The legal and regulatory environment impacting social media is constantly evolving. Here is a collection of recent articles impacting everything from law enforcement use of social media to new legislation.
A social media tip line for police
Boston.com
“Use of social media has provided an additional outlet for people to interact with law enforcement” says Lauri Stevens – founder of LAwS Communications, a consulting company that helps law enforcement agencies expand into social media.
Social media limits and the law
Monterey County Herald
Leland Yee, a San Francisco Democrat, introduced a bill that would prohibit employers, public or private, from requiring or requesting in writing a prospective employee to disclose user names or passwords for personal social media accounts.
Ariz. bill says unlawful to ‘annoy’ others online
BusinessWeek
“Speaking to annoy or offend is not a crime,” Media Coalition Executive Director David Horowitz said. Horowitz said if the proposal becomes law, speech done in satire, political debate or even sports trash talking could get people in unnecessary legal trouble.
Social Media in China, Innovation
Washington Post
Apr. 2, 2012 – April 2 (Bloomberg) — Vivek Wadhwa, fellow at Stanford Law School and head of academics at Singularity University, talks about social media in China and innovation.
UAE legal experts want libel to apply to social networking sites
GMA News
Claiming that Facebook, Twitter and other social networking sites can be used to spread rumors and false information, the legal community in the United Arab Emirates (UAE) is seeking that libel laws be applied to offenders on the Internet.
Is Your Facebook Password Like Your Mail, House Key, or Drug Test?
The Atlantic
A day after it was proposed, the amendment was voted down — almost entirely along party lines — thus closing one door to social media privacy legislation, at least on the national level. (There are similar social media privacy laws — full bills, …
Sponsor: Arizona bill isn’t aimed at Internet trolls
CNN
The fear is that the bill would prohibit hateful comments on news and social-media sites, amounting to a ban on so-called Internet trolling. The problem: The bill won’t do any of that, its sponsor told CNN on Wednesday. “I think they’re absolutely …
How Family Law Attorneys Use Social Media Evidence [Infographic]
PR Web (press release)
Family Law Attorneys Dishon & Block formally released today an infographic that illustrates how attorneys use social media to collect “smoking gun” evidence for divorce and child custody cases. With the advancement in technology and modernizing of laws …
See all stories on this topic »
PR Web (press release)
David M Adler, noted entertainment and creatival arts lawyer will be participating in the Visiting Artist Series with Reginald Lawrence (Shepsu Aakhu).
Tuesday, April 10, 2012 11:50 – 1:30 pm
DePaul Center – Room 80051 E. Jackson Blvd.Chicago, IL 60604
Lunch will be served.
Visiting Artist Reginald Lawrence (Shepsu Aakhu) will discuss the legal issues that he has faced in his multi-dimensional career as a playwright, producer, director, and arts educator. In particular, he will focus on the life cycle of a theatrical production from dealing with authors to hiring actors, directors, and crew to mounting the finished production. He will share his perspective on legal questions related to collaboration, intellectual property, and production credit.
Leading Chicago arts lawyer David Adler will join in the conversation, and Professor Margit Livingston will moderate.
For more information on the Visiting Artist Series, please click here.
Registration: General registration is $25 for the 1.5 hour CLE discussion. To register, please visit http://www.regonline.com/reginaldlawrence.
DePaul students, faculty, and staff can register to attend for free by emailing Cecelia Story at cstory@depaul.edu.
DePaul University College of Law is an accredited CLE provider. This event has been approved for 1.5 CLE credits.
For the past year and a half, I have been traveling to various conferences around the country to speak on Legal and Regulatory compliance in social media. In the beginning, case law and regulatory guidance was scarce and little information was available to provide businesses engaged in social media with a roadmap for Social Media Legal and Regulatory compliance. However, a lot has changed over the last year and a clear trend is emerging. Industry regulators are aware of the use – and abuse – of social media by their members. This article examines recent guidance provided by the Federal Trade Commission (FTC), the Food & Drug Administration (FDA), the National Labor Relations Board (NLRB), the Financial Industry Regulatory Authority (FINRA) and the Securities Exchange Commission (SEC).
Social Media in Marketing, Advertising & Commerce.
The FTC has a prime directive to protect consumers. In the social media sphere, the FTC has pursued this mandate by enforcing companies’ Terms of Use and privacy policies. In addition, the FTC has recently issued updated guidance for companies and individuals that review, promote, advertise or otherwise write about various products and services. In 2009, the FTC tackled its first social media case, an investigation involving Twitter. The focus of the FTC action was Twitter’s privacy policy that asserted A concern about safeguarding confidentiality of personally identifiable information and privacy settings designed to designate tweets as private.
The settlement, first announced in June 2010, resolved charges that Twitter deceived consumers and put their privacy at risk by failing to safeguard their personal information. Lapses in the Twitter’s data security allowed hackers to obtain unauthorized administrative control of Twitter, including both access to non-public user information and tweets that consumers had designated as private, and the ability to send out phony tweets from any account. Under the terms of the settlement, Twitter has hit ended and ongoing obligations concerning consumers and the extent to which it protects the security, privacy, and confidentiality of nonpublic consumer information, including the measures it takes to prevent unauthorized access to nonpublic information and honor the privacy choices made by consumers.
In a similar action, the FTC settled and investigation into Facebook,the leading social media platform/service. The social networking service agreed to settle Federal Trade Commission charges that it deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public. The settlement requires Facebook to take several steps to make sure it lives up to its promises in the future, including giving consumers clear and prominent notice and obtaining consumers’ express consent before their information is shared beyond the privacy settings they have established.
As recently as January 10, 2012, the FTC reached a settlement with UPromise, Inc., stemming from charges that the company – a membership reward service – allegedly used a web-browser toolbar to collect consumers’ personal information, without adequately disclosing the extent of personal information collected. The FTC found that the toolbar was collecting the names of all websites visited by its users as well as information entered into web pages by those users, including user names, passwords, credit card numbers, social security numbers and other financial and/or sensitive data. Furthermore, this data was transmitted in unencrypted, clear text that could be intercepted or viewed by third parties in a WiFi environment. The result? UPromise had to destroy all data it collected under the “Personalized Offers” feature of its “TurboSaver” toolbar in addition to other obligations related to data collection practices and consent to collection of personal information.
Other Industry Guidance.
In October 2009, the Federal Trade Commission released it’s updated “FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising.” The updated Guides contain two notable areas of concern for marketers. First, the Guides removed the safe harbor for advertisements featuring a consumer’s experience with a product or service, the so-called “results not typical” disclosure. Second, the FTC Guides underscored the longstanding principle of disclosing “material connections” between advertisers and the consumers, experts, organizations, and celebrities providing reviews and endorsements of products and services.
For concise guidance on when, how and what to disclose, see my article here.
Social Media in the Healthcare & Pharmaceutical Industries.
Like other consumer-oriented industries, Pharmaceutical and Biotech firms are rapidly expanding their presence online. This growth over the past several years has not gone unnoticed as evidenced by FDA Warning Letters targeting marketing campaigns “broadcast” via websites and social media platforms. The FDA also provides more general guidance for the industry. Policy and guidance development for promotion of FDA-regulated medical products using the Internet and social media tools are available in the FDA’s Consumer-Directed Broadcast Advertisements Questions and Answers. While this document provides clear direction for traditional media broadcasting , it only skims the surface regarding web content.
Social Media in the Workplace.
Probably no other federal agency has been as active as the NLRB in recent months. The NLRB has a mandate to protect employees rights to organize and discuss working conditions without fear of reprisals from employers. On August 8, 2011, the Associate General Counsel for the NLRB released a memo entitled “Report of the Acting General Counsel Concerning Social Media Cases.The report began by analyzing a case of first impression: whether an Employer unlawfully discharged five employees who had posted comments on Facebook relating to allegations of poor job performance previously expressed by one of their coworkers.
On January 25, 2012, the NLRB released a second report describing social media cases handled by the NLRB. The “Operations Management Memo” available here, covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.
The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related. The report underscores two main points made in an earlier compilation of cases: 1) policies should not sweep so broadly that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees; and 2) an employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
Social Media and the Financial Services Industry.
From the Madoff scandal, to the Occupy Wall Street Movement, to Mitt Romney’s tax returns, the financial services sector is accustomed to the scrutiny and ire of the public and government regulators. Therefore it is no surprise that on January 4, 2012, the SEC’s Office of Compliance Inspections and Examinations, in coordination with other SEC staff, including in the Division of Enforcement’s Asset Management Unit and the Division of Investment Management, issued its “Investment Adviser Use of Social Media” paper. The paper begins by observing that although “many firms have policies and procedures within their compliance programs” governing use of social media” there is wide “variation in the form and substance of the policies and procedures.” The staff noted that many firms have multiple overlapping procedures that apply to advertisements, client communications or electronic communications generally, which may or may not specifically include social media use. Such lack of specificity may cause confusion as to what procedures or standards apply to social media use.
The SEC paper suggests that the following factors are relevant to determining the effectiveness of a Social Media compliance program:
Usage Guidelines
Content Standards
Monitoring
Frequency of Monitoring
Approval of Content
Firm Resources
Criteria for Approving Participation
Training
Certification
Functionality of web sites and updates thereto
Personal/Professional sites
Information security
Enterprise-wide web site content cross collateralization
Similarly, the Financial Industry Regulatory Authority (FINRA) has issued guidance for secutires brokerage firms. According to its web site, FINRA “is the largest independent regulator for all securities firms doing business in the United States.” FINRA protects American investors by ensuring fairness and honesty in the securities industry. In January 2010, FINRA issued Regulatory Notice 10-06, providing guidance on the application of FINRA rules governing communications with the public to social media sites and reminding firms of the recordkeeping, suitability, supervision and content requirements for such communications. Since its publication, firms have raised additional questions regarding the application of the rules. Key take aways from FINRA’s guidance include the flowing:
Brokerages have supervisory and record keeping obligations based on the content of the communications – whether it is business related – and not the media
Broker-dealers must track and supervise messages that deal with business
Firms must have systems in place to supervise and retain interactions with customers, if they are made through personal mobile devices
A broker must get approval from the firm if she mentions her employer on a social media site
Pre-approval for instant messages, also known as “unscripted interactions’ in legalese, is not necessary as long as supervisors are informed after the fact
Conclusion.
Many professionals in regulated industries are eager to leverage social media to market and communicate with existing and prospective clients and to increase their visibility. However, participants must ensure compliance with all of the regulatory requirements and awareness of the risks associated with using various forms of social media. Hopefully, the guidance outlined above can serve as a good starting point for discussions about how best to use of social media as well as suggestions regarding factors that firms may wish to consider is helpful to firms in strengthening their compliance and risk management programs. We invite you to contact us with comments and requests about how we can help you educate your employees, prevent fraud, monitor risk, and promote compliance. We can be reached at lsglegal.com, 866-734-256, @adlerlaw and dadler@lsglegal.com.
What is this case really about? Judge Colleen McMahon notes in her opinion that “this case is not about whether Jack Kirby or Stan Lee is the real ‘creator’ of Marvel characters, or whether Kirby (and other freelance artists who created culturally iconic comic book characters for Marvel and other publishers) were treated ‘fairly’.” Rather this case is about “whether Kirby’s work qualifies as work-for-hire under the Copyright Act of 1909, as interpreted by the courts.”
On Thursday, Judge McMahon ruled that the heirs of the late Jack Kirby, creator and co-creator of the well-known Marvel Comics superheroes such as Fantastic Four, X-Men, the Hulk and more, have no legal claim to the copyrights of those characters.
Despite press efforts (including two pieces in the New York Times) to characterize the proceeding as “unfair” to the artists and creators upon whose labors companies profited, the decision reflects long-standing law that vests ownership of certain creative works in the company that commissions them as a “work-made-for-hire.”
ABOUT THE AUTHOR
David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner at the boutique intellectual property, entertainment & media law firm LEAVENS, STRAND, GLOVER & ADLER, LLC based in Chicago, Illinois. My responsibilities include providing advice to business units and executives on copyright, trademark, ecommerce, software/IT, media & entertainment and issues associated with creating and commercializing innovations and creative content, drafting and negotiating contracts and licenses, advising on securities laws and corporate governance and managing outside counsel. Learn more about me here: http://www.ecommerceattorney.com and here: Leavens Strand Glover & Adler, LLC
BITS, the technology policy division of US bank-backed The Financial Services Roundtable, has released “Social Media Risks and Mitigation,” a framework for financial institutions adopting social media and a guide to managing related security risks.
Social media issues span legal, compliance, marketing, communications, IT and human resources departments. “Financial services customers are using social media and demanding that institutions have a secure and prudent presence there,” said Andrew Kennedy, BITS’ social media lead. The bits paper provides an enterprise-wide view of policies, practices, communications and risk management strategies.
David M. Adler, Esq. is an attorney, author, educator, entrepreneur and partner at the boutique intellectual property, entertainment & media law firm LEAVENS, STRAND, GLOVER & ADLER, LLC based in Chicago, Illinois. My responsibilities include providing advice to business units and executives on copyright, trademark, ecommerce, software/IT, media & entertainment and issues associated with creating and commercializing innovations and creative content, drafting and negotiating contracts and licenses, advising on securities laws and corporate governance and managing outside counsel. Learn more about me here: www.ecommerceattorney.com
Here are five interesting articles to look at this weekend.
1. Copyright Fair Use Gets a Boost. Last Friday, the federal district court in Nevada held that the non-profit organization Center for Intercultural Organizing’s posting of a copyrighted news article was a non-infringing fair use. The well-reasoned opinion sets a powerful precedent for fair use and against copyright trolling. http://www.eff.org/deeplinks/2011/04/righthaven-v-cio-it-s-hard-out-here-troll
2. Proper Authentication of Social Media “Evidence” Used at Trial. The Maryland Court of Appeals in the case of Griffin v. State examined a relatively new social media legal issue: determining the appropriate way to authenticate at trial electronically stored information printed from a social networking site. http://www.marylandinjurylawyerblog.com/2011/04/the_maryland_court_of_appeals_2.html
3. Commercial Privacy Bill of Rights Act of 2011 Does Not Spell Do Not Track. Although the proposed law requires disclosure of “clear, concise and timely notice” of a company’s privacy policies and practices regarding the collection, use and distribution of personally identifiable information, the bill does not include specific authorization for a do-not-track mechanism. http://www.itbusinessedge.com/cm/blogs/bentley/senators-formally-introduce-online-privacy-bill/?cs=46477
4. Is Your Web Site Eligible For Trade Dress Protection? While Copyright law protects certain original expression from unauthorized copying, Trade dress law protects commercial use of certain distinct features in connection with a product or service. When consumers associate such “look & feel” features with a product or service, trade dress protection exists. Protection has been extended to the packaging of a product, the décor of restaurant, the design of magazine covers, and even kiosk displays.
In Conference Archives v. Sound Images, 2010 WL 1626072 (W.D. Pa. Mar. 31, 2010), a federal district judge in the Western District of Pennsylvania suggested that under the concept of “look and feel,” trade dress law can reach beyond static elements on a website, such as photos, colors, borders, or frames, to include interactive elements and/or the overall mood, style, or impression of the site since a graphical user interface promotes the intuitive use of the website.” Conference Archives, 2010 WL 1626072 at *15.
David M. Adler, Esq. is an attorney, author, educator, entrepreneur and founder of a boutique intellectual property law firm based in Chicago, Illinois. With over fourteen years of legal experience, Mr. Adler created the firm with a specific mission in mind: to provide businesses 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. Learn more about me HERE and HERE
David M. Adler, Esq. & Assoc.: Safeguarding Ideas, Relationships & Talent®
According to the National Labor Relations Board, the Thomson Reuters Corp. Social Media policy may be violating federal law. At issue is the company’s Twitter policy. The NLRB maintains that it improperly restricts an employee’s right to use Twitter to discuss working conditions with co-workers.
According to the Newspaper Guild, a labor union representing Reuters employees, Reuters publicly disciplined reporter Deborah Zabarenko for posting a Twitter message that said, “One way to make this the best place to work is to deal honestly with Guild members.” The NLRB is taking the position that Reuters policy impairs employees’ rights to discuss working conditions and that it applied the policy improperly.
This marks the second case initiated by the NLRB involving a company’s social media policy.
In the first case arising last October, American Medical Response of Connecticut Inc. allegedly violated labor law when it terminated an employee allegedly for criticizing her boss on Facebook.
The significance of these cases should be clear to any business. First, it is important to have a Social Media policy in place. More importantly, however, Social Media policies need to be written with legal and regulatory compliance in mind. An overly retractive Social Media policy or one that penalizes employees for expressing protected speech will result in legal liability.
While small businesses often need some legal advice, they can’t always find a professional with the right expertise at a budget the small business can afford. Since small businesses usually don’t need lawyers that often, when it comes time to review a contract, buy out a partner or protect their brand and trademark, they often don’t know where to start. The purpose of this article is to give executives a business owners a guide on how to ask a prospective lawyer the right questions to get the service one needs at a price that one can afford.
To get answers to questions about hiring a lawyer, please select one of the links below.
Lawyers are highly-trained professionals who counsel individuals and businesses in a full range of personal and corporate legal matters. Many business transactions have legal implications, so you should try to find a lawyer whom you can treat as a trusted advisor. These questions are designed to help you choose the right lawyer for your situation.
What can a lawyer do for me?
Lawyers provide legal guidance. This doesn’t mean that they can make your business decisions for you. A lawyer should identify legal issues of concern to you or your small business, tell you what the law says about these issues, and advise you on how to address them.
How can a lawyer help me in setting up a business?
A lawyer can:
Explain the advantages and disadvantages of a sole proprietorship, a partnership or a corporation;
draft a partnership agreement or incorporate your company;
review financial documents for your business such as a loan;
review leases of premises or equipment;
act for you in the purchase of property;
review franchise agreements;
draft standard form contracts for use in your business;
advise you how to best protect your ideas, trademarks, designs and know-how.
How can a lawyer help when my business is up and running?
A lawyer can:
help you negotiate contracts and put them in writing;
advise you on hiring and firing employees;
advise you about doing business in other provinces and countries;
help you collect unpaid bills;
defend any lawsuits against you;
advise you about taxes.
If I decide to get out of business, how can a lawyer help me?
A lawyer can:
help you sell your business;
help you sell you ownership interest if you are one of several owners;
arrange for the transfer of the business to your children;
dissolve a corporation or LLC.
When do you need a lawyer?
The recommended approach is to seek the advice of a lawyer whenever a legal issue arises that involves your business. Since it is not always clear when that happens, many problems are solved without resorting to lawyers. When an issue arises, you must first decide whether you need a lawyer at all. In order to know if you should solve your problem on your own, ask yourself the following questions:
What are the consequences if you are unsuccessful?
How complex is the law in your situation?
Do you have the time and energy?
If you are still unsure, some outside professionals, advisors or para-professionals may be useful:
Check with your Board of Directors or Board of Advisors; they can provide information about the steps they went through and the resources they used in solving their problems. Contact government and non-profit organizations for income tax, legal aid, consumer protection, employment standards, etc.
Check with other professionals: accountants, bank officers, insurance agents. For some routine matters, legal assistants, para-legals and notaries public are useful. While not allowed to give legal advice, they can provide added value in familiarity with standard corporate forms and filing requirements.
Also, don’t forget public libraries, legal aid services, student legal services, small claims courts, reading self-help books and other resources such as books, pamphlets and videos.
How do I contact a lawyer?
Give him a call. Most lawyers are happy to steer people in the right direction and calm fears about the legal process. There are several advantages to this approach. The main one is that a lawyer can quickly cut to the heart of your problem, distinguish between legal and non-legal problems. Another advantage is that you usually will not be charged for this phone call. Finally, a lawyer will not only keep your problem confidential, but has the ability to assess it from a less emotional perspective.
Please feel free to call us at (866) 734-2568 should you have any questions.
How do I find a lawyer?
First, try to identify the areas of law in which your problems fall so that you can find a lawyer capable with dealing with all these areas. Some of the main areas of legal practice linked to business are:
Corporate/commercial/securities law (incorporation, buying/selling a business, drafting shareholders/partnership agreement)
Labor/employment law (negotiating and interpreting collective agreements, resolving disputes, explaining obligations, advising about restrictive covenants, dismissals)
Civil litigation law (suing, being sued, collecting debts, negotiating and settling)
Real Estate law (buying or selling land or property, negotiating a lease, solving landlord/tenant disputes, mortgaging property)
Wills and estates (drafting or challenging a will, probate)
What should I ask a prospective lawyer?
Some questions you should ask a prospective lawyer are:
How many years are you in practice?
How long have you been with your current firm?
What areas of law do you practice?
Are you a partner or an associate?
Time and accessibility
How quickly can I expect a resolution?
When can we meet?
How much can I expect top pay?
How do you charge for your services?
Do you provide your clients with a detailed written statement of fees?
Do you charge anything for the first meeting?
Do you communicate via telephone, cell phone, fax or email?
How can I help my lawyer?
Ways you can help your lawyer include:
Be honesty and open
Tell the lawyer all the facts, even the ones that you think are “bad”.
Keep your lawyer up to date on any events or any changes relating to your file.
Ask for advice in plain language and summarize how you understand it.
Ask to be directed to any reading that you could do to better understand.
Ask for a description of the steps your lawyer plans to take and think about the way you could help at each step.
Stay informed and keep track of what transpires on your file.
Take notes at all meetings and list tasks to be completed.
Ask for copies of all correspondence on file.
Have confidence in your lawyer’s advice and follow his/her instructions.
Do not harass your lawyer. If you need more attention, discuss way in which he/she can keep you informed.
Be prepared to accept both positive and negative advice.
Never do anything concerning your case without consulting your lawyer.
Provide information to your lawyer as soon as possible after he/she requests it.
Pay your bills on time and be available if your lawyer needs you.
How do lawyers calculate their fees?
Depending on the complexity of the issues, the services required, and the degree of experience of the lawyer, fees can be charged in different ways:
Billed hourly: charged a rate for the time they spend working for you (e.g. the time spent reading a letter or talking on the phone).
Flat Fee: charge a flat rate for a particular matter, usually when they can predict how long the work will take: incorporations, trademarks.
Contingency Fee: in some matters, the lawyer’s fee will be a stated percentage of the amount of money collected from the lawsuit.
Retainer: provide a range of specified services for a fixed monthly or annual fee.
In addition, lawyers will also bill for disbursements such as long distance phone calls, photocopies, document filling fees, experts’ reports and travel expenses.
Safeguarding Ideas, Relationships & Talent®
Executives face an often confusing and changing set of challenges trying to ensure that their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex and inconstant legal and regulatory environment. Adler & Franczyk is a boutique law firm created with a specific mission in mind: to provide businesses 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.
We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.
We look forward to the opportunity to discuss any questions you may have regarding the range of business, technology and intellectual property services we offer. Please feel free to call us at (866) 734-2568 should you have any questions.
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