The 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 an important Ninth Circuit decision refusing to enforce an arbitration clause in a website “terms of use” agreement; we examine “Operation Full Disclosure,” the Federal Trade Commission’s initiative to review fine print disclosures and other disclosures in connection with advertisements; we highlight a recent case allowing unprecedented service of process via Facebook; we take a look at California’s recent data security breach law amendment, which may impose the country’s first requirement to provide free identify theft protection services to consumers in connection with certain data security breaches; we explore a new court decision addressing ownership issues in connection with Facebook “likes”; and we review the UK Financial Conduct Authority’s draft guidelines on social media.

All this—plus an infographic regarding mobile device and app use.

Read our newsletter.

  • Bad chords. A European musician’s attempt to stop a negative concert review from continuing to appear in Internet search results is raising questions about whether the EU’s “right to be forgotten” ruling could prevent the Internet from being a source of objective truth.  Established in May by the European Court of Justice, the right to be forgotten ruling requires search engines like Google to remove “inadequate, irrelevant or… excessive” links that appear as a result of searches of an EC member’s name. Pursuant to the ruling, European pianist Dejan Lazic asked the Washington Post to remove a tepid review of one of his Kennedy Center concerts from Google search results. Lazic’s request was denied because it was posed to the wrong party—the right to be forgotten ruling applies to Internet search engines, not publishers—but it nevertheless serves as an example of a request that could be granted under the right to be forgotten rule, and that, argues Washington Post Internet culture columnist Caitlin Dewey, is “terrifying.” Dewey writes that such a result “torpedoes the very foundation of arts criticism… essentially invalidates the primary function of journalism,” and “undermines the greatest power of the Web as a record and a clearinghouse for our vast intellectual output.”
  • A tall tale. The FBI has admitted to fabricating an Associated Press story and sending its link to the MySpace page of a high-school-bombing-threat suspect in 2007 to lure him into downloading malware that revealed his location and Internet Protocol address. Agents arrested the suspect, a 15-year-old Seattle-area boy, within days of learning his whereabouts as the result of the malware, which downloaded automatically when the suspect clicked the link to a fabricated story bearing the headline “Technology savvy student holds Timberline High School hostage.” Civil libertarians are concerned about the FBI’s impersonation of news organizations to send malware to suspects, and an AP spokesman said the organization finds it “unacceptable that the FBI misappropriated the name of The Associated Press and published a false story attributed to AP.”
  • Suspicious expulsions. An Alabama school district recently expelled more than a dozen students after a review of their social media accounts revealed signs of gang involvement or gun possession. The investigation into the students’ social media accounts was conducted by a former FBI agent whom the school district had hired for $157,000 as a security consultant. Since 12 of the 14 expelled students were African-American, a county commissioner accused the investigation of  “effectively targeting or profiling black children in terms of behavior and behavioral issues.”
  • Time change. Until now, Twitter has made a clear distinction between people you follow and people you don’t follow: You only saw tweets from those whom you followed. Now, the service, in what it calls a “timeline experiment,” will place tweets on your timeline from select users that you are not following. Twitter is using an algorithm that determines which such tweets you will see based on the users that you do follow, the popularity of the users you do not follow, and other factors. You won’t be able to opt out of this feature and some frequent Twitter users have complained that it removes one of the factors that distinguishes Twitter from other social media platforms.
  • False flag. We wrote recently about the fake Facebook account that the Drug Enforcement Administration created to gather information for a narcotics investigation. On October 17, Facebook’s chief security officer wrote a letter to DEA Administrator Michele Leonhart calling the agency’s actions a “knowing and serious breach” of Facebook’s policies. Facebook asked the DEA to confirm that it had stopped engaging in this tactic. Facebook’s letter specifically questioned the DEA’s contention that the woman who was the subject of the fake account implicitly consented to use of her personal information for such purposes when she consented to a search of her phone.
  • Square deal. Foursquare has been known mostly as a check-in app – a place where you post your location but not much more. The company’s new ad campaign hopes to change that image and to position Foursquare as a food-oriented rating and recommendation network similar to Yelp and Urbanspoon. “Introducing the all-new Foursquare, which learns what you like and leads you to places you’ll love,” is the new slogan on the Foursquare website. The ad campaign will roll out in mass transit in New York and Chicago and in bike-share locations in the Windy City.
  • 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.

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.

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

The 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 examine the use of the Computer Fraud and Abuse Act to combat web scraping; we explore the launch of Google Glass in the UK and the issues it raises; we analyze the FDA’s latest attempt to provide direction for drug and device manufacturers concerning how and when they may use social media; we report on a recent case concerning whether service providers can avail themselves of certain DMCA safe harbors; we highlight the increasingly important role of social media services in proxy contests; we take a look at how the Supreme Court’s Aereo decision might impact other areas of technology; and we discuss the ongoing controversy regarding website accessibility under the ADA and California’s Unruh Act.

All this—plus a collection of thought-provoking statistics about social media and the World Cup…

Read our newsletter.

 

  • Better shop around. In connection with a new staff report, the Federal Trade Commission (FTC) examined 121 popular apps used to comparison shop, find online deals and pay with mobile devices; the FTC concluded that many of these apps failed, prior to download, to disclose important information to users, such as how the apps deal with payment-related disputes and how consumer data is collected, used and shared. The FTC urged developers of mobile shopping apps to be more transparent in how they deal with privacy, security and consumer protection issues. If your company is involved with apps designed to facilitate online shopping, you’ll definitely want to check out the report.
  • Social notworking.  Does social media undermine office productivity? Surprisingly, a study suggests that social media is responsible for a mere 5% of wasted time at work, well behind “water cooler talk” (14% of office time wasted), IT problems (12%) and – my favorite – pointless meetings (11%).
  • Chat or Tweet? For years, the direct message (DM) function within Twitter has been dormant – hardly used at all, much less for commercial purposes. Now, Twitter is trying to upgrade DM and position itself as a real-time chat option that will appeal to advertisers who want to communicate directly with consumers.
  • ’Sup? We’ve commented previously about the new social networking app Yo, which transmits only that brief, eponymous syllable to a user’s friends. Yo’s founders may have been onto something good; the app has been downloaded more than two million times, and may be receiving substantial funding. And the Wall Street Journal suggests that coming improvements to Yo may make it more than a mere novelty app. Could Yo be the new two-character Twitter?
  • #YoureUnderArrest. The use of social media in nabbing criminal suspects is truly on the rise. A mother in Charlotte, NC has been arrested for helping her teen son take part in a viral “fire challenge” stunt, after a video of the incident popped on social networking sites. Meanwhile, police are using social media’s rapid reach to track down suspects. In Bedford, MA, police nabbed an alleged bank robber after circulating high-quality surveillance photos of him on social media, and in Stockton, CA, surveillance videos posted online helped police speedily arrest a homicide suspect.
  • Are you for real? Some “members” of social media sites appear to be fake identities, replete with stock-photo profile pics and strange off-topic posts.  Reportedly, some of these fake profiles may have been created by law firms searching for new clients. Although false online personas are not illegal, social networking sites and government agencies alike are cracking down on them with greater vigor.
  • On the right track? Google reportedly will be testing a new method of targeting mobile users, one which connects the company’s mobile web tracking mechanisms with its mobile app tracking mechanisms, thereby allowing Google and its advertisers to track mobile users as they switch between web surfing and in-app activities. Until recently, advertisers usually have had to treat a mobile user accessing the web as a separate person from the same user accessing a mobile app. Facebook, however, is able to accommodate such cross-usage tracking, putting pressure on Google to develop its own solution to this fundamental challenge.
  • Strange bedfellows. Although social media is often viewed as a threat to television, a recent study indicates that, in fact, social media has changed the way many people learn about and view television shows. Having a “second screen” at hand increases viewers’ involvement with their favorite shows.
  • For your “what were they thinking” file. A juror in a criminal case in Memphis allegedly sent a Facebook friend request to a defendant charged with aggravated assault. Court personnel discovered the communication after the verdict, which was a unanimous guilty verdict, and the “Facebooking juror” was handcuffed and led out of the courtroom.

Don’t know your ‘like’ from your ‘hashtag’? Got a LinkedIn account, but not sure how to get the most out of it? Use Twitter in your personal life, but not sure how it works in a business context?

It is well established that effective networking is crucial to a woman’s career. It is also clear that women dominate the majority of social media platforms. Indeed, Sheryl Sandberg says that Facebook statistics show that “The social world is led by women”. But many of us are still not bringing the two together and exploring the value of business networking via social media.

At its heart, business is about relationships, and relationships are built on conversations. Conversations first became virtual via letters, then telephones and faxes, then emails and now social media. Can you imagine telling an important contact that you don’t have email? Can you imagine their reaction? Many will now look at you in the same way if you don’t have a LinkedIn profile!

Please join us for a session where we will provide tips to help you (i) identify which social media platforms are most appropriate for your role, (ii) build and optimize your profiles and (ii) effectively network via social media.

Speakers:
We are delighted to be joined by Linda Cheung, a recognised thought leader on social media for business and the co-founder of CubeSocial, a leading social media marketing and CRM company.

Sue McLean, chair of MoFo Women London and the Head of MoFo’s Social Media Practice in Europe will host the event and provide some top tips for avoiding the legal pitfalls associated with social media.

Date & Time:
Wednesday,September 10, 2014
6:30 p.m. BST

For more information and registration information, click here.