launch 18 months ago, the French start-up Qwant is attempting to wrest a piece of the search engine market from Google, and the company isn’t relying on the controversy currently surrounding Google’s inordinate power in Europe to do the job. Qwant hopes to succeed where other European search engines have failed by adopting a business model that, unlike Google’s, does not involve selling advertising using the information the search engine learns about users’ individual preferences. Qwant plans to further distinguish itself from Google by including social media posts in its search results. That said, the start-up does seem to be benefitting from Europeans’ wariness of Google’s unfettered dominance of the online world; France’s education ministry has announced that it will start using Qwant’s child-friendly search engine in some French schools next year despite the fact that Google plans to develop a similar product.

 

 

 

A List of Lists

Posted in Uncategorized

Well, it’s that time of the year, when our news feeds are dominated by lists of predictions for the coming year. We thought it might be helpful to our readers to gather links to various technology and social media-related predictions for 2015. We’ll post additional links here over the coming weeks:

Technology & Social Media Law

The Top Ten Internet Law Developments of 2014

Five Media-Law Trends To Watch in 2015

What You Need to Know About the New Tech Laws For 2015

A UK Technology Lawyer’s Description of What To Expect From IT Law in 2015

 

Digital & Social Media Marketing

Corporate social media fails of 2014: big brands make big mistakes

Brands: Avoid These Social Media Mistakes in 2015

Top 3 Technology Trends Marketers Should Watch in 2015

The Top 7 Social Media Marketing Trends That Will Dominate 2015

21 Digital Marketing Trends & Predictions for 2015

The Future of Social Media: How Will It Impact Marketing, Sales, and Customer Service?

2015 Mobile/Location-Based Marketing Predictions From 10 Experts

What’s on the Horizon for Mobile Marketing?

8 Bold Predictions for Digital Marketing in 2015

6 Predictions About the State of Digital Marketing in 2015

Information Technology

Top IT Predictions for 2015

The Top 10 Strategic Technology Trends for 2015

Top 10 Technology Predictions for 2015

 

Apps

5 Predictions of How Apps Will Change in 2015

8 Predictions for Mobile App Development in 2015

10 Mobile Enterprise App Solutions Predictions for 2015

 

E-Commerce

Data Driven Predictions for 2015

20 E-Commerce Trends and Predictions for 2015

Ecommerce Trends 2015: 19 Predictions From Top E-Commerce experts

Status Updates

Posted in Status Updates

Fake-out stakeout. For several months now, we’ve been covering the increasingly prevalent use of social media by law enforcement agencies conducting criminal investigations. In one such instance, the FBI sent a link to a fabricated news story to the MySpace page of a high-school-bombing-threat suspect to lure him into downloading malware that revealed his whereabouts. In another, the DEA set up a fake Facebook page in the name of a woman whom the agency was investigating as bit player in a federal drug investigation. All of the scenarios present a unique group of ethical and legal questions that are being debated in the media and in the U.S. court system. Now, a federal judge in New Jersey has sanctioned one such social media evidence gathering tactic: Denying a criminal defendant’s motion to suppress pictures from his private Instagram account, U.S. District Judge William Martini held that police officers did not need a search warrant when they accessed those pictures by friending the defendant using a fake Instagram account. The judge referenced a New York federal district court opinion holding that the government did not violate the Fourth Amendment when it accessed a criminal defendant’s Facebook profile through one of the defendant’s Facebook “friends,” a cooperating witness.

Goggle gaffes? With a market cap of more than $382 billion, incalculable influence over a variety of business sectors, and a name that earned a place in the Oxford English Dictionary in 2006, Google is clearly on a roll as we enter the New Year. Yet, as Forbes contributor Gene Marks notes, the company has had its share of outright flops, and it invests an awful lot of money in products that no one wants to buy. For example, a “solution in search of a problem,” Google Glass has yet to get off the ground. And, because it would likely require giving the government more centralized control over the U.S. transportation system, the driverless car for which Google recently introduced a prototype is apparently years away from being a viable option. But there’s no chance of these seemingly profitless projects taking the tech giant down, according to Marks. Awash with cash from other profitable revenue streams, the company can afford to invest in dream projects that aren’t likely to bring in money anytime soon.

Porn again. Illinois became the most recent state to pass a law criminalizing “revenge porn,” sexually explicit photos publicly disseminated (most often by posting them to the Internet) without the subject’s consent, usually by a jilted lover seeking retribution, or by someone who has obtained the pictures by hacking into the victim’s smartphone or computer. The measure, signed into law on December 29, 2014, by Democratic Governor Pat Quinn, makes posting revenge porn a Class 4 felony punishable by one to three years in prison and a fine of up to $25,000. Fourteen other states – including New York, Utah, Texas and California, which recently convicted a man for posting nude photos of his ex – have similar laws. In those states without revenge porn statutes, there are other potential avenues for combatting revenge porn, as we discussed in an early 2014 blog post.

Post Wisely

Posted in FDA Regulations

From our sister blog, MoFo Tech:

Two FDA Guidelines Help Life Sciences Companies Solve Social Media Conundrums

Social media presents new challenges for life sciences companies. Companies that post about their products on space-constrained social media platforms such as Twitter or Facebook don’t have the luxury of a full page or a long voiceover listing risks or side effects. And it’s unclear how to respond to misleading information about products posted online by third parties. In June, the Food and Drug Administration produced two much-anticipated draft documents that provide some guidance in each case.

The “Twitter Guidance”

“Internet/Social Media Platforms with Character Space Limitations— Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices” (found at http://1.usa.gov/1kGYdgK) specifies that a brand should, within the post:

  • Include the brand and established name, dosage form, and ingredient information
  • Accompany benefit with risk information
  • Provide a link to a page devoted “exclusively” to risk information.

If both benefit and risk information can’t be included in the limited space, the company should consider using a different platform, the FDA advises. “The Twitter Guidance provides a fictional example to show that it’s not impossible to produce an acceptable tweet. But it is very difficult,” says Erin M. Bosman, chair of the Product Liability Practice Group at Morrison & Foerster. Companies that go the Twitter route may want to focus on products with only a few risks or
risks that are easy to understand, she says.

Correcting third-party Misinformation

This guidance, called “Internet/Social Media Platforms: Correcting Independent Third-Party Misinformation About Prescription Drugs and Medical Devices,” can be found at http://1.usa.gov/1kHcfii.

“Companies can breathe a sigh of relief with this guidance because it says companies are not obliged to correct third-party information,” Bosman says. “This reduces the need to monitor and mine massive quantities of Internet data about their products.”

The FDA suggests guidelines for voluntary correction of third-party misinformation, such as posting the correction in the same area or forum where the misinformation is found, when possible. Bosman suggests that companies should have “a standard policy about the type of information to correct. For example, misinformation that presents serious health risks should be a higher priority than correcting more innocuous misinformation.” She also recommends formulating a standard response for correcting common misinformation in order to ensure accuracy and consistency.