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Socially Aware Blog

The Law and Business of Social Media

Status Updates

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  • In-tweet purchases. Twitter is testing the ability for its users to make purchases directly from tweets. The popular social network is working with a number of sellers, nonprofits and artists—as well as a small handful of social shopping and e-commerce platforms—to test “in-tweet purchases,” which will enable users to hit the “Buy” button straight from a tweet and compete a purchase in a few taps. This new functionality is only available to a small percentage of Twitter users for now, but availability is expected to broaden over time.
  • What’s the password? Back in 2012, we reported on then-new section 980 of the California Labor Code, which restricts employer access to “personal social media” (including usernames and passwords) of employees and applicants for employment. SFGate reports that, regardless of section 980, many state law enforcement agencies still require the disclosure of social media passwords, taking the position that the law only applies to private employers. Some California lawmakers are trying to close this apparent loophole through new legislation.
  • Get me one of those Trapper Keepers! It’s that time of year again, when kids head back to school and parents head to the stores for school clothes, school supplies, and much more. The National Retail Federation estimates that spending on back-to-school shopping will reach nearly $75 billion this year—and according to Crowdtap, a remarkable 64 percent of shoppers say that social media will play a role in their decisions on what to buy, with nearly 40 percent of those shoppers looking to Pinterest for deals and discounts.

Status Updates

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  • Lawsuit panned by Court. The popular ratings app Yelp has been cleared by a federal appeals court of allegations in a class action lawsuit that the company extorted advertising dollars from businesses by threatening to remove positive user reviews or to highlight negative ones. The U.S. Court of Appeals for the 9th Circuit, affirming a District Court ruling, found that the plaintiffs failed to present sufficient evidence that any such coercion had occurred. Yelp says it has never altered a business review for money. The appeals court said that, in any case, the conduct alleged by plaintiffs amounted only to “hard bargaining,” not to extortion under federal law.
  • Shuttered images. Not long ago, Twitpic was the best-established third-party image-sharing service on Twitter. But Twitpic just announced that it is shutting down in the wake of a drawn-out trademark battle with Twitter. Twitpic’s founder said that Twitter threatened to cut off Twitpic’s access to its application programming interface, or API, if Twitpic did not abandon its trademark. The API involves the software tools that allow developers to tap into Twitter’s platform. Twitter responded that while Twitpic could use that name, “we have to protect our brand, and that includes trademarks tied to the brand.”
  • Drinking and posting don’t mix. In St. Joseph, Missouri, the local police have informed bar owners that, under state law, not only are they prohibited from sponsoring “all-you-can-drink” specials, but they cannot advertise on social media the prices associated with drink specials. The police take the position that the applicable state law, which reportedly restricts the advertising via traditional media of the exact prices of drink specials, applies to social media as well. The bar owners have objected, and the St. Joseph city attorney is seeking clarification from the state as to the scope of the statute.

Status Updates

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  • We can work it out. Actress Katherine Heigl and the Duane Reade chain of drugstores have settled a $6 million federal suit filed by Heigl this past April in the U.S. District Court for the Southern District of New York. The suit centered on Duane Reade’s March 2014 tweet, “Love a quick #DuaneReade run? Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore,” which linked to a paparazzi photo of Heigl carrying a Duane Reade shopping bag. The actress had alleged a violation of Section 43(a) of the Lanham Act, which prohibits false advertising, and of Section 50 of the New York Civil Rights Law, which prohibits the use for advertising or trade of a living person’s name, portrait, or picture without having first obtained that person’s written consent. As part of the settlement, Duane Reade has reportedly agreed to make a contribution to the Jason Debus Heigl Foundation.
  • With a little help from my friends. Facebook is reportedly testing a new mobile application feature that permits users to search by keyword through old posts from their friends. This innovation—much like the search functionality in cloud-based mobile mail applications—could make it easier for people to revisit otherwise difficult-to-find content, content that may have been “pushed off the page” in light of the chronological structure of social media news feeds.
  • All together now. What if hundreds of thousands of people all agreed to tweet at the same time? It happens! Although countless folks flock to social media sites on or around New Year’s Eve, according to Twitter’s Senior Director of Site Reliability Engineering, most users in Japan “tweet-in the new year” precisely at midnight local time—for example, take January 1, 2012, when Twitter “ground to a halt” as users in Japan tweeted over 16,000 times per second. Wired provides an interesting take on Twitter’s “stress testing” framework, aimed at handling incredibly high-volume traffic like this.

Status Updates

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  • Blind spots. Self-driving cars are an excellent example of innovation, and the ones with Google technology have already traveled more than 700,000 miles. But what if a self-driving car doesn’t “see” a new traffic light or a previously nonexistent traffic sign? This could result in traffic citations, or worse. But Google says it’s taking steps towards eliminating this type of problem and that the future of self-driving cars is essentially unlimited.
  • Getting personal. As the name suggests, Michigan’s Video Rental Privacy Act limits the ability of companies to disclose information regarding customers’ video rental activities. But does the law cover magazines as well as videos? In a case filed by a consumer who alleged that a magazine company had improperly disclosed her personal information, along with information about the magazines to which she subscribed, the U.S. District Court for the Eastern District of Michigan recently held that the law does in fact apply to magazines. The court noted that the statute is directed to companies “engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings,” and that magazines constitute “other written materials.”
  • Geotargeting crime. In a new effort to use technology to foil credit-card fraud, a company called BillGuard is testing a system that would monitor the precise whereabouts of mobile devices to detect possible payment issues. The tech firm is tracking mobile-phone locations in an attempt to stay one step ahead of fraudsters. Because smartphones are almost always near their owners, the technology would register and flag those occasions when a phone is not near the owner’s credit card. The technology would only be used with the consumer’s consent.

Status Updates

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  • What’s not to like? The National Labor Relations Board has ruled that an employee’s Facebook “like” approving of another employee’s statements about their employer may constitute “concerted activity” under federal labor law. Two employees—a waitress and a cook—had been fired by a sports bar in Connecticut for complaining about the employer on Facebook, but the Board found on August 22 that their activity was protected under the National Labor Relations Act and the firings were unlawful.
  • Hello Siri, I need money. According to an article in The American Banker, banks should explore the potential of wearable computing devices. So-called smart watches and similar devices may prove useful for quick banking updates such as fraud alerts, balance checks, and funds transfers. They should also work well with voice-activated banking, enabling customers to ask a “personal assistant” like Apple’s Siri to answer questions or do simple banking tasks.
  • Likewise. A U.S. district judge in Florida has ruled against the creator of a Facebook fan page for a TV show in a dispute with BET, the producer of the show. Stacey Mattocks started the fan page and amassed millions of “likes,” but lost them after a falling out with BET that resulted in Facebook transferring the “likes” to BET’s own page for the show. Mattocks sued, arguing that BET converted her business interest in the “likes,” but the court held that the “likes” were not her property and could not be converted.  The judge said that “liking” a Facebook page is merely an individual user’s expression of enjoyment or approval and noted that a user can revoke a “like” at any time. Therefore, the court determined, to the extent a “like” belongs to anyone, it belongs to the user and not to the person who created the page.

Status Updates

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  • Breaking the ice. No one expected that people dumping buckets of ice water over their heads for charity would become the viral phenomenon that it has. One key technical secret to the success of the “ice bucket challenge” may have been Facebook’s adoption of “autoplay” videos. Autoplay videos, which are muted by default, attract attention to video content on the social network by moving without being prompted—a great way to help spread memes.
  • What happens next will shock you! “Clickbait”—provocative headlines that often lead to less-than-compelling content—has been around for quite a while, and some folks are striking back. Facebook is reportedly trying to fight clickbait by making user-friendly changes to its News Feed that promote more informative headlines. Meanwhile, Twitter user @SavedYouAClick retweets clickbait-y hyperlinks with a brief summary of the actual content. Spoiler alert, indeed.
  • TMI? Should psychotherapists have social media profiles that are open for patients’ perusal? Although therapists are often reluctant to share personal details with patients IRL (in real life), that may not be the case on social media… which can blur the boundaries between personal and professional. Meanwhile, ethical rules governing the online interaction between therapists and patients are just starting to take shape. The Washington Post offers an interesting take on the role of social media in the therapist/patient relationship.

UK’s Financial Services Regulator Issues Draft Guidance on Social Media – Should We Favourite* or #Fail?

Posted in Financial Institutions

On August 6, 2014, the UK’s financial services regulator, the Financial Conduct Authority (FCA), issued long-awaited draft guidance on the use of social media in financial promotions by regulated financial institutions.

But if financial services firms operating in the UK were hoping that this guidance would provide them with a clear framework to help jump-start their social media strategies, they will be disappointed. For one thing, the guidance is focused on financial promotions, so firms will need to continue to evaluate all of their social media activities carefully against existing FCA rules.

The proposed guidance – “GC14/6 Social media and customer communications: The FCA’s supervisory approach to financial promotions in social media” (“Guidance”) – is open for consultation until November 6, 2014. The FCA intends to continue discussions with the financial services sector during the consultation period. It has also set up the hashtag #smfca for those wishing to discuss the Guidance on Twitter.

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Status Updates

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  • Death in the digital age. When someone dies, his or her heirs or executor will have broad rights to access the deceased person’s letters, documents and other physical assets. Delaware has just become the first state to enact legislation giving heirs and executors the same rights to access a decedent’s digital assets – including his or her social media accounts – as they have to physical assets. The law only applies to people whose estates are located in Delaware and processed under Delaware law. Companies such as Google oppose laws of this type, asserting that they would lead to privacy violations.
  • The drive to curb Glass.  As Google Glass becomes more widely available, a number of states are considering legislation that would restrict drivers from using Glass and similar wearables on safety grounds. Even if ultimately adopted, however, would such laws be effective? As first reported in the Wall Street Journal, Prof. Adam Gershowitz of William & Mary Law School, in a recent research paper, argues that such laws would be “practically unenforceable.” Prof. Gershowitz notes that most of the contemplated bills only prohibit using Glass while driving, yet a police officer would have no real way of knowing whether a driver wearing Glass is in fact using the device. And while two bills under consideration would more broadly ban wearing Glass and other head-mounted wearables while behind the wheel, these bills overlook smart watches.  (We’ve covered in an earlier blog post the difficulty law enforcement agencies have had going after Glass-wearing drivers under laws adopted in the pre-wearables era; that post can be reviewed here.)
  • And while we’re on the topic of driving and technology . . . . Every new popular technology or app spawns new questions of etiquette and proper behavior. In the case of the fast-growing Uber service, lots of people who aren’t Uber drivers find themselves being accosted for a ride by potential passengers. In other words, people keep getting into strangers’ cars. Just make sure that the driver isn’t wearing Glass, okay?

Status Updates

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  • Beyond wearables. Wearable Internet devices like Google Glass have made an impact. Could “nearables” be the next new thing? That’s the name that some people are giving to sensors or “beacons” attached to ordinary objects or even to pets. Could a sticker attached to your dog track how active it has been and where it has gone?  What could happen if an Internet-active sticker were attached to a retail product at a store?
  • Changing timelines. Twitter has changed the way in which it prepares a person’s timeline of tweets. Now, the timeline will include not just tweets from users whom the person follows, but also tweets that Twitter, according to its algorithms, thinks are “popular or relevant” to the person. The idea, according to Twitter, is to make the timeline “even more relevant and interesting.”
  • Expanding the vine. The social app Vine has announced that its signature six-second videos can now be created with any high-end camera and software, not only with smartphones’ cameras.  This change is expected to attract more brands to the rapidly growing social network.

Status Updates

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  • Reality test. Facebook has begun to test a new feature that marks as “satire” material from satirical or comedic websites that appears in the guise of “fake news.” Some users, evidently unable to tell reality from clever fiction, requested that the social network tag these posts in this way.
  • Got to be a morning after.  A new social networking app called Sobrr promises users that their posts  will disappear within 24 hours. No more regrets, presumably, for those posts and friendships we may regret in the cold light of dawn. The idea was born in the aftermath of a bachelor party in Las Vegas, or so they say.
  • No kids allowed. There’s nothing like sharing your child’s achievements on social media, as far as many parents are concerned. But because of privacy concerns, or just because they want the decision to share to be their child’s, an increasing number of parents are choosing to keep their children’s accomplishments, and even their names, off the social networks.