The March 21st passing of the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) has dramatically altered the rules of engagement for social media companies. The new law amends and clarifies that the Communications Decency Act of 1996 was never intended to legally protect websites that unlawfully promote and facilitate prostitution and human trafficking or websites that should have known their platform was being utilized for such activities. The bill also creates new areas of civil liabilities for companies and necessitates more active monitoring of online accounts. In their recent Client Alert, colleagues William M. Sullivan, Jr. and Fabio Leonardi examine the immediate and future ramifications of the bill.
Under Section 7 of the National Labor Relations Act (NLRA), all employees have a right to engage in protected concerted activity, even if they are not unionized. Such activities include those performed for the mutual aid or protection of all employees, such as discussing the terms and conditions of employment. An employer is prohibited by the Act from interfering with, restraining or coercing employees from exercising their Section 7 rights. In the past decade, there have been a number of important cases decided by the National Labor Relations Board (NLRB), the agency that protects the rights of employees to join together and improve wage and working conditions, that impact social media policies. In fact, many of the decisions have struck down social media policies as unenforceable under the NLRA. If any provision in a social media policy is vague or overbroad and can be read as restricting activities protected by Section 7, that provision will likely be found unlawful and unenforceable by the NLRB.
As we previously discussed in our post “The ‘Commander-in-Tweet’ and the First Amendment,” the POTUS was criticized by the Knight First Amendment Institute for blocking certain Twitter users from his @realDonaldTrump account. According to the Knight First Amendment Institute, President Trump’s Twitter account functions like a town hall meeting where the public can voice their views about government actions and attendees cannot be excluded based on their views under the First Amendment. Therefore, according to the Knight Institute, President Trump is violating the First Amendment by blocking users based on the content of their tweets. Subsequently, on July 11, 2017, the Knight First Amendment filed suit against President Trump and his communications team on this basis.
Whether or not your friends and family get a kick out of your misery at work, that online post of yours might tick off your employer. But what rights do employers have to restrain their employees from complaining about them online? Can employers punish employees for posting their grievances online? How do courts differentiate between “protected” and “tantrum” posts? What is the Government’s view on employees’ social media postings? In 2011, Pier Sixty LLC fired Hernan Perez for labeling his supervisor a “nasty M.F.” and using similarly profane language against his supervisor’s family in a Facebook post that ended with a plea to “Vote YES for the UNION.” In a 2016 decision, the Second Circuit enforced the National Labor Research Board’s (NLRB) decision and found that the employee was protected under the National Labor Relations Act (NLRA) because the post was in relation to a union-related activity.
At the end of 2016, the U.S. Customs Border Protection (CBP) implemented a rule to include questions concerning social media accounts of travelers to the United States during the Visa Waiver Program screening process (VWP). The VWP permits citizens of 38 countries to visit the United States for up to 90 days without having to obtain a visa. ESTA is the automated system that determines the eligibility of travelers entering through the VWP. Now, in addition to collecting biographical information from a traveler, CBP will request social media identifiers of travelers during the ESTA application process for vetting purposes. Continue reading →
Brand companies have come to view user-generated content as often one of the most effective and authentic ways to advertise their products or services. This is known as “user-generated content marketing.” For example, with the ubiquitous selfie, brand companies have discovered a rich supply of user-generated content. Consider a consumer who takes a selfie wearing a favorite pair of jeans, posts the photo on Instagram, and then tags the photo with #brandname. The jean company sees and likes the photo, re-posting it on the company website. Legal issues? If the consumer or user was hoping to get attention from the brand for the photo and opinions shared online, not at all. This is how many digital influencers get their start. But if the user was not seeking such attention? Then, problems can arise.
Notwithstanding that the people involved are often surprised at their public exposure, it has become somewhat commonplace for individuals to be either caught on video by a smartphone or to have a social media website posting that demonstrates poor judgment go viral. All employers should consider having a social media response plan for just these sorts of incidents, in some cases to protect other employees and in many cases to protect the employer’s brand and reputation. Even then, employers must strike a fine balance in navigating their rights and responsibilities towards all affected by the sudden exposure.
The Federal Communications Commission’s Accessibility and Innovation Initiative will host an “Accessing Social Media” event on Thursday, July 17, 2014 from 9 a.m. to 4 p.m. in the Commission Meeting Room in its headquarters located at 445 12th Street, S.W., Washington, D.C. The event will be webcast without open captioning. The event is open to the public, however, RSVPing for in-person attendance is encouraged.
The FCC’s stated purpose of the event is “to facilitate a collaborative, cross-sector exchange of information about making social media tools and content accessible to people with disabilities, including information about authoring tools, client apps and best practices.” The event will include panels of industry, consumer and government representatives and feature technology demonstrations in an exhibit area.
2013 was an incredibly active year for social media legal issues. Below are selected highlights on some of the more interesting legal issues that impacted social media, along with links to reference material relating to the topics.
1. Virtual Currency/Bitcoin
FinCEN Virtual Currency Guidance and Enforcements – FinCEN published legal guidance on virtual currency making clear that existing regulations regarding money transmitter and anti-money laundering laws apply to certain virtual currency activities. Shortly after issuance of the guidelines,
a wave of enforcements shut down non-complying entities. [BLOG]
Congressional Hearings on Virtual Currency – Congressional hearings were surprisingly more friendly and receptive of Bitcoin and other virtual currencies.
2. Privacy – Guidance and Enforcements
CA Privacy Law
– California passed new privacy laws.
3. Intellectual Property/Patents
Patents – The number of social media patent filings continued to increase. The America Invents Act (AIA) fully kicked in, providing a greater ability to challenge patents believed to be invalid without going through district court litigation. The Fast Track
process to get patents issued more rapidly (often in less than a year)
Ownership of Social Media Accounts and Followers – Despite a number of cases (including ones involving LinkedIn and Twitter) relating to ownership of social media accounts, the law remained murky and fact specific.
This uncertainty can be avoided by proper attention to social media policies before issues arise.
4. Employment Law and Social Media
National Labor Relations Board (NLRB) – The NLRB continued to issue surprising guidance and decisions on social media usage. In many cases, some or all provisions of employers’ policies governing the use of social media by employees were found to be unlawful. [BLOG] The NLRB affirmed that workers have the right to discuss work conditions freely without fear of retribution,
whether the discussion takes place in the office or on Facebook. But later in the year it actually found some uses of social media for employment (firing) decisions to be okay.
Employer Access to Social Media User Names and Passwords – By year end, 36 states had passed or initiated legislation prohibiting employers from requesting personal social media account information or passwords in connection with employment decisions.
National Conference of State Legislatures Report – Some states have similar legislation to protect students in public colleges and universities.
5. Online Gaming
First mover states
forged forward with online gambling.
· Nevada – Legalized online poker and granted its first licenses for interactive gaming.
· New Jersey – In February, passed legislation (signed into law by Governor Chris Christie) allowing on-line wagering. Subject to certain limitations, licensed operators are permitted to offer online versions of a wide variety of games currently permitted in Atlantic City casinos (e.g., roulette, craps, black jack, and slots).
· Delaware – On October 31, launched what Delaware officials call a “full suite” of internet gambling.
Zynga – In September,
Zynga withdrew its bid for a gambling license in Nevada
Federal Gambling Legislation
– The prospects for a federal law for online gambling remain elusive.
Mobile Health Applications
– The Food and Drug Administration (FDA) issued guidance that focused on applications that present a greater risk to patients if they do not work as intended or that cause smartphones or other mobile platforms to impact the functionality or performance of traditional medical devices.
– The FTC issued guidance in April focusing on truthful advertising and privacy.
gaming promotions in a cause-related marketing campaign (where purchase of a good or service benefits a charitable cause).
Internet Sweepstakes Café Conviction in Florida – Lawyer Kelly Mathis was convicted on 103 of 104 counts related to illegal gambling based on his role in Internet Sweepstakes Cafés in Florida. He faces up to 30 years in prison. CA, OH, SC and other states moved quickly to shut down similar operations.
Equity-based crowd funding legalized in the United States
Equity crowd funding is much like crowd funding, which has been popularized in the United States through sites such as Kickstarter and Indiegogo. The difference is that instead of individuals supporting campaigns through donations, numerous investors are purchasing small stakes in startups or small businesses.
– Critics of equity crowd funding worry that the industry will be rife with Ponzi schemes or that having too many investors will hurt startups’ prospects for future funding.
FTC Enforcements on Fake Endorsements – In February, the FTC permanently stopped a fake news website operator that allegedly deceived consumers about acai berry weight loss products. The settlements will yield more than $1.6 million and conclude a sweep against online affiliate marketers and networks. The sites falsely claimed endorsements from ABC, Fox News, CBS, CNN, USA Today and Consumer Reports.
Many companies’ understanding of and compliance with the FTC Endorsement Guidelines remains lacking, yet enforcements continue.
Wearable Computing Lawsuit
Google Glass Liability? – In what may be a foreboding development, a California woman received a traffic ticket for wearing Google Glass while driving. Many states have broad distracted-driving laws or bans on certain monitors that may apply to Google Glass and similar wearable computing devices.
The Sacramento Bee in an article titled Job Front: Social media are growing recruitment tools reported that “[e]mployers in greater numbers are relying on social media to recruit new talent,” according to Jobvite’s 2013 Social Recruiting Survey. The Sacramento Bee noted that the survey “showed about 94 percent of employers either use or plan to use social media to recruit workers.” It also noted that “Pollsters found that social-network giants Facebook, LinkedIn and Twitter remain the most popular tools to recruit talent, but that employers are also using YouTube, Instagram, blogs and other social media to find new employees. Still, LinkedIn leads the way among those hiring officers polled.”
Additional Resource: The Sacramento Bee; Jobvite