Caution: Follow Me At Your Own Risk

Recently, an episode of “Staffers Gone Wild” played out on the internet with the unbelievable tweets of government staff members being broadcast for all to see. Isn’t it comforting to know that your hard earned tax dollars are being spent to fund the watching of Nirvana videos or support drinking while on the job? I’m not here to talk about the politics of this behavior, as I will leave that up to the political pundits to comment on.

What I do want to talk about are some potential legal ramifications that exist in businesses with easy access to the thousands of open eyes and ears reading your posts and tweets. We all know that social media marketing, imaging, and messaging are extremely important in shaping your brand. It takes a lot of time and money to get others to see you as you want them to. However, with one simple tweet your whole plan and message can be compromised, leaving you open to liabilities and harming your brand. Additionally, there are a host of legal pitfalls awaiting you.

It is important to know that each of your employees using social media accounts can be potentially viewed as “agents” of your company. While the law recognizes various types and levels of agents, it has been generally defined as basically someone who is authorized to act for another and/or someone that the outside world would reasonably believe is working on behalf the company (each state has its own “agency” laws and a licensed attorney should be contacted to provide proper legal advice regarding your situation). Any employee tweeting or posting may potentially become a liability to you. Regarding a private (social media) account, employers are somewhat limited in controlling an employee’s personal posts. However, there may be an issue if employees are posting company-related information on their private accounts.

Regarding social media content, businesses need to be aware of laws that govern and limit what can be posted. One of the laws is the Federal Trade Commission’s truth-in-advertising rules, which require businesses to not make misleading, false, or deceptive claims in their advertisements. There are also many intellectual property and copyright laws governing what you can use for your own business without infringing on another company’s ownership rights. Additionally, defamation and harassment laws limit what can be said without invoking other types of legal action from companies or individuals.

So what are some things that you can do to help protect your business?

1. Understand Your Legal Limits – Before employees can understand what information can and cannot be use online, those at the top need to understand first. Seek out those laws that affect your business and understand your legal limits. Of course, if there are any questions, consult a licensed attorney that can address your questions.
2. Empower Your Employee Policy Manuals – In all of your employee policy manuals you should have clear and detailed policies regarding social media use, including who is and is not allowed to post content. When hiring 3rd parties to post content for you, be sure to have clear communications regarding what is allowed and prohibited. It is highly recommended that you hire a licensed attorney to review or write your policy manuals and to draft and review your employee contracts/agreements to minimize your legal risk.
3. Train, Train, Train – Have immediate training with new employees and frequent follow-up training that communicates clearly what can and cannot be said online regarding your business. You should also train employees regarding the potential risks that can occur when using their private accounts, such as defamation, trade secret disclosure, etc.
4. Monitor Content – Depending on the size of your business and the amount of content being generated, this may be a difficult one to accomplish. However, it is extremely important to know what information is going out to the public regarding your business. Have someone in your company that is knowledgeable of the risks to oversee posted content. If something detrimental does go out, the damage may already be done. However, damage control can be better executed the earlier damage is caught.
5. Plan for the Disaster – No one likes think that something bad will happen to them. However, if damaging content does go out, do you have a plan in place? Depending on the harm of the content the plan can range from a quick apology, to reprimanding or firing an employee, to quickly consulting an attorney to defend yourself from legal action. Sit down with your staff and determine what detrimental scenarios can occur from detrimental content and put an action plan in place that can be quickly executed to handle any issues. It is also wise to consult an attorney to review your plans and ensure that proper protections are in place.

(NOTE: In any business, legal issues are not to be trifled with. This information is in no way meant to be construed as a legal opinion and/or as legal advice. The author has provided the information provided herein simply for informational purposes only. It is important to properly plan, prepare and protect yourself from legal issues by contacting a licensed attorney to obtain legal advice for your particular situation.)

About the author:

Shaine has always been fascinated with how people interact with each other and shape the world around them. The internet and social media has brought a whole new sphere in these communications and has produced a world our past would have never imagined possible. He is finishing his law degree and plans on being a licensed attorney by August 2012. He will continue helping businesses navigate around pitfalls and have the most success possible. (NOTE: Any information provided by Shaine is in no way meant to be a legal opinion and/or legal advice. It is important to contact a licensed attorney to obtain proper legal advice for your situation.)

I haven’t heard anything from the crew at WPN  since our interview, but woke up today to a picture text message from Mat Siltala today of my face on the video homepage of WPN (see http://videos.webpronews.com/).  Thanks Mat!

It appears that the production crew has added in some ancillary video and written a nice summary of our  interview. Feel free to check it out – David Mink on FTC Guidelines!

Watch the video here:

More WebProNews Videos

Dates for registration

From April 26 to June 10 registered trademark owners will have the exclusive ability to register the new .co TLD for their registered trademark. (Needless to say, if you own a protected term you will certainly want to register it during this period!) After that protected period general public registration of .co TLD’s will begin in July.

Summary

The .co opportunity = additional traffic and brand management.
The .co risk = a cybersquatter registering your company’s trade name or marks before your do.
The goal = securing your company’s .co opportunity.

Good luck!

Legally Speaking: Recent Legal News About Search – What’s up with legal issues and search engines? That’s what this session is about – filling you in on the always changing developments. From click fraud to copyright to privacy, this session will hit all the major areas that are seeing legal action. Sit back – court is in session!

Moderator: Sarah Bird, General Counsel, SEOmoz.org, Inc.

Q&A Moderator: Barry Smyth, Director, Search Strategies

Speakers:

Travis Crabtree, Member, Looper Reed & McGraw, P.C.
Eric Goldman, Professor, Santa Clara University School of Law
David Mink, Chief Legal Counsel for Dream Systems Media, Dream Systems Media

Travis Crabtree Speaking at SMX

Clarke Walton, Attorney-at-Law, Walton Law Firm

NOTES:

Travis Crabtree, Member, Looper Reed & McGraw, P.C.
Topic: Trademark Law for Internet Marketing

To infringe you need to use their trademark in commerce.  That means in connection with a sale.

Consumer Confusion Factors:

1. The strength of the mark.
2. The proximity of the goods.
3. The similarity of the marks.
4. Evidence of actual confusion.

Cases Reviewed:

1. Brooks vs. Field
2. Google vs. American Blinds Keywords Case
   1. Use is a factor within keyword purchasing ads that shows use pursuant to pushing the case to trial.
3. 1-800-Contacts case
4. Geico vs. Google
5. Izitron Case (not sure on spelling)

The European stance on trademark infrigement dealing with internet law is much stronger.  They take much more action over seas.

Interesting case that has recently come about is American Airlines vs. Google.  Google settled outside of court with confidential terms.  American Airlines just filed against Yahoo as well and this case is still pending in the 5th circuit in California.

David Mink, Chief Legal Counsel for Dream Systems Media, Dream Systems Media
Topic: Developments in Privacy Law

Hypothetical: your employee loses their laptop on the way home from a business trip to Boston in 2010.  What do you do now?

David Mink, CLO Dream Systems Media, speaking at SMX

The answer will probably depend on how cavalier this employee was: did they encrypt their laptop, did they use a password, is the file encrypted?

Legal Problems:

1. Over 40 states now have security breach statutes?
2. Mass. law makes it illegal to store data that is not encrypted, has to be sensitive personal information.

What is sensitive personal information (SPI): This is a persons name associated with other personal information such as their social security number, credit card number, etc.

Mass. Law has many stipulations you must follow to be ensured safety from law.  The law is long.  Dave gave some synopsis, but asked that you review the law.

So what happens if you break the law: nobody really knows because there is no case decisions on this to date.  Most likely the real risk will be a fine and damage to your company brand and image.

“It takes many good deeds to build a good reputation, and only one bad one to lose it.” Benjamin Franklin.

Privacy is a really hot topic right now and focusing on protecting identity theft is a major focus from a government level right now.  Mass. law, Nevada law, etc.  There is a new Gov. agency dedicated to specifically this and overseeing the transfer of SPI.

Clarke Walton, Attorney-at-Law, Walton Law Firm
Topic: ICANN Updates for 2009 and New GTLDs

Clarke Walton Speaking at SMX

What is a GTLD: Generic Top Level Domain
Includes: .com, .net, .org, .edu, .cat, .biz, .info, .asia, .post, etc.  These are different than country code TLDs.  Possible new GTLDs could include: .hotel, .law, .sex, .vegas, .nyc, .google, .ebay, .facebook, etc.

How to get a new GTLD going for you or your company, as ICANN is now opening the process to get approved for a GTLD.  ICANN is creating an application process.  This will be opening up during the last quarter of 2009.

Interesting Issues:

1. Applicant has to show community support to get it.
2. Morality + Public Order…is .sex going to be ok?
3. Possible relaxation of registrar/registry relationship.
4. Same entity ownership may be allowed for new GTLDs.
5. Is there a possibility of trademark infriction when you apply for your GTLD.  There will be costs associated with that, like if Yahoo applies for a .google then Google has to object and bear the costs of that objection.

This possible objection process is being referred to as the ICANN Stimulus Plan.  The application fee is $185,000.  You pay annual fees of $75,000 and/or 5% of revenue.  You must have insurance and financial reserves to show you can carry the domain for years ongoing if your business fails.  Cost for application is estimated to be around 1mm all said and done.

Question and Answer Period

Q: What will prevent merchants from creating denyability by stating, it wasn’t us doing that, it was our affiliate?
A: Will depend on the statute in place in that location and it’s obviously not that easy to just say, hey it wasn’t us and if the affiliate is no longer in business or doesn’t have any money, then they will go off the advertiser.

Q: Does Mass. Law apply to portable back up drives, etc.
A: As long as the device is portable, you need to encrypt is as the statute language specifies devices that are portable.

The facts condensed

Two high school friends/cheerleaders have a falling out that turns nasty. Their bickering leads to school suspensions, criminal mischief conviction, and eventually Calcagni enters a consent degree for a civil hate crime prosecution.

Calcagni’s parents believe their daughter was wronged so they launch a media campaign, which involved writing and publishing the book through Booksurge, to try and right the wrong. The book contained private information about Sandler.

Sandler sues Calcagni and a few others including Booksurge for defamation, privacy invasion, etc.

–Today I will only address Booksurge’s motion for summary judgment, which is simply their effort to get out of the lawsuit before it goes to trial–

The ruling

The District Court of Maine held that Sandler’s invasion of privacy claim was negated because she had posted the same “private information” on her publicly accessible MySpace page. The plaintiff had admitted on MySpace that she had sought psychological help. The court notes that this admission was not only public, but that she obviously did not consider disclosure of these facts to be highly offensive.

Take away lesson

The court’s ruling here could mean that people who post private details about their lives on publicly accessible Web sites (aka social media sites) might be precluded from successfully bringing claims for ‘expectation of privacy’ in those already posted details.

START OF TUTORIAL

What is a copyright? It is an intellectual property protection for certain “expressive” works, including: music, art, poetry, writing, movies, and much more. In order for the work to be copyrighted the following criteria must be met, the work must:
1. Be original
2. Result from a creative effort on behalf of the author, artist, or originator
3. Be in a physical form, or a “tangible medium of expression”

Some things cannot be copyright protected, including:
1. Anything that is fact, including history, science, current news, and other factual information
2. A person’s ideas or thoughts. Ideas must be expressed in tangible form in order to be protected

However, remember that the way in which these things are expressed – such as an editorial about a news event – can be protected.

Generally speaking the person who creates a work possesses the copyright (this is called the Creator Rule), unless:
1. The work is sold with the copyright
2. An employee created the work during employment
3. The work is created on a “made for hire” basis
4. The work was a collaboration between multiple people, in which case a joint copyright is held

The copyright owner maintains the following bundle of rights:
Distribution: The owner can sell or distribute copies of the work
Reproduction: The owner can make copies of the work
Derivative works: The owner can create new works that are adapted from or based on the original work
Performance rights: The owner can perform or display the work publicly

It appears that LinkedIn has been working to take down most of these bogus profiles since it was called out by Trend Micro on Monday (1/5/09). (If you go Google “Salma Hayek LinkedIn” you will see that the page did exist but is no longer available.) Good move as this kind of activity by spammers, malware authors, and other cybercriminals raises many legal issues including social media cybersquatting and possible defamation and trademark claims.

Cybersquatting (also known as domain squatting), according to the United States federal law known as the Anticybersquatting Consumer Protection Act, is registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.

Cybersquatting costs legitimate businesses untold amounts of money. It is about time one of us cost them some money!

Verizon just won over $33 million dollars in a cybersquatting lawsuit!

Verizon just struck a big blow for legitimate trademark and business owners everywhere when they won a record $33.15 million judgment against Internet domain registrar OnlineNIC for cybersquatting. That is A LOT of cash!

What did Online NIC do to deserve a judgment of this size? OnlineNIC had registered at least 663 domain names that were either identical to, or confusingly similar to, Verizon (NYSE: VZ) trademarks, like “Varizon.com” and “verizoncellphonecompany.com.” Online NIC’s reason for registering these names was to make money from all of the typo domain name entries. There are a lot of bad spellers and mistake prone typists out there. You can imagine the number of individuals who would make a simple mistake like misspelling Verizon.com as Varizon.com and accidentally land on a page owned by Online NIC. Many of these same individuals will then click on a Google Ad (which the real Verizon.com is paying for) and be re-directed to the intended site.

This domain name problem is now morphing into a social media problem. Just ask Graywolf -

@graywolf Man spammers using my name to push products on Twitter very very lame

@graywolf All this talk of Twitter going mainstream is BS till they get a handle on spammers and fake profile squatters

It will be interesting to see how the law will evolve as it takes on the social media applications of cybersquatting. To be frank, I cannot wait to see the first landmark case involving cybersquatting and social media!

In the meantime, Kudos to Verizon for doing their part in helping to curb all of the lame-o cybersquatters!

The Question:

“If a person has an email list, about say classic trucks, and then that person hit’s the list with an affiliate promotion for a marketing product; Is that spam?”

I believe the question the reader is getting at is – Can people send non related offers (i.e. marketing product offer to a classic trucks enthusiasts list) to opt in lists?

The Answer:

It depends. The classic lawyer answer! OK, I will do better than that. With SPAM the answer almost always comes down to what is the purpose of the email. To arrive at that conclusion you should evaluate the following:

1. How were the addresses acquired?

The CAN-SPAM Act requires that you have some sort of business relationship with the recipient. (subscription, post-purchase, etc.). If you have simply purchased or rented the list then you are spamming. Assuming you pass this hurdle, let’s look at the next inquiry.

2. Have you included an opt-out option?

Because the primary purpose of your email was promotional the CAN-SPAM Act requires that you provide an opt out, which is functional for 30 days from the mailing date. Next inquiry.

3. Is your header materially false or misleading?

It is unlawful for any person to initiate the transmission of an email which has header information that is materially false or materially misleading. Therefore, if you state in the header that the email has great classic truck information, but really the email is nothing more than an advertisement to join some kind of marketing program you have spammed. Next inquiry.

4. Did you identify the message as an advertisement or solicitation?

You are supposed to identify the message as an advertisement, unless the recipient has given prior permission to receive messages from the sender. For instance, you could use ADV: to signal the recipient. Next inquiry.

5. Did you provide your postal address?

The CAN-SPAM Act requires that you include a valid postal address of the sender.

Conlcusion

Are you spamming? It depends on all of the above (and more). Please read the CAN SPAM Act in it’s entirety. You should also have an attorney (familiar with email laws) review your advertising campaign before transmission of the email to make sure that the campaign is in compliance with the law.