Social Media Law: Workplace Issues, Privacy & Data Collection, Electronic Discovery, & More…

For your reference, a roundup of recent social media law updates and news on JD Supra:

On workplace-related issues…

Develop Clear Policy for Employee Social Media Use (Fox Rothschild):

“Employers beware: The National Labor Relations Board is scrutinizing company socialmedia policies — and their rulings apply to all companies, whether or not they are unionized. If Facebook postings or tweets involve working conditions or wages, employees are free to comment.” Read more»

NLRB Protects Many Employee Facebook Postings (Lane Powell PC – Labor & Employment Law):

“One employee asked co-workers – who happened to be Facebook friends – what they thought about a manager’s criticism of their work. Lively banter filled with obscenities followed. They even openly posted comments on Facebook about ‘difficult’ customers. When management learned about the Facebook discussion, all five commenting employees were fired. The decision to fire these nonunion employees was pretty easy, the employer thought. But then the National Labor Relations Board got involved.” Read more»

Employer Liable for Firing Employees Using Facebook (John Sarno):

“The NLRB has received an increasing number of charges related to social media in the past year and the Office of General Counsel has filed charges of unfair labor practices against several employers but this is the first case involving Facebook to have resulted in an ALJ decision following a hearing.” Read more»

Can Your Employer Fire You For Facebook and Twitter Posts? – Maybe (Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck):

“Section 7 of the National Labor Relations Act (NLRA) gives employees the right to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection. This right includes communicating with other employees regarding terms and conditions of employment. When the NLRA was enacted in 1935 social media sites such as Facebook and Twitter were unthinkable. However, in today’s internet-driven world, the National Labor Relations Board (NLRB) has recognized the need to address how these new avenues of communication affect labor and employment law.” Read more»

A Down Economy – An Increase In Hiring Dangers (Fisher & Phillips LLP):

“Desperate to find work and stand out from the crowd, the jobless are turning to such sites as Craigslist to advertise themselves as potential employees to anyone who needs work performed. Often, the posts are heartwarming and detail struggles to find work in a down economy. Yet, in their zeal to find employment, the jobless sometimes reveal more about themselves than employers can typically legally obtain from the interview process. The information can pose significant dangers to employers.” Read more»

Lie about your age…Steal a trade secret…It’s all criminal (Fisher & Phillips LLP):

“Could it possibly be equally as unlawful to lie about your age as it is to download trade secrets from your employer’s computer? Some say that both may constitute a violation of the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”), and therefore the statute must be amended.” Read more»

On privacy and data collection…

FTC Consent Decree Reinforces Need for Websites Aimed at Kids to Comply with COPPA (Davis Wright Tremaine LLP):

“The operator of a website called Skid-e-Kids, a self-described “Facebook and MySpace for kids,” has learned that it is not enough merely to have a privacy policy that requires parental consent prior to obtaining personal information online from children under the age of 13. Such website operators must actually abide by that policy as well. The Federal Trade Commission reinforced that lesson via an enforcement action and settlement with the company this week.” Read more»

COPPA and the FTC: 2011 Update (Priore Law Group):

“Recently, the Federal Trade Commission announced that it would be proposing amendments to update critical aspects of the Children’s Online Privacy Protection Act to better protect minors’ privacy online against ever-developing software designed to circumvent said privacy.” Read more»

New Principles for the Collection of Data Online Released (Wilson Sonsini Goodrich & Rosati):

“Following its publication of ‘Self-Regulatory Principles for Online Behavioral Advertising,’ the Digital Advertising Alliance announced new ‘Principles for Multi-Site Data’ (General Principles) on November 7, 2011. These General Principles cover the collection and use of all multi-site data, or ‘data collected from a particular computer or device regarding Web viewing over time and across non-Affiliate Web sites,’ except data used for online behavioral advertising (OBA) purposes. Any entity that collects data regarding web viewing from unaffiliated sites (for example, through the use of cookies) should carefully review its practices and consider complying with the principles.” Read more»

On electronic discovery…

Electronic Discovery and Social Media (Peter Coons):

“Facebook and other SNS [social networking sites] information are discoverable if it is relevant to the claims or defenses in the case. A claim of privilege may be difficult as well, since the mere posting of information to a SNS means that at least one other person has access to it. The entire purpose of an SNS is sharing with others!” Read more»

Another Excellent Facebook E-Discovery Opinion (Dechert LLP):

“We’ve just been gifted with a downright scholarly opinion on the discoverability of a plaintiff’s relevant Facebook information from a Court of Common Pleas in rural Pennsylvania. It’s not a drug/device case (it’s an auto accident), but if you’re seeking discovery of a plaintiff’s Facebook account, it’s well worth the read. In particular, there’s probably the best discussion of how Facebook works, from a privacy – or non-privacy, as would be a better term – perspective than any other opinion we’ve yet seen. The discussion of Facebook, its privacy settings, tagging, and the like, is on pages 3-5.” Read more»

Other commentary and analysis…

Socially Aware: The Social Media Law Update — Vol. 2, Issue 6 — November 2011 (Morrison & Foerster LLP):

“In this issue of Socially Aware, we discuss employment law considerations in ‘friending’ a colleague; how an ex-employee’s social media use can run afoul of non-compete or non-solicitation obligations to a former employer; a recent court decision in which a plaintiff was ordered to disclose her Facebook and MySpace passwords to opposing counsel; Facebook’s privacy-related headaches in Europe; an overview of copyright troll Righthaven’s recent string of defeats; an important decision in the Perfect 10 v. Google litigation regarding the availability of injunctive relief in copyright infringement actions; and FTC efforts to significantly expand the scope of what constitutes ‘personal information.’” Read more»

Making Sense of Virtual Dollars (Sheppard Mullin Richter & Hampton LLP):

“Financial institutions and currency transactions are highly regulated in the United States. That much is common knowledge. However, game developers may not realize that by creating a system of virtual currency within a game that can be purchased with or redeemed for real currency, they could be opening themselves up to legal issues arising from this morass of federal and state laws, regulations, and rules.” Read more»

Using the Internet to Your Company’s Advantage in Defending Against A Whistleblower Action (Sheppard Mullin Richter & Hampton LLP):

“The wide dissemination of news on the Internet through ‘new media’ online sites such as the Huffington Post, well recognized blogs like the Drudge Report, or social media sites such as Twitter is changing how we get our news today. The Internet is also making it harder for someone to be the first and original source for allegations of corporate malfeasance that can be the basis for a whistleblower or false claims action. In other words, businesses who are defending themselves against a whistleblower or qui tam (false claims) plaintiff (collectively, ‘whistleblower’) should exhaustively search the Internet for evidence showing that the whistleblower is not the ‘original source’ of the information.” Read more»

Lead Generation through Mobile Marketing: Legal and Regulatory Realities (Venable LLP):

“A recent enforcement action taken by the Federal Trade Commission to shut down a marketer using text messages highlights the need to be mindful of the law and regulations that govern mobile marketing. Although the case is many respects a ‘run of the mill’ spam case, what makes this case unique is the services promoted were not those of the sender. Rather, the messages were sent by a lead generator and offered loan modification assistance, debt relief, and other services. The FTC is asking the court to freeze the defendant’s assets with charges that he violated the FTC Act and the CAN-SPAM Act – a law that sets the rules for commercial email.” Read more»


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