We’re delighted to publish our Social Media Safety Guide for Companies, which highlights key considerations to keep in mind in using social media to promote your company’s products and services and to engage with customers.

Social media has been referred to as the greatest development for marketers since the printing press, but the benefits of social media are not risk free; indeed, many companies have run into serious legal problems in their rush to take advantage of social media. Although not a substitute for advice from experienced legal counsel, our Guide is intended to highlight a number of emerging best practices for reducing U.S. legal risks in connection with corporate use of social media.


CaptureThe 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 the impact online trolls are having on social media marketing; we revisit whether hashtags should be afforded trademark protection; we explain how an unusual New Jersey law is disrupting the ecommerce industry and creating traps for the unwary; we explore legal and business implications of the Pokémon Go craze; we examine a recent federal court decision likely to affect application of the Video Privacy Protection Act to mobile apps; we discuss a class action suit against an app developer that highlights the legal risks of transitioning app customers from one business model to another; and we describe how Europe’s Right to Be Forgotten has spread to Asia.

All this—plus infographics illustrating the enormous popularity of Pokémon Go and the unfortunate prevalence of online trolling.

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Earlier this year, I helped moderate a lively panel discussion on social media business and legal trends. The panelists, who represented well-known brands, didn’t agree on anything. One panelist would make an observation, only to be immediately challenged by another panelist. Hoping to generate even more sparks, I asked each panelist to identify the issue that most frustrated him or her about social media marketing. To my surprise, the panelists all agreed that online trolls were among the biggest source of headaches.

This contentious group proceeded to unanimously bemoan the fact that the comments sections on their companies’ social media pages often devolve into depressing cesspools of invective and hate speech, scaring off customers who otherwise would be interested in engaging with brands online.

And it isn’t just our panelists who feel this way. Many online publishers have eliminated the comments sections on their websites as, over time, those sections became rife with off-topic, inflammatory and even downright scary messages.

For example, Above the Law, perhaps the most widely read website within the legal profession, recently canned its comments section, citing a change in the comments’ “number and quality.”

The technology news website Wired even put together a timeline chronicling other media companies’ moves to make the same decision, saying the change was possibly a result of the fact that, “as online audiences have grown, the pain of moderating conversations on the web has grown, too.”

Both brands and publishers are right to be concerned. Unlike consumers who visit an online branded community to voice a legitimate concern or share an invaluable insight, trolls “aren’t interested in a productive outcome.” Their main goal is harassment, and, as a columnist at The Daily Dot has observed, “People are generally less likely to use a service if harassment is part of the experience.” That’s especially true of online branded customer communities, which consumers mainly visit to get information about a brand (50%) and to engage with consumers like themselves (21%).

Of course, it’s easy for a brand to eliminate the comments section on its own website or blog. But, increasingly, brands are not engaging with consumers on their own online properties; they’re doing it on Facebook, Instagram, Twitter and other third-party social media platforms, where they typically do not have an ability to shut down user comments. Some of these platforms, however, are taking steps to rein in trolls or eliminate their opportunities to post disruptive comments altogether.

The blog comment hosting service Disqus, for example, recently unveiled a new platform feature that will allow users to “block profiles of commenters that are distracting from their online discussion experience.” The live video streaming app Periscope also recently took measures to rein in trolls, enabling users to flag what they consider to be inappropriate comments during a broadcast. If a majority of randomly selected viewers vote that the flagged comment is spam or abusive, the commenter’s ability to post is temporarily disabled. And even Facebook, Instagram and Twitter have stepped up their efforts to help users deal with harassment and unwanted messages.

Brands, however, are seeking a greater degree of control over user comments than what is being offered even by Disqus and Periscope. Given that branded content and advertising are crucial components of many social media platforms’ business models, we can expect to see platforms becoming more willing to provide brands with tools to address their troll concerns.

In fact, the user-generated content site Reddit has already taken steps in this direction. Because of its notorious trolling problem, Reddit has had trouble leveraging its large and passionate user base. Last year, in an effort to capitalize on the platform’s ability to identify trending content and create a space where brands wouldn’t be afraid to advertise, Reddit launched Upvote, and passionate user base. A site that culls news stories from Reddit’s popular subgroups and doesn’t allow comments.

Other platforms will presumably follow Reddit’s lead in creating comment-free spaces for brands. Although this may prove to be good news for many brands, one can’t help to feel that this inevitable development undermines—just as trolls have undermined—the single most exciting and revolutionary aspect of social media for companies: the ability to truly engage one-on-one with customers across the entire customer base.

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This post is a version of an op-ed piece that originally appeared in MarketWatch.

For other Socially Aware posts addressing online marketing issues, please see the following:  Influencer Marketing: Tips for a Successful (and Legal) Advertising Campaign; Innovative Social Media Marketing Cannot Overlook Old-Fashioned Compliance; and Will Ad Blockers Kill Online Publishing?  Also, check out our Social Media Marketing infographic.


We’re happy to publish our latest infographic, which highlights key social media marketing trends for both B2B and B2C companies. Among other things, the infographic points out that, although companies continue to increase their social media marketing spend, they don’t do a particularly good job at engaging consumers through social media, and they still struggle to determine the return on their investment. Enjoy! And please feel free to share this infographic with your marketing colleagues.


150728SociallyAware_Page_01The 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 present a “grand unifying theory” of today’s leading technologies and the legal challenges these technologies raise; we discuss whether hashtags can be protected under trademark law; we explore the status of social media accounts in bankruptcy; we examine the growing tensions between content owners and users of livestreaming apps like Meerkat and Periscope; we highlight a recent discovery dispute involving a deactivated Facebook account; we discuss a bill before Congress that would protect consumers’ rights to post negative reviews on websites like Yelp; and we take a look at the Federal Trade Commission’s crackdown on in-store tracking activities.

All this—plus an infographic exploring the popularity of livestreaming sites Meerkat and Periscope.

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150514SociallyAwareThe 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 a recent decision in Virginia protecting the anonymity of Yelp users; we examine the FTC’s much anticipated report, “Internet of Things: Privacy & Security in a Connected World;” we explore the major social media platforms’ approaches to handling deceased users’ accounts; we highlight a recent CJEU case holding that extracting large amounts of data from public websites—commonly known as “web scraping”—may violate website’s terms of use; we highlight the first-ever award of “any damages” for fraudulent DMCA takedowns; we drill down on important precedents that are defining the multi-channel programming distribution industry; and we take a look at cross-device tracking in interest-based advertising.

All this—plus an infographic featuring some intriguing online dating statistics.

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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 key–and often ignored–legal concerns regarding social media assets in M&A transactions; we explore whether anti-Glass hysteria may have doomed Google Glass; we highlight a landmark case finding that parents can be held liable for their child’s online activities (yikes!); we take a look at the FTC’s latest crackdown on social media advertising; and we drill down on cloud services agreements.

All this—plus an infographic roundup of social media’s “greatest” hits in 2014.

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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 look at several topics surrounding the proverbial online thumbs up, including the emerging legal status of Facebook likes and similar social media constructs; Facebook’s recent prohibition of the popular business practice of offering discounts, exclusive content and other incentives in exchange for liking a company’s Facebook page; and Facebook’s crackdown on the practice of buying phony likes. We realize though that likes aren’t everything, so we also explore the legal framework for moving personal data to the cloud; we examine clickwraps vs. browsewraps in relation to the implementation and enforcement of online terms of use; we discuss the new California privacy law revisions impacting website and mobile app operators directing their services to minors; we take a look at the new infringement exceptions in the United Kingdom; and we highlight a recent decision in the UK granting a website-blocking order against certain ISPs in a case involving counterfeit goods.

All this—plus an infographic about—what else?—Facebook likes.

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Following concerns raised by bloggers, the UK government has clarified that small blogs will be exempt from the scope of the new UK press watchdog which is to be introduced as a result of the findings of the Leveson Inquiry.

In 2007, Clive Goodman, then-editor of UK newspaper News of the World, and private investigator Glenn Mulcaire were convicted of the illegal interception of phone messages, and in early 2011, it was revealed that other News of the World reporters had also hacked phones.  Later in 2011, the UK government Department for Culture, Media and Sport (DCMS) commenced a public inquiry into the culture, practices and ethics of the British press, chaired by Lord Justice Leveson.  In November 2012, following a series of public hearings, Lord Justice Leveson’s inquiry published the Leveson Report, which made recommendations for a new independent regulator for the UK press.  As a result of the Leveson Report, the UK government has proposed that a new press watchdog be established by royal charter and backed by legislation; this new self-regulatory system will apply to all “relevant publishers.”

The Crime and Courts Act 2013

The relevant legislation, the Crime and Courts Act 2013 (the “Act”), became law on April 25, 2013.  (In terms of the royal charter itself, a draft royal charter put forward by the UK government and a rival draft put forward by some of the leading UK newspapers are due to be considered by the Privy Council in June 2013.)  Section 41 of the Act sets out the four criteria that a publication must meet to be a “relevant publisher.”  A relevant publisher must:

  • Publish “news-related” material (i.e., news, information or opinion about current affairs or gossip about celebrities, public figures or other persons in the news);
  • Publish in the course of a business;
  • Publish material written by different authors; and
  • Publish material subject to editorial controls.

For purposes of the Act, “publication” means on a website, in hard copy or by any other means.

The draft royal charter proposed by the UK government goes on to make clear that the proposed self-regulatory scheme will cover those who publish in the UK, where a person is deemed to publish in the UK if “the publication takes place in the United Kingdom or is targeted primarily at an audience in the United Kingdom”; the rival royal charter drafted by the press does not suggest any changes to these provisions.  Although there is no guidance in the draft royal charter as to the interpretation of “takes place in the United Kingdom,” it appears that the royal charter could cover foreign operators that publish in the UK, in addition to the UK press itself.  We note that the risk to such publishers that are based in the United States, at least with respect to defamation claims, may be limited by the SPEECH Act,” which was signed into law in the U.S. in August 2010 as a response to so-called “libel tourism.”

(As a general matter, the SPEECH Act prohibits a U.S. federal or state court from recognizing or enforcing a foreign defamation judgment unless the foreign jurisdiction’s defamation law provided at least as much protection of freedom of speech and press as the U.S. Constitution, as well as the constitution and laws of the state in which the court is located.  The SPEECH Act further prohibits U.S. courts from recognizing or enforcing a foreign defamation judgment against the provider of an “interactive computer service,” as defined in Section 230 of the Communications Decency Act (CDA), unless such court determines that the judgment would be consistent with Section 230 if the relevant information had been provided in the U.S.)

A website operator is not considered to have editorial control over material published on its site if the operator did not post the material, even if the operator moderates statements published by others.  This is consistent with the approach taken in Section 5 of the UK’s new Defamation Act 2013, which provides that a website operator’s defence of not having posted defamatory material will not be defeated merely because the operator has moderated a statement posted by others.

“Micro-Businesses” and the Small Blog Exemption

Schedule 15 of the Crime and Courts Act 2013 states that a person who, in carrying out a “micro-business,” publishes news-related material which is either (i) contained in a multi-author blog (a blog that contains contributions from different authors) or (ii) published on an incidental basis that is relevant to the main activities of the business, will not be classified as a relevant publisher for purposes of the Act.  “Micro-businesses” are defined as those with fewer than 10 employees and an annual turnover of less than £2 million.

Note, however, that a publication that is exempt from the Act as a micro-business could still choose to join the regulatory system and receive the legal benefits otherwise only available to relevant publishers—benefits that include cost protection if a claimant chooses to sue in court instead of using the regulator’s arbitration scheme.

DCMS has created the following infographic for use in determining whether or not a publication is a relevant publisher:

Image by DCMS via Creative Commons Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0) license.

Other Exemptions

Schedule 15 also specifies other categories of publications which are exempt from the new system, even when the test for relevant publishers is met.  These exemptions cover special-interest titles, scientific or academic journals, broadcasters and book publishers, as well as any public body, charity or company that publishes news about their activities.