Social Media and the Law: Spring 2011 Roundup

For your reference, here is a roundup of recent legal updates covering developments at the intersection of Social Media and the Law. You should know:

Facebook v. Ceglia: Facebook’s May 26, 2011 ‘Answer and Affirmative Defenses’

 On May 26, 2011, Facebook Inc. filed a response in United States District Court (Buffalo, New York) in response to Paul Ceglia’s lawsuit claiming ownership of 50% of the social giant. From the opening lines of the filing, the company does not mice words: “This lawsuit is a brazen and outrageous fraud on the Court. Plaintiff is an inveterate scam artist whose misconduct extends across decades and borders. His latest and most farreaching fraud is the Amended Complaint filed in this action, which is based upon a doctored contract and fabricated evidence…” Any guess on where Facebook stands on this isue? Read entire filing»

Is Your Company’s Social Media Launch Ahead Of Its Compliance Program?

From law firm Sheppard Mullin, a look at the multifold legal issues of Compliance when enacting a corporate social media policy: “Another risk of social media was highlighted by settlements that the FTC reached with Twitter and Google concerning shortcomings in their privacy guidelines. The consent decrees reached by each of the companies highlight how seriously the FTC takes the safeguarding of consumer information. In the case of Twitter, the FTC put the responsibility for hackers gaining administrative access to Twitter personal accounts on Twitter. One hacker gained access to non-public information such as users email addresses and mobile phone numbers. The same hacker changed the passwords for approximately 45 high profile Twitter users including President Obama and sent phony tweets from those accounts…” Read on»

Court Holds That Using Facebook at Work Does Not Violate the Computer Fraud & Abuse Act

From law firm Fisher & Phillips; the title says it all. “The debate rages on concerning the scope and extent of the federal Computer Fraud & Abuse Act. In simple terms, the CFAA makes it unlawful to access a protected computer without authorization (or in excess of one’s authorization) and to damage the computer or obtain information that one is not entitled to obtain. Originally a criminal statute, the CFAA also provides for a civil claim if certain conditions are met. Courts have long debated whether the statute applies in the context of an alleged faithless employee who accesses an employer’s information contained on a computer for an improper competitive purpose. Regardless of the varied judicial opinions addressing this point, the United States District Court for the Middle District of Florida recently rejected as “dubious” a somewhat novel argument that an employee violated the CFAA by accessing Facebook and her personal email at work…” Read on»

Legal Danger Zone: ‘Friending’ Your Boss – or Your Employee

From law firm Ropers, a look at the legal minefield of connecting with employees outside of the workplace via social media. “If you’re going to be watching what your employee is doing, be sure you aren’t spying. Such activity is often called “pretexting,” which occurs when an employee gets a friend request from a person who is pretending to know the employee. The employee accepts the friend request based on that false representation. The fake friend then monitors the employee’s behavior…” Read on»

“TWEET!” You’re Fired

From law firm Warner Norcross & Judd, analysis of  just how employers are constrained from firing employees for their social media updates. The article looks at the NLRB’s recent clarification of “protected activity” in light of firings to do with employee activity on Twitter and Facebook. “What is important and instructive about this particular Advice Memo is that the NLRB acknowledged that ‘in warning the [reporter] to cease his inappropriate Tweets … the Employer made statement that could be interpreted to prohibit activities protected by Section 7.” That’s right, what the Advice Memo basically says is, if your social media policy contains any of the prohibitions above it is an unlawful restriction and violates the NLRA.’” Read on»

New Do-Not-Track Bills Target Online Behavioral Marketing and Mobile Apps

From law firm Davis Wright Tremaine, an update on a legal development larger than social media, but certainly affecting it. One focus here (“political hook” is it is called) is the protection of children under the age of 18 during their various online activities. “The bill would require websites, online services, online apps and mobile apps to obtain opt-in for the collection, use and disclosure of “geolocation” information on users under 18. Prior verifiable parental consent would be required on behalf of a child. Exceptions and safe harbors from federal and state claims are provided for the needs of law enforcement…” Read on»

Class Actions Filed Against Twitter And Myspace For Sending Text Messages Confirming Opt-Out

Law firm Loeb & Loeb reports from the OK-Well-There-It-Is-Then Department with this legal news: “Class action lawsuits have been filed against social networking sites Twitter and MySpace in federal district court, alleging violations of the Telephone Consumer Protection Act(TCPA). According to the Twitter complaint, plaintiffs signed up to receive text messages from Twitter. Later, plaintiffs decided to terminate the text message program by texting ‘STOP’ in response to one of the texts from Twitter. Twitter then sent a text message to plaintiffs confirming that they had opted-out of receiving future text messages…” Read on»

Taxing the Virtual World … And Beyond

From law firm Sutherland: “This article provides a high-level overview of the state tax issues that arise within the virtual world — from avatars to apps, from coupons of sorts to digital marketplaces, from in-game pizza delivered to your real-life door to videos delivered on handheld devices and beyond. These new business models call into question traditional notions of when and where income should be taxed; raise doubts about the application of sales tax rules to modern transactions that may involve multiple parties and locations; highlight issues regarding the taxation of virtual currency exchanged for tangible or virtual goods or services; and pique the interest of unclaimed property administrators who knew what property was before the digital age…” Read on»

Advertising Law Newsletter – May 2011

Law firm Manatt’s Advertising Law newsletter includes a handful of Facebook nuggets, including: “The father of a minor son filed a federal lawsuit against Facebook, alleging the company violates New York law by misappropriating minors’ images when they ‘like’ things on the site without first receiving parental permission. The plaintiff, who is seeking class-action status, argues that Facebook is using his son’s image for commercial purposes…” Read on»

Online Social Media and Nonprofits: Navigating the Legal Pitfalls

From law firm Venable, slides from a recent attorney presentation on the topic of Social Media and nonprofits. Includes a look at: “(1) Participation; Community; Interaction (2) Entity Use of Online Social Media Platforms- Defamation, IP, Privacy, Advertising, Promotions (3) Employee Use of Online Social Media- Workplace Environment, Recruiting/Hiring, Privacy,Developing Policy…” Read on»

DOL Announces Introduction of Smartphone Application to Help Employees Track Work Hours

Want to better track employee work house? The Department of Labor says there’s an app for that. And they would know; they built it. From law firm McNees: “The DOL announcement notes that this new technology is significant because, ‘instead of relying on their employers’ records, workers now can keep their own records,” which can “prove invaluable during [a DOL]…investigation when an employer has failed to maintain accurate employment records.’ The DOL further indicated that future apps may be launched to assist employees with compliance issues relating to payment of tips, commissions, bonuses, holiday pay, weekend pay, shift differential and pay for regular days of rest, as well as for impermissible pay deductions…” Read on»

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