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Socially Aware Blog

The Law and Business of Social Media

Socially Aware Made the Blawg 100 Again!

Posted in Uncategorized

We are delighted to announce that Socially Aware has been included in the 10th Annual Blawg 100, a list of “100 excellent legal blogs” selected by the staff and readers of the ABA Journal, the American Bar Association’s flagship magazine.

The ABA Journal’s editorial staff notes that it compiles the BLAWG 100 list as a service to its readers, “pointing them to a collection of some of the very best legal writing and commentary on the Web.”

We’re honored to have been selected from among the more than four thousand legal blogs in the ABA Journal’s directory. And we’re flattered to be listed alongside many of our own favorite law blogs, such as Eric Goldman’s Technology & Marketing Law Blog and Rebecca Tushnet’s 43(B)log.

We’d like to thank our many contributors to the blog and our wonderful readers.

Here’s to another great year!

Yelp Case Shows CDA §230 Still Has Teeth

Posted in Online Reviews, Section 230 Safe Harbor

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2016 has been a challenging year for Section 230 of the Communications Decency Act (CDA) and the website operators who depend on it for protection against liability stemming from user-generated content. An unusually large number of cases this year have resulted in decisions holding that the defendant website operators were not entitled to immunity under Section 230. For example, as we’ve discussed recently, in Hassel v. Bird, the California Court of Appeal held that Section 230 did not prevent the court from ordering Yelp to remove from its website allegedly defamatory reviews posted by users, even though Yelp was not a party in the underlying defamation suit.

We are working on an article surveying some of the recent cases holding that Section 230 did not apply. But in the meantime, it is important to remember that Section 230 remains a powerful shield against liability and that defendants continue to wield it successfully in many cases. The Ninth Circuit’s recent decision in Kimzey v. Yelp is one such case.

Kimzey arose from two negative Yelp reviews that user “Sarah K” posted in September 2011 about Douglas Kimzey’s locksmith business in the Seattle area. Sarah K’s reviews were extremely negative and rated Kimzey one out of five stars in Yelp’s multiple-choice star rating system. In all caps, she warned Yelpers that “THIS WAS BY FAR THE WORST EXPERIENCE I HAVE EVER ENCOUNTERED WITH A LOCKSMITH. DO NOT GO THROUGH THIS COMPANY . . . CALL THIS BUSINESS AT YOUR OWN RISK.” Continue Reading

Social Links: IMDb sues over right to post actors’ ages; Facebook tests jobs feature; Pinterest adopts “tried it” button

Posted in Cyberbullying, E-Commerce, First Amendment, Free Speech, Litigation, UK, Wearable Computers

The Internet Movie Database (IMDb) has filed suit to overturn a law that requires the popular entertainment website to remove the ages or birth dates of people in the entertainment industry upon request.

Vine might not be history after all.

Twitter users posted more than one billion election-related tweets between the first presidential debate and Election Day.

Facebook is testing a feature that allows company Page administrators to post job ads and receive applications from candidates.

People who create or encourage others to use “derogatory hashtags” on social media could be prosecuted in England and Wales.

A new “tried it” checkmark on pins will allow Pinterest users to share the products and projects they’ve purchased or attempted.

Did social media ads allow political campaigns to circumvent state laws prohibiting the visible promotion of candidates within a certain distance of polling places?

The Eight Circuit held that a college has the right to expel a student from its nursing program for inappropriate social media posts about his classmates, including the suggestion that he would inflict on one of them a “hemopneumothorax”—a lung puncture.

Law enforcement officials are increasing their use of social media to locate missing persons.

An unemployed single mother in California is facing several misdemeanor charges for selling her ceviche over social media.

Coming soon to a vending machine near you: Snapchat Spectacles (but only if you live in a densely populated area like New York or Los Angeles).

Social media analytics firms claim that social media did a better job at predicting Trump’s win than the polls.

Preparing for a Data Security Breach: Ten Important Steps to Take

Posted in Data Security

A close-up on an abstract design of a display, which is warning about a cyber attack. Multiple rows of hexadecimal code are interrupted by red glowing warning text. Part of the display is reflected on a shiny surface. The image can represent a variety of threats in the digital world: data theft, data leak, security breach, intrusion, etc...

Is your company prepared to respond to a data security breach? For many companies, even reading this question causes some anxiety. However, being prepared for what seems like the inevitable—a security breach—can be the difference between successfully navigating the event or not. While we still hear some companies say, “That would never happen to our company!” a significant breach can happen to any company.

In light of this and the close scrutiny that the high-profile breaches reported over the past year have received, many companies have taken the opportunity to consider their preparedness and ability to respond quickly and decisively to such an incident. We have prepared for our readers who are in-house attorneys or privacy officers the following checklist highlighting some steps that companies may consider taking so that they can be better prepared in the event that a significant breach incident occurs.

  1. Make Friends With Your IT/IS Department.

It is important to be familiar with your company’s risk tolerance and approach to information security in order to develop an understanding of your company’s security posture. The time to explore these issues isn’t after a breach has happened, so ask your colleagues in your company’s information technology or information security departments the basic questions (e.g., What’s DLP?) and the tough questions (e.g., Why haven’t we addressed the data security concerns raised in last year’s audit?). You would rather learn, for example, that your company does not encrypt its laptops before one is stolen. Continue Reading

Now Available: The November Issue of Our Socially Aware Newsletter

Posted in Advertising, Data Security, Social Media Policy

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

In this edition, we provide five tips for reducing potential liability exposure in seeking to exploit user-generated content; we examine a Ninth Circuit decision highlighting the control that social media platform operators have over the content and data that users post to those platforms; we discuss five questions that companies should ask themselves to help prepare for a ransomware attack; we explore a controversial California court decision that narrows an important liability safe harbor for website operators; we review a federal court decision that illustrates the importance of securing clear and affirmative assent to electronic contracts; we take a look at some recent enforcement actions that indicate a shift toward requiring clearer and potentially more burdensome disclosures from companies engaged in interest-based advertising; and  we examine a recent Northern District of California decision holding that a mobile app developer was not be liable under the Telephone Consumer Protection Act for a text initiated by one of the app’s users.

All this—plus an infographic illustrating the impact of incorporating user-generated content in marketing campaigns.

Read our newsletter.

Social Links: LinkedIn’s new feature estimates salaries; states grapple with digital-asset-inheritance laws; insurance company wants to base rates on applicants’ Facebook posts

Posted in Big Data, Ethics, Litigation, Terms of Use, UK

Because it bases its assesments on job title, location and industry, LinkedIn’s new Salary feature might be more accurate than are other online compensation estimation tools.

States are trying to pass laws that balance bereaved people’s desire to access their deceased loved ones’ social media accounts with the privacy interests of the account holders and the people with whom they corresponded. Without such laws, access to a deceased person’s digital assets might depend on the various social media platforms’ terms of use.

In lawsuits, social media has occasionally made it easier to serve process on adverse parties, but it has also made it more difficult to ensure that jurors remain unbiased.

A UK company wants to set car insurance premiums using an algorithm that analyzes car owners’ Facebook posts for pertinent personality traits?! The plan likely won’t go far; it violates Facebook’s platform policy.

Kenya deported a registered refugee for posting to social media his support of the U.N. secretary-general’s firing of a Kenyan commander of a peacekeeping mission in South Sudan, the refugee’s native country.

Thinking of posting a photo of yourself in the voting booth on Tuesday? Not so fast. In many states it’s illegal to share on social media photos of completed ballots and photos of yourself inside a voting booth. Courts all over the U.S. are hearing challenges to these so-called “ballot selfie” laws.

Does a lawyer violate ethics rules by purchasing the names of competing lawyers or law firms as keywords that improve the purchasing lawyer’s own rank in Google search results?

In the three years since its launch, an app called Scholly, which matches students with a personalized list of scholarships, has been downloaded over a million times. Here’s some advice for other social entrepreneurs from the company’s 25-year-old founder and CEO.

Some researchers believe the likes, status updates and photos posted to social media platforms will someday be the source material for breakthroughs in the field of psychiatry.

A UK solicitor was fined by a professional conduct regulator for posting a series of “unprofessional and offensive” tweets bragging about his victory over vulnerable adversaries.

European Commission Publishes Draft Regulation Prohibiting Geo-Blocking by Online Traders and Content Publishers

Posted in Compliance, E-Commerce, European Union

As part of the European Commission’s Digital Single Market initiative, the European Commission has published a draft Regulation aimed at preventing traders from discriminating against customers located in other EU Member States by denying those customers access to e-commerce sites, or by redirecting those customers to websites that offer inferior goods or sales conditions—a practice known as geo-blocking. The proposed new rules will benefit both consumers and businesses that purchase goods or services within the EU (excluding resellers).

The European Commission believes that geo-blocking and discriminatory practices undermine online shopping and cross-border sales within the EU.

The Regulation, which must still undergo review by the European Parliament and the Council of the EU, may change and is expected to be in force in 2017 (except the ban on discriminating against customers of electronically supplied services, which is expected to be effective beginning July 2018). When it is adopted, the Regulation will automatically take effect in all Member States without each Member State having to implement it into national law. Continue Reading

Social Links: IoT Causes Web Outage; YouTube Makes Endorsement Disclosure Convenient; NFL’s Social Media Policy Imposes Fines

Posted in Cyberbullying, Data Security, Endorsement Guides, Internet of Things, Marketing, Social Media Policy

The Internet of Things is apparently to blame for the Web outage that paralyzed the online world earlier this month.

Justin Timberlake took down his “ballot selfie” from Instagram after Tennessee authorities made clear that it was illegal.

Presumably in order to help facilitate compliance with guidance from regulators in the United States, United Kingdom and elsewhere, YouTube is making available to video creators an easy-to-use “sponsored content” notification that they can opt to have appear during the first few seconds of their videos.

Will blockchain technology be the next big wave of disruption for the music industry?

With Tinder’s new feature, online daters can be sure their profiles feature the photos most likely to get right-swipes.

When the chief digital officer at New York’s Metropolitan Museum of Art lost his job, he turned to social media for advice.

The NFL’s new social media policy promises to impose hefty fines on member teams that post videos or animated GIFs of games, or use Facebook Live or Periscope to stream anything in the stadium.

When a Russian tech entrepreneur’s friend died, she used artificial intelligence and his old text messages to create a futuristic memorial.

Employed but curious about new job opportunities? Now you can change your LinkedIn profile to secretly signal to recruiters that you’re in the market for a new gig.

Guess what percentage of Americans one researcher predicts will own a virtual reality headset in 2016?

Could Google Flights be the ticket to finding the best possible fare to your 2016 winter holiday destination?

UK Consumer Protection Regulator Cracks Down on Undisclosed Endorsements and “Cherry Picking” Reviews on Social Media

Posted in Advertising, Influencer Marketing, Online Endorsements, Online Reviews, UK

Thumbs Up on Social Technology and Internet Set

Social media is reportedly rife with influencers promoting or reviewing products or services without disclosing compensation or other consideration that they’ve received for such endorsements. The Competition and Markets Authority (CMA), the UK’s consumer protection regulator, is stepping up efforts to combat such undisclosed endorsements.

Following a ruling against an influencer marketing company, Social Chain Ltd, the CMA has warned 15 companies and 43 “social media personalities” who used Social Chain to publish content on social media that they could be in breach of UK consumer protection laws.

As we have discussed many times in Socially Aware, the advertising landscape has undergone a dramatic transformation over the past decade. The rise of social media and ever-increasing levels of Internet access across the world have made social media advertising a strong challenger to more traditional—and expensive—advertising methods, such as television advertising.

Of course, there is nothing novel in companies seeking to use celebrities to attract attention to and create excitement for their brand messages. But what has changed is the medium; when a consumer follows a celebrity on YouTube, Instagram, Facebook, Snapchat or Twitter (especially a social media personality who has become famous as a result of being on YouTube, Instagram, etc.), it’s not always easy to distinguish between a genuine opinion and an advertisement. Continue Reading

Second Circuit: Email Stored Outside the U.S. Might Be Beyond Government’s Reach

Posted in Litigation, Privacy, Stored Communications Act

Abstract futuristic blurred background with envelope symbols (fast mail and modern communication concept)

As a result of the Second Circuit’s recent opinion in Microsoft v. United States, the U.S. government likely can no longer use warrants issued pursuant to the Stored Communications Act (“SCA”) to compel U.S.-based companies to produce communications, such as emails, that are stored in a physical location outside of the United States—at least for now. Instead, the government will likely need to rely on Mutual Legal Assistance Treaties, which provide a framework for states to, among other things, provide assistance to one another to obtain and execute search warrants in their respective jurisdictions.

Nevertheless, it is likely that the U.S. government will seek an alternative, which could include appealing the case to the Second Circuit en banc or pursuing legislation in Congress to amend and update the SCA in light of new digital realities.

Background on the SCA and the Microsoft Dispute

The SCA, which limits service providers’ disclosure of the user data they store, provides that a service provider may disclose to the government certain information, such as the stored contents of a customer’s emails, only if the government first obtains a warrant requiring the disclosure. Microsoft v. United States arose out of Microsoft’s dispute over the scope of one such warrant, which sought information about an email account that Microsoft determined was hosted in Dublin.

Microsoft moved to quash the warrant with respect to the actual emails in the account on the grounds that the SCA does not authorize a search and seizure outside of the territory of the United States, which is where the emails were stored.

Continue Reading