Social Media Management News

Social Media Management News :: Sept | Oct 2010 Legalities

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Legalities

Novartis Receives First FDA Warning over Facebook Marketing

The FDA advised Novartis that it misused Facebook's Share widget in marketing its leukemia drug, TAsigna. The FDA cited the information shared via the widget did not include the risks, and therefore did not provide balanced information. The FDA also took issue with the wording of the information that was shared across friend's pages via the widget.

The regulator took special issue with the fact that while Novartis got FDA approval for the web site content, it did not submit the "shared content" for approval 30 days prior, as required.

[ Resources for you ]

FDA Letter to Novartis

| Download FDA letter to Novartis |

Managing Work Place Ethics of Social Media

Social media brings many values to the enterprise, and with them comes a web of ethical and compliance issues.

Corporate Compliance Insights published an excellent article we highly recommend, titled Managing the Work Place Ethics of Social Media.  A great read for any executive, and a great working document to help managers ask important organizational questions about corporate use of social media.

[ Resources for you ]

Managing the Workplace Ethics of Social Media by Jason Lunday

| Read article: Managing the Workplace Ethics of Social Media |

Social Media Management News :: July | Aug 2010 Legalities

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Legalities

Important EU Behavioral Advertising Opinion Adoption

The EU's national data regulators, Article 29 Working Party, adopted a key online behavioral advertising Opinion on the tracking and advertising technologies used to deliver behavioral advertising.

It holds that by May 20, 2011 Internet users must opt-in to receive "cookies" on their computers - including those already stored on users' computers. These "cookies" are a common technology used to track user activity and alert advertising networks of which ads to deliver the user.

The opinion affects ad networks, agencies, advertisers and publishers, basically anyone in the advertising food chain.

It also instructs that a broad acceptance of cookies - an "one for all" acceptance - must have a time limit, and that there must be greater transparency in privacy risks associated with behavioral advertising.

If the Opinion is implemented by law-makers, it will require the industry to review and overhaul existing technologies and practices to achieve the consumer informed consent it seeks.

The EU's privacy protections are much stronger than those in the U.S. Regulators and privacy groups here have been pressuring the ad industry to do more to disclose the use of consumer behavioral data and provide privacy controls. Undoubtedly the steps taken in the EU will spur further action here in the U.S.

[ Resources for you ]

Global Regulatory Enforcement Alert by Reed Smith

| View article: Article 29 Working Party Opinion 2/2010 on Online Behavioural Advertising: Who Wants Cookies? |

Article 29 Working Party Opinion 2/2010 on Online Behavioural Advertising

| Download Article 29 Working Party Opinion 2/2010 on Online Behavioural Advertising (PDF) |

The FTC strongly warned former publishers of a defunct online dating site that they best not sell or use the personal information of its customers.

The publisher and his former business partner are in a contentious legal battle over who owns the customer data, which includes personal information, contacts lists and sexual preferences.

In a letter to the publisher the FTC warns that the sale or transfer or even the continued use by the publisher in light of its bankruptcy action would violate the Federal Trade Commission Act. The Commission asks that the information be destroyed.

[ Resources for you ]

FTC Letter to XY.Com

| Download FTC letter to XY.Com |

Social Media Management News :: June 2010 Employment

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Employment

LinkedIn connections are at the center of a unique non-compete lawsuit.

Technology staffing company, TEKSystems, contends that former employees violated a non-compete agreement by communicating with TEKSystems contract employees and connecting with them on the social network, LinkedIn.

TEKSystems' complaint cites a specific example of a LinkedIn exchange by one of the former employees.  It isn't clear how the company got their hands on the communication, which in itself could impact the outcome.

Whichever way this one goes, the lawsuit raises some fascinating management questions, especially since the express purpose of LinkedIn is to connect people for business purposes.

Questions that come to mind:

• Is a mere connection a violation of restrictive covenants or non-compete agreements? 
• Are there employer limitations for monitoring social networks for non-compete activities? 
• Can social network updates about current activities and whereabouts be considered a recruitment solicitation?
• Is there a different standard for social media communication versus other forms of communication? 

It is important to review and update your policies and non-disclosure / non-compete provisions for appropriate social media guidelines.

[ Resources for you ]

Employment Law Alert from Nixon Peabody

| Read lawsuit details and recommendations at Nixon Peabody |

News Update:  Review of Employee Text Messages on Employer Pager

The U.S Supreme Court unanimously sided with the City of Ontario saying its review of personal text messages sent from an employer-owned pager was not an infringement on employee's 4th Amendment privacy rights. 

The court found the employer investigation was reasonable.  The City of Ontario reviewed messages sent only during business hours and for the purpose of determining an appropriate service plan for employee pagers.

Employers should take heed, however. 

The court's decision was deliberately narrow.  It did not resolve a key issue in the case -  that of employee expectation of privacy.   It specifically stated that an employee's expectation of privacy would be shaped by workplace norms and changes in information transmission technologies and workplace practices. 

The opinion emphasized that a clear computer and internet use policy - and it being clearly communicated to employees - would be factors in courts analyzing an employee's 4th Amendment rights in investigations of employee communications.

Be sure both your policies - and your compliance training is up-to-date.

Perhaps the most intriguing of the court statements, and a harbinger of issues to come: 

"Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or nec­essary instruments for self-expression, even self­ identification. That might strengthen the case for an expectation of privacy. "

[ Resources for you ]

Summary of case from Carlton DiSante & Freudenberger

| Read case summary at Carlton DiSante and Freudenberger |

Supreme Court Opinion

| Download Supreme Court Opinion Quon vs City of Ontario (PDF) |

Social Media Management News :: June 2010 Legalities

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Legalities

Sexting: Youth Practices and Legal Implications

Harvard Law School’s Cyberlaw Clinic has published this comprehensive background and legal framework document surrounding a practice among youth referred to as "sexting" - exchanging sexually explicit messages or images with peers.

The document comes out of ongoing research by the Berkman Center's Youth and Media Policy Working Group Initiative to identify best interventions and public policy for addressing sexting. 

It summarizes recent research, sexting investigations and prosecutions,  outlines the statutory and constitutional legal issues, and suggests possible responses to sexting.  It concludes with current and pending legislation aimed at addressing sexing.  The entire discussion document is available for download.

[ Resources for you ]

Sexting: Youth Practices and Legal Implications Report

| Download Sexting: Youth Practices and Legal Implications (PDF) |

YouTube v Viacom Confirms that copyright holder is responsible for policing content.

In a $1B  lawsuit, ViaCom claimed that YouTube was liable for federal copyright infringement by facilitating the publication of Viacom-owned content to the site.  The U.S District Court of New York ruled that YouTube complied with the provisions of the Digital Millennium Copyright Act (DCMA) by taking down content when notified, and was not guilty of infringement.

The ruling means that social network sites are not responsible for proactively looking for copyright violations by their users.

Google and public advocacy groups are happy.  Viacom plans to appeal.

What it translates into for content owners is that they must continue to monitoring for individual instances of infringements.

[ Resources for you ]

New York District Court Opinion and Order

| Download YouTube vs Viacom Court Decision (PDF) |

Social Media Management News :: June 2010 Government Sector

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Government Sector

 

 

Federal government agencies have new guidelines on the use of social media and web measurement and customization technologies.

In two separate memos released last week, the federal Office of Management and Budget  updated its guidelines on privacy, use of third party websites and the appropriate use of "cookies" for web user customization and analytics.

Some key guidance for government agencies:

• The same e-services and information found on any third party sites must also be available on the appropriate .gov website.  No user should be required to join a third-party site to have access to that information or e-service.
• There must clear notice and personal choice with the use of measurement and customization technologies.  Agencies must provide an easy opt-out for both.
• The OMB provides 11 required additions to privacy policies when web measurement or customization is used.
• If using multi-session customization features that require personally identifiable information, the agency must have written approval of the appropriate CIO or privacy officer.
• Agencies are required to conduct a privacy assessment when using a third parity site, specifically adapting it to the features of the site. The privacy assessment should be posted on the agency's official website.
• Agencies should update their privacy policies to address their use of third party websites.
• The appropriate privacy policy should be posted on the third party site or application.

[ Resources for you ]

OMB Memo: Guidance for Agency Use of Third Party Websites and Applications

| Download OMB M-10-22, Guidance for Agency Use of Third Party Websites & Applications (PDF) |

OMB Memo: Guidance for Online Use of Web Measurement and Customization

| Download OMB M-10-23, Guidance for Online Use of Web Measurement and Customization (PDF) |

Do you have the right to aggregate information from Facebook?

Facebook doesn't think so.  In fact, they think it is criminal.

The case of Facebook vs Power Ventures could have implications for government agencies who comply with public records acts by archiving information posted on their Facebook pages and other social network presences using automated tools.

Power.com offers a tool that aggregates a user's information across several networks and assists in exporting their data from Facebook.  Facebook says Power Ventures is breaking California criminal law because their terms of service prohibits users from accessing information by automated means.

The issues here are important. 

For one, the outcome may determine if a violation of a private company's terms of service can be a criminal rather than a civil offense (people have faced criminal charges in the past for terms of service violations). 

Secondly, government agencies have legitimate and compelling regulatory reasons for aggregating (or "scraping") social network content and for exporting it to their own systems for storage and reference.

The Electronic Frontier Foundation filed an amicus brief with the court to provide information on the possible impact on social network users.  EFF has developed a Bill of Rights for Social Network Users.  Although it is not a widely adopted standard, it does serve to inform on the stand EFF takes in its substantial advocacy efforts surrounding social networking issues. 

[ Resources for you ]

EFF summary article: It's Your Data, It's Your Bot: It's Not a Crime

| Read Electronic Frontier Article: Facebook vs Power Venture |

A Bill of Rights for Social Network Users

| Read EFF Social Network User Bill of Rights |

Twitter is hiring a Government Liaison.

The position will be Twitter's first Washington D.C. based employee and will launch the company's public policy department.  The liaison will be responsible for helping Twitter better understand public sector needs, as well as helping agencies and policymakers be effective in connecting with constituents through the service.

[ Resources for you ]

Twitter Government Liaison Job Description

| See Government Liaison Job Description |

Social Media Management News :: May 2010 Legalities

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Legalities

U.S. Congress is aiming for consumer information privacy and online data security. 

The House Energy and Commerce Subcommittee on Communications, Technology and the Internet released a draft bill introducing new laws that will affect company online advertising and marketing.

New provisions in the law includes:

• Companies collecting personally identifiable information must clearly disclose how information about individuals is collected, used and disclosed.
• Companies will need express consent (as opposed to "opt-out" provisions) to collect sensitive information such as a user's medical records, financial accounts, Social Security Number, government-issued identification, and precise geographic location information.
• Requires detailed “opt-out consent” to the sharing of an individual's information with third-party advertisers' network.

[ Resources for you ]

Discussion draft copy of the House bill

| Download Discussion Draft of House bill (PDF) |

Regulators provide online privacy notice builder for financial institutions.

 

A number of federal regulatory agencies teamed up to roll out an online privacy notice builder for financial institutions. The agencies involved include the Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), Office of Comptroller of Currency (OCC), Federal Deposit Insurance Corporation (FDIC ), Board of Governors of the Federal Reserve System (FRB), Office of Thrift Supervision (OTS), the National Credit Union Administration (NCUA) and the Commodity Futures Trading Commission (CFTC).   

The online form builder leads financial institutions to one of four forms depending on whether the company is providing customers with a right to opt-out or elects to allow affiliate marketing.

[ Resources for you ]

Financial Institution Privacy Forms

| Privacy Notice Form 1: if you provide an opt out and you want to include affiliate marketing (PDF) |

| Privacy Notice Form 2: if you provide an opt out and you do not want to include affiliate marketing (PDF) |

| Privacy Notice Form 3: if you do not provide an opt out and you want to include affiliate marketing (PDF) |

| Privacy Notice Form 4: if you do not provide an opt out and you do not want to include affiliate marketing (PDF) |

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Legalities

The Financial Industry Regulatory Authority (FINRA) issued formal guidelines in January on blogs and social media websites for securities firm and broker communication rules.  Regulatory Notice 10-06 was issued after FINRA convened a Social Networking Task Force to provide input. 

FINRA stresses regulated firms must take steps to record employee and broker-dealer social media communications.  They deemed that static information on a blog or a social network profile is advertising and must get appropriate approvals, but that "real time" communications does not require the same approvals.  However the FINRA recommends each organization develop specific policies, training and employee supervision in social media communications, especially regarding the recommendation of securities.   

[ Resources for You ]

FINRA Regulatory Notice 10-06 Social Media Web Sites: Guidance on Blogs and Social Networking Web Sites

| Download Regulatory FINRA Notice 10-06 |

The New Jersey Supreme Court has ruled in favor of an employee's email privacy between herself and her attorney when using a company-owned laptop to access her personal web-based Yahoo email. When the employee left the company and filed a discrimination suit, the company used her cached web pages on the hard drive in preparing their defense.

Besides ruling that the company had violated attorney-client privilege in accessing those cached emails, the court found that the company's policies 1) did not expressly warn employees that personal, password-protected, web-based email accounts were subject to monitoring if company equipment was used, and 2) the policy was ambiguous in that it did not adequately distinguish the company's "media systems and services" from personal web-based email, and while also permitting "occasional personal use" of email.

[ Resources for You ]

Summary of Ruling Stengart v. Loving Care Agency, Inc. (A-16-09)

| Download Summary PDF |