Category: Social Media

Copyright, Social Media

Ping® By AdlerLaw – Public Art & Social Media

Or, Can I post a photo of graffiti art to Instagram?

Imagine this scenario: while traversing the city on your daily walk to the office you see some interesting graffiti on the inside of a stairwell in the commercial building housing your favorite independent coffee shop. It’s clearly layers upon layers of works by who-knows-how-many artists. Next to the stairwell is a sign, with icon of a camera, and hashtag. Feeling inspired and intrepid you snap a photo, instantly uploading it to your story with a witty one-liner about undiscovered urban art.

As the caffeine works its magic you begin to recall hearing about a case where some graffiti artists won a multi-million dollar damage award when someone destroyed their graffiti. That case, known as “the 5Pointz case,” involved a building in New York displaying forty four works of graffiti by twenty one artists, for over two decades. The artists prevented the building’s destruction, but not the ownwer whitewashed the building (thus destroying the graffiti). Cohen v. G&M Realty L.P. 13-CV-05612(FB)(RLM) (E.D.N.Y. Jun. 13, 2018)

Come to think of it you, you may also recall a California case holding VARA did not apply to graffiti comprised of large scale murals on the exterior of San Francisco’s oldest continuously operating queer bar, The Stud. Shortly after the bar closed, the building owners began whitewashing and erasing the Artists’ Murals.

This is almost exactly the same fact pattern as the 5Pointz case. However, in 5Pointz the building owner consented to the artwork installation. Even though “consent of the owner” is not mentioned in the text of the VARA, reads it as a necessary element for a VARA claim based upon placement on a building to proceed. “VARA implies a requirement that an artist obtain the consent of a building owner.” Canilao v. City Commercial Invs., 20-cv-08030-EMC (N.D. Cal. Oct 18, 2022).

So if graffiti can be protected, does one need permission from the artist to photograph the work and then “publish” it to a social media platform? What if the social media account is used to promote the account owner’s own goods or services, or a third party’s brand? As many readers know, U.S. Copyright Law grants the author the exclusive rights to exploit the work, subject to certain fair use defenses.

Whether taking and publishing photos of graffiti violates the Visual Artists Rights Act (VARA) can depend on various factors, including the specific circumstances and location of the graffiti. VARA grants certain rights to visual artists, including the right to prevent the destruction, distortion, or mutilation of their work. However, graffiti may not always be protected under VARA, especially if it was created illegally or without the property owner’s permission. In such cases, the property owner’s rights may take precedence. Laws can also vary by jurisdiction.

So What Rights Are Granted To Artists By The Visual Artists Rights Act?

VARA is part of U.S. copyright law, specifically codified in Title 17 of the United States Code, Sections 106A and 113. Section 106A of the U.S. Copyright Act is the primary section that grants rights to visual artists. This includes various provisions that protect the moral rights of authors of certain works of visual art, including the rights to:

  1. Attribution: The right to have their name associated with the work.
  2. Integrity: The right to prevent intentional distortion, mutilation, or other modification of the work that would be prejudicial to the artist’s reputation.

Section 113 of the U.S. Copyright Act contains provisions related to VARA, including remedies and limitations.

It’s important to note that VARA provides protection for a specific category of visual art, such as paintings, sculptures, drawings, and certain types of photographs, but not all visual art is covered. Additionally, VARA has limitations and exceptions, and the application of VARA can vary depending on the specific circumstances and the interpretation of the law by the courts. Therefore, consulting with a legal professional for specific legal advice is recommended when dealing with VARA-related issues

VARA gives the artist the right (a) to claim or to disclaim authorship of the work, (b) to prevent intentional distortion, modification or mutilation of the work if it would be prejudicial to his or her honor or reputation, or (c) to prevent destruction of the work if it is of “recognized stature.”

These rights are not transferable by the artist, who has these rights for life (or longer for works created before December 1, 1990), even after he or she has transferred ownership of the physical work or of the copyright in the work. But the artist can waive these rights in writing.

There are some exceptions to the application of VARA, including as to works made for hire, works subject to the natural aging of materials, and the fair use of works.

Most importantly, special rules apply to works that are part of a building. VARA does not apply if the artist consented to the installation before December 1, 1990, or after that date, executed a written agreement specifying that the work might be damaged by removal. Otherwise, if the building owner wants to remove a work which can be safely removed, the building owner may do so either (1) if the building owner made a diligent, good faith effort to notify the artist, or (2) if notified, the artist has failed to remove or pay for removal of the work within 90 days.

If you have questions about using public art to promote your business or on your company’s social media account, each use case must be evaluated on its own merits. Consulting with an experienced attorney is highly recommended. If you have questions about the requirements, the process the costs or any other question about these issues please contact us to discuss the scope of your project and how we’ve helped others like you.

Advertising, Affiliate Marketing, Business, FTC, Marketing, Social Media

Ping® June 2022 – FTC Updates Endorsement Guides 2022 Part I

The Federal Trade Commission (“FTC”) approved a request for public comment related to updating its Guides Concerning the Use of Endorsements and Testimonials in Advertising. These are better known as the “Endorsement Guides” or just the “Guides.” The current version of the Guides can be found at 16 CFR part 255. These updates were released in May 2022.

The proposed updates are fairly sweeping and touch many aspects of the Guides. I recently discussed these updates at AM Days as part of Affiliate Summit East in New York. Here are the highlights from responses to the questions I get most frequently.

Read the article HERE.

Advertising, Affiliate Marketing, Branding, Business, Cloud, Compliance, Contracts, Copyright, cyber risk, cybersecurity, data privacy, Ecommerce, FTC, Influencer Marketing, Internet, Law, Marketing, Media, Monetizing Content, Social Media, Trademarks

What Is Cyberlaw?

On November 13, I had the honor of providing a lecture on Cyberlaw to students at the Boston College Law School. Virtually, of course. I had been asked to talk about trends in Cyberlaw with a specific focus on issues related to intellectual property.

So what is Cyberlaw? Simply put, it is the “Rules of the Road” for the “information superhighway.” Cyber law is the law that governs rights, obligations and remedies of people and transactions conducted over global computer networks.

In a year that has seen hyperbolic growth in technology, commerce, and communications, this topic couldn’t be more timely. In order to frame the discussion, the scope featured a discussion of the Three Cs of Cyberlaw: Connections, Content and Commerce.

The first part of the discussion centered around Content, or issues related to Copyright, such as Free Speech/First Amendment CDA Sec. 230, Creative Works, Media and Entertainment, UGC and the DMCA.

The Second part of the discussion centered around Commerce or issues related to Trademarks, marketing and branding, such as: Marketing/Advertising, Domain Names – Cyberpiracy prevention, Keyword Advertising and Social Advertising.

The third and final part of the discussion focused on Connections and Communications and issues related to Personal Data, Stalking, Harassment, Surveillance and Sovereignty, issues around Social Media Freedom of Speech v. Freedom of Reach, and the latest developments around Political speech online.

The lecture closed with a Q&A focused primarily on Navigating Law School and Professional Practice.

Advertising, Affiliate Marketing, Branding, cloud computing, Ecommerce, Marketing, SaaS, Social Media, Strategy

COVID-19 is changing consumer behavior in important and probably permanent ways.

COVID-19 is changing consumer behavior in important and probably permanent ways. This is why marketers should take notice.

Sparked by the coronavirus pandemic, consumer and business e-commerce transactions accelerated the ongoing shift toward online commerce. This enables even more marketing opportunities that create real time connections with customers. From pink ribbons to Product Red, social feeds are full of calls to support those in need. In this way, online cause marketing can drive “consumption philanthropy” replacing mindless buying with virtuous action. Tying cause-worthy buying with the latest ecommerce boom creates new opportunities for marketers.

However, before turning your blog, social media accounts, or website into a funnel to raise money for First Responders, it is important to understand that all states have laws that govern charitable solicitations. Running promotions and undertaking solicitations for charities means that unless the business itself is set up as a tax exempt charitable entity, these activities are considered “Commercial co-ventures.” Generally this is a person (or business) who, for profit, is primarily engaged in commerce other than in connection with soliciting for charities and who conducts a charitable sales promotion.

In Illinois, Sec.3. (b) of the Solicitation for Charity Act provides the following persons shall not be required to register with the Attorney General: 3. “Persons requesting any contributions for the … benefit of any individual, specified by name at the time of the solicitation, if the contributions collected are turned over to the named beneficiary, first deducting reasonable expenses for costs of banquets, or social gatherings, if any, provided all fund raising functions are carried on by persons who are unpaid, directly or indirectly, for such services.” Emphasis mine.

Even if you are not raising money for a good cause, consider using disclaimer s to let your audience know product and company names are trademarks of the respective owners and does not imply any affiliation with or endorsement by them.

Advertising, Affiliate Marketing, Branding, Content Development, Copyright, Creative Content, Facebook, FTC, Healthcare, Internet, Marketing, Media, mHealth, Regulatory Compliance, Social Media, Strategy, Technology

TRENDS IN DIGITAL MARKETING

Digital Healthcare Continues to Evolve

Widespread distribution of digital communications technology (phone, tablets, ultra-portable laptops, gaming devices) has changed the nature of marketing. However, medical practices and other healthcare providers are reluctant to use digital marketing techniques. While most industries move away from the distribution of massive, shotgun-style email and snail-mail campaigns and toward targeted, social media and demographic-driven efforts healthcare marketing is falling behind.

Digital marketing execs face many challenges getting the message and media mix right. Early adopters provide a look into the changing nature of marketing. From a pragmatic perspective, there are barriers to entry for digital healthcare marketing efforts (privacy, regulatory), the growing use of content marketing (native, branded), social marketing, and electronic marketing strategies (email marketing, online scheduling, etc.) in the healthcare field and customer-oriented services that can be a strategic use of the Internet for marketing to providers, patients and third-party service providers.

The evolution of healthcare marketing toward greater use of “native,” sharable and relevant content provides both obstacles and opportunities in acquisition and use of third-party media content.

Use of content marketing is increasing.

On average, 35% of all marketers use print magazines, but 47% of healthcare marketers use them. In print, 28% of marketers use print newsletters compared to 43% of healthcare marketers, and 26% of marketers use print for annual reporting compared to 36% in healthcare. When it comes to using blogs, 74% of all marketers use blogs compared to only 58% in the healthcare industry. The situation is similar for social networks, with an interesting exception – 71% of healthcare marketers make use of YouTube, more than the average of 63%. This is likely because healthcare professionals use YouTube to televise procedures and interview doctors.

By now marketers should be accustomed to using their own creative content. However, focusing on owned assets like a website and email won’t move the needle enough to impact the bottom line. As a result, healthcare marketers are integrating new content (in the form or “advertorials” or “native” content). This in turn is developed alongside a long-term SEO strategy.

Native advertising distributes “sponsored” content on relevant pages, delivering relevant content to the right audience in a way that is non-intrusive and integrates with the user experience.

Native Content often involves use of product/service reviews and endorsements. It is important to include proper disclosures when using native content. The FTC will initiate enforcement actions against marketers that deceive consumers.

In the Matter of Son Le and Bao Le, the FTC charged that the two brothers deceived consumers by directing them to review websites that claimed to be independent but were not, and by failing to disclose that one of the brothers posted online product endorsements without disclosing his financial interest in the sale of the products.

Branding, Business, Contracts, Ecommerce, Pinterest, Social Media

Pinterest “Buyable Pins” And Ecommerce Liability

As social media continues its evolution as a transactional medium, Pinterest announced the release of “Buyable Pins” – streamlining the online purchasing process that enables Pinterest users to buy pinned items from several stores without having to leave the Pinterest site or app.  For consumers, Buyable Pins make it easier to move from a Pin to purchase. For businesses, this opens a door to a large new audience who loves to shop.

Here’s everything you need to know about selling on Pinterest and potential areas of Ecommerce liability.

Online Contracts Reduce Merchant Risk. Sometimes.

A substantial number of court opinions in recent years have looked at the validity of various provisions contained in online contracts. The starting point for most analyses is the point of contract formation, because terms of online contracts are enforceable only if the contract was validly formed. Courts have scrutinized ecommerce contracts, primarily in four areas: (a) Terms of Sale; (b) Returns/Exchanges; (c) Governing Law & Venue; and (d) Arbitration. Quite often, courts have refused to enforce such terms, due to deficiencies in the formation of online contracts.

As a general proposition, formation of contracts (offer and acceptance) and enforceability of contractual provisions (choice of governing law) are matters determined by reference to state law. However, in the United States, federal courts are often required to determine matters of state law and most states have relatively uniform requirements with respect to the three principal concepts in the determination of contract enforceability: offer, acceptance and consideration.

With respect to contract law in relation to online commerce (ecommerce), contracts generally take one of two forms: (1) “click-through” or “click-wrap” agreements, and (2) “browse-wrap” agreements, often referred to as Terms of Use or Terms of Service. It is worth noting that a recent Eastern District of New York court decision classified online contracts in four categories (a) browsewrap[sic]; (b) clickwrap[sic]; (c) scrollwrap[sic]; and (d) sign-in-wrap. Berkson v. Gogo, LLC, Case No. 14-CV-1199 (USDC E.D.N.Y. April 9, 2015). Functionally, the last three tend to look substantially similar (e.g. there is some action required to consent to the agreement, see discussion of “consent,” below) and will be treated as such for purposes of this article.

This is particularly important for merchants using “Buyable Pins” on Pinterest. Unless the online terms of the agreement between the merchant and the customer are validly binding and enforceable, many of the protections offered to the merchant in the online contract will not be available.

As noted above, courts have frequently refused to enforce provisions around a merchant’s ability to modify some terms post-sale (Terms of Sale), the availability of and methods for returns and exchanges, how and where lawsuits may be filed (Governing Law & Venue), and requirements to submit disputes to arbitration. This presents particular issues for Buyable Pins. Merchants need to think carefully about how a user is presented with the opportunity to accept or reject an online contract, and how the user “manifests consent to the agreement.”

The so-called “click-wrap” agreement is usually the agreement formed when a user purchases goods or services through an ecommerce shopping cart application. A user is presented with the online terms and conditions and must “click-through” as part of the transaction.

Consenting to Online Terms.

“Click-wrap” agreements derive their name from the shrink-wrap agreements that were first incorporated into commercially-distributed software. Users were deemed to have accepted the terms of the agreement by opening the package and installing the software. In ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1450 (7th Cir.1996), the court held that a user was bound by the terms and conditions of a software license agreement (contract) included in a users’ manual within the packaging, and which was displayed on a computer screen upon installation and use of the software. Such contracts are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable).

Consenting to Arbitration, Choice of Law and Venue.

Another concern is the scope of the terms and conditions applicable to the contracts, and whether additional terms may be incorporated by reference or presented after the transaction has been processed. Courts have been severely reluctant to enforce additional contract terms that would affect a user’s rights, such as the user’s ability to enforce the contract, including arbitration provisions, choice of law, and choice of venue provisions in online contracts, especially where such terms were communicated after-the-fact. This issue was addressed by a federal court in Schnabel v. Trilegiant. 697 F. 3d 110 (2nd Cir.2012)

Consenting to Changes in Price.

A very recent case involving Safeway grocery stores challenged a merchant’s practice of charging slightly different (and higher) prices for items ordered online than those purchased in-store. The in-store prices varied day-to-day. Typically, after a customer placed an online order, the items were actually selected from a physical store and delivered to the customer. At issue was the enforceability of Safeway’s “amend-at-will-without-notice” clause contained in the online terms.

Finding the clause unenforceable, the court reasoned “beyond the impracticality of expecting consumers to spend time inspecting a contract they have no reason to believe has been changed, the imposition of such an onerous requirement on consumers would be particularly lopsided, as Safeway is aware that it has — or has not — made changes to the Terms and is the party to the contract that wishes for the new terms to govern.” Rodman v. Safeway Inc., 2014 WL 6984703 (N.D. Cal. Dec. 10, 2014)

Best Practices For Merchants.

“Buyable Pins” highlight the legal risks inherent in ecommerce contracts. Seamlessly moving form Pin to purchase will no doubt increase sales and customers and reduce abandoned virtual shopping carts. However, merchants need to be mindful that the risk of losing a lawsuit because of an unenforceable contract is greater than the risk of losing a sale because a customer had to objectively consent to that contract.

Here are six “best practices” to ensure that the online contract formation process is bullet-proof: 1) use a multi-step account activation (or transaction confirmation) process where the user is shown the contract (can be in a separate “pop-out” window); 2) use a notice appearing in bold print stating, “Carefully read the following terms and conditions. If you agree with these terms, indicate your assent below;” 3) present the terms and conditions in a new window, with a scroll bar that allows the user to scroll down and read the entire contract (the Berkson “scrollwrap” agreement; 4) link to a printer-friendly version to read the contract printed on paper or view it on a full-screen; 5) display a box and the words, “Yes, I agree to the above terms and conditions” viewable without scrolling; and 6) have a functional requirement that the user click the box in order to proceed to the next step.

While I cannot guarantee that using these techniques will ensure that your online contracts will be fully-enforceable 100% of the time, it will make it exceptionally hard for a potential plaintiff to argue that there was no enforceable contract.

When it comes to addressing emerging ecommerce legal risks, it is often difficult to determine whether you should slow down, change course, signal for help, or simply muddle through. Often, companies need to quickly identify potential issues, assess the risk, and implement controls to steer clear of unneeded exposure. The professionals at the Adler Law Group can help you review, enhance and adopt standardized contracts and implement methodologies for approaching these challenges by setting objectives, determining scope, allocating resources, and developing agreements that will efficiently and effective manage risks, while keeping pace with the business.

Focus | Vision | Perspective | Passion

Executives face a confusing and dynamic set of challenges ensuring their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex legal & regulatory environment. Adler Law Group was created to provide clients with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.

For a FREE, no-obligation 1 hour consultation to learn the best ways to identify, protect and leverage your ideas, please call: (866) 734-2568, click: http://www.adler-law.com, or write: David @ adler-law.com.

Adler Law Group – Providing innovative legal counsel that elevates aspirations to achievements.™

Advertising, Compliance, Content Development, Copyright, Entertainment, Facebook, Social Media, Strategy

Copyright, Fair Use & Media

Digital Media
Digital Media

Media Creation & Consumption is Challenging Traditional Legal Notions.

At a time when #media creation & consumption has transformed, two recent cases, both involving Fox News Network on opposite sides of the “fair use” defense to copyright infringement, highlights the evolving and dynamic legal challenges facing business and content creators. In each case, Fox News loses on Summary Judgment.

Photographs, Fair Use & Social Media

The first case, North Jersey Media Group, Inc. v. Jeanine Pirro and Fox News Network, LLC, involves what many recognize as the “now iconic photograph of the firefighters raising the American flag on the ruins of the World Trade Center on September 11, 2001.” The photograph – which bears a striking resemblance to Joe Rosenthal’s World War II photograph of the Iwo Jima flag-raising – has become a similarly striking symbol of American patriotism.

That similarity was not lost on a production assistant for a Fox News program “Justice with Judge Jeanine” who posted the two images, unaltered, on the show’s Facebook Page, along with the phrase “#neverforget,” allegedly to commemorate the twelfth anniversary of the attack.

The case is noteworthy for its analysis of the “fair use” defense in a social media context. While the Copyright Act grants authors certain exclusive rights, including the rights to reproduce the copyrighted work and to distribute those copies to the public (17 U.S.C. § 106(1), (3)) one often quoted and widely misunderstood limit to those rights is the doctrine of “fair use,” which allows the public to draw upon copyrighted materials without the permission of the copyright holder in certain circumstances. The fair use doctrine is an after-the-fact defense to infringement, not a pre-emptive justification to use another’s work without permission.

Educated in journalism and media studies, the production assistant acknowledged that she understood a copyright to be something that is owned by someone else although she had no training in copyright law either in college or during her tenure at Fox News. She had been working at Fox News for approximately three years, had previously sought legal advice regarding use of photographs on the broadcast, but never in connection with posting images to the program’s Facebook page.

The key take-away for businesses and digital marketers alike is the need for vigilance when using third-party content on social media. Employee education and training on what copyright protects, what it doesn’t, and how it works may help prevent your business form facing a similar situation.

Media Monitoring, Digital Content & Copyright Fair Use

The second case, Fox News Network, LLC v. TVEyes, Inc., involves a company that monitors and records all broadcasts by more than 1,400 television and radio stations twenty-four hours per day, seven days per week. This content is indexed and organized in a searchable database that allows subscribers to search terms, determine when, where, and how those search terms have been used, and obtain transcripts and video clips of the portions of the television show that used the search term.

Fox News Network, LLC sued to enjoin TVEyes from copying and distributing clips of Fox News programs. TVEyes asserted that its system and services are permitted under the doctrine of “fair use.”

The court found that TVEyes service was a fair use. Unlike other services that simply “crawl” the Internet, culling existing content available to anyone willing to perform enough searches to gather it, the indexing and excerpting of news articles, where the printed word conveys the same meaning no matter the forum or medium in which it is viewed, the service provided by TVEyes is transformative. By indexing and excerpting all content appearing in television, every hour of the day and every day of the week, month, and year, TVEyes provides a service that no content provider provides. Subscribers to TVEyes gain access, not only to the news that is presented, but to the presentations themselves, as colored, processed, and criticized by commentators, and as abridged, modified, and enlarged by news broadcasts.

The key take away for technology companies that rely on content is what the court says about features of the Services (as opposed to the technology itself, e.g. the software/platform): the issue of fair use is for the full extent of the service, TVEyes provides features that allow subscribers to save, archive, download, email, and share clips of Fox News’ television programs. The parties have not presented sufficient evidence showing that these features either are integral to the transformative purpose of indexing and providing clips and snippets of transcript to subscribers, or threatening to Fox News’ derivative businesses.”

In other words, evidence that certain features are essential to the use of a service, may be sufficient to show how the features (service) exist above- and-beyond what stale or static content can show.

You Don’t Have to Muddle Through

When it comes to understating evolving technology legal risks, your business can’t simply muddle through. The professionals at the Adler Law Group can help you adopt conduct risk assessments, provide employee training and methodologies for approaching these challenges by setting objectives, determining scope, allocating resources, and developing practices that will efficiently and effective manage risks, while keeping pace with the business.

For a free consultation, call us at (866) 734-2568, send and email to info@ecommerceattorney.com or visit our web site www.adler-law.com

Advertising, Branding, Compliance, Content Development, Contracts, Copyright, Creative Content, Entertainment, Infringement, Internet, Law, Marketing, Media, Monetizing Content, Noncompete, Ownership, Platforms, Small Business, Social Media, Technology, Video

Contracts & Copyright: Issues for Authors, Writers & Creative Professionals

To find out more about how the Adler Law Group can help your business identify risk and issues related to intellectual property ownership, corporation or LLC formation, or just assess risk associated with your business, contact us for a free, no-obligation consultation by emailing David @ adler-law.com, visiting our web site www.adler-law.com, or calling toll free to (866) 734-2568.

Advertising, Affiliate Marketing, Branding, Business, Content Development, Creative Content, Entrepreneurs, Marketing, Media, Social Media, Strategy

Three Things To Improve Your Law Firm’s Social Media Marketing in 2015

When I committed myself to social media marketing a few years ago, like most lawyers, I wasn’t quit sure what I was getting myself into. One thing I knew for sure: I had to just start.

I’m sure my early posts were fairly mundane and added little value, let alone acted as a catalyst for a conversation. As most social media experts will posit, social media is about identifying and engaging with customers, employees and prospects. Over time, I increased my engagement, learned to participate and learned what worked and what didn’t. What follows are a couple of things that I try to keep in mind as part of my legal social media marketing efforts.

1. Have a voice. As lawyers we have instant credibility. Use this to your advantage. Whether you are a personal injury lawyer or in house counsel to a pharmaceutical company, you probably follow certain topics or have expertise in a particular area. You can use your area of expertise to talk about events, trends or interesting developments. Even if all you do is post a link to something that interests you, you are developing your online persona.

2. Cultivate your followers. One of the most powerful aspects of social media marketing is the network effect. As followers like, share or favorite your content, your message gets spread exponentially. Don’t be afraid to engage with those followers to cultivate and strengthen those relationships.

3. Always evaluate. Sometimes I am shocked that a post gets shared or favorited. For whatever reason, the subject matter resonates with my followers and my followers’ followers. When I see that, I try to note the subject area or topic, how it was shared an by whom. Focusing on content that others find useful enhances the value of my voice and my content.

As we look forward to 2015, now is an opportune time to take a look at what work last year, what didn’t and how we can improve our focus going forward.

If you find my posts uself, I encourage you to share, comment, follow or just get in touch.

Best of luck for your legal marketing efforts in 2015!

Compliance, Contracts, Entrepreneurs, Facebook, Internet, Law, Legislation, Media, Social Media, Technology

Oklahoma, Louisiana, join growing list of States with Social Media Laws

Oklahoma and Louisiana join Wisconsin and Tennessee in recent laws restricting access to applicants’ and employees’ personal online content by prospective and current employers. Adoption of Social Media platforms continues to grow as do new legal and business risks arise as well as state legislatures provide new rules, regulations and guidance. As state by state compliance requirements develop, businesses need to review frequently overlooked elements of key social media guidance, such as how to approach specific areas like Monitoring, Content Approval, Training and Information Security.

This latest round of bandwagon-jumping follows efforts by most other states that have addressed the issue. The key take-away is that business need to take a state-by-state approach to social media legal compliance.

Generally, most of these types of laws prohibit employers from requesting or requiring that applicants or employees disclose a username, password, or other means of authentication for their online accounts.

Employers should be on the lookout for laws that address whether an applicant or employee must accept a “friend” request, change privacy settings to permit access by the employer, or otherwise divulge personal online content.

Another area of concern is the definition of “personal,” “social media” and “account. ” these definitions vary and often cover far more than common notions of social media.

Some laws apply to any online account, including e-mail, instant messaging and media-sharing accounts. Some laws address the scope of use such as “exclusively for personal communications” as opposed to “business purposes of the employer” or “business-related communications.” This carve-out further narrows the scope of the Oklahoma and Louisiana laws.

While these laws generally prohibit adverse actions based based on a refusal to provide user name, password or other authentication information, each law should be scrutinized for broader prohibitions, such as those against penalizing or threatening to penalize an employee or applicant for refusing such requests.

Technology continues to evolve and so does the legal and regulatory environment. Businesses need to continually assess and address the risks created by new laws and new uses of tech in the workplace.

Contact us for a free consultation to learn what we can do to help your business navigate the ever-changing regulatory minefield. What you don’t know can hurt you. We are here to help you avoid getting hurt.