Posted By Francine on January 28, 2010

What is defamation?  It is the act of harming or injuring the reputation of another person, by sharing a false statement to a third party. There are two forms of defamation: libel and slander. Libel is when that statement is reduced to writing, which includes pictures, words and videos on the Internet.   Slander is the spoken word. 

A defamatory statement attacks someone’s character or accuses a person of an act that may be considered unethical, immoral, or unspeakable. There are several essential elements of defamation:

1. The statement must be a defamatory statement (causing injury to one’s reputation)
2. Must be a statement of fact
3. Must be a false statement
4. Must be published to a third person (shared with another person)
5. Must cause injury or harm to the person

With the rise of social media and Web 2.0 self-publishing tools, the ability to create content and comment on others content is as easy as clicking your mouse.  Social networking is fun, fast-paced, and easy to do, and it allows us to say things in the heat of the moment, without regard to the consequences.  Defamation occurs when we don’t think before we click. 

In the last year, there have been a number of notable and high profile defamation lawsuits, among them Courtney Love, Kim Kardashian, and Amanda Bonnen, the Illinois woman sued for $50,000 for allegedly defaming her landlord on Twitter.

Often these suits arise, because it’s difficult to distinguish between a statement that is an opinion and a statement of fact. To rise to the level of defamation, the statement must be a statement of fact.  There are no grounds for defamation if the statement is merely one’s opinion.  The challenge is knowing the difference.  So this author’s suggestion is

1. Be mindful of what you say on any social media site.
2. If a statement can be construed as a statement of fact, make sure you can prove that it is true.
3. If you are stating your opinion, be sure that is clear, and state that it’s your opinion. 

The internet is a great place to give and take information, but at the same time provides another outlet for defamation claims to arise. Being truthful or clear that you are merely stating your opinion can help avoid these problems.

Until next time, protect your assets!

Category: defamation of character, libel slander, slander defamation | No Comments »
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Posted By Francine on January 20, 2010

Navigating Social Media in the Workplace!

Social media has infiltrated our everyday lives, and the workplace is no exception. Because of the rise of social media venues, such as Myspace, Twitter, Facebook, Second Life, and LinkedIn, employers are exposed, as never before, to vast bits of information about employees and potential candidates.  In the not so distant past, much of this information would not be available, but employers now face the challenge of being exposed to this extraneous information and the legality of using it. Employers must consider whether the benefits are worth the risks of viewing an applicant’s social media site and using it in the hiring process, and if they choose to use it—to what extent?

There are several considerations an employer should take into account when entering this technological minefield.  Here are a few:

1. Develop a social media use policy, communicate to everyone with a need to know about it, and make sure you enforce fairly.
2. Create a list of the social media that will be used for each and every applicant and what information they will use from the search, forming a consistent process.
3. Delegate the social media search to a neutral party who can filter out protected class information.
4. Strictly adhere to a policy of not “friending” the applicants to learn about nonpublic information from a social media profile.
5. State a valid, business-related reason for the hiring decision and maintain the information to back up that decision.
6. Consult with counsel before deciding to use social media information in the hiring process.

Outside of hiring, social media can be detrimental to a company’s productivity and employee relations, and can affect all aspects of the employment life cycle, making it important to address the issue in company policies. Companies, at the very least, should add broad statements and prohibitions regarding social media in the workplace to existing code of conduct, harassment, and confidentiality policies, and apply them with consistency.

Until next time, think ASSET PROTECTION!

Category: Socia media in the Workplace, Social Media in the Workplace, Workplace and Twitter, social media policy | No Comments »
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Posted By Francine on January 3, 2010

Intellectual property law is a bundle of intangible rights, which consist of copyrights, trademarks, patents, trade secrets, and the right of publicity. Think of it as a basket of fruit—apples, oranges, mangos, kiwis, and bananas—all fruit, but each one, distinctly different. The focus of this post is the “right of publicity”.

A person’s right of publicity is a property right, which prevents others from using that person’s name, likeness, demeanor, image, and/or identity for profit. Misappropriation of that property right is a tort—a civil wrong or injury for which a court will provide a remedy. This right is governed by state law, rather than federal, and has evolved from the law of privacy. Four types of torts are grouped under privacy:

• Intrusion on the plaintiff’s seclusion or solitude, or into his or her private affairs;
• Public disclosure of embarrassing private facts about the plaintiff;
• Publicity that places the plaintiff in a false light in the public eye; and
• Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

When might the right of publicity get triggered? Here are a few occasions:

1. When you sign contracts e.g., a release, reality television contracts, publishing agreements, speaker agreements;
2. When you allow someone to photograph you at an event;
3. When you permit someone to videotape your performance;
4. When you upload photos / videos to social media sites;
5. When you do radio interviews;
6. When someone steals your identity;
7. Imitating a celebrity voice, look, or mannerisms;
8. When someone falsely claims you’ve endorsed their product/service.

 How you protect your right of publicity?

1. Make sure you read EVERYTHING carefully before signing, including Terms of Use
2. Understand what you sign
3. When signing a release or some other document, limit the other person’s use when you can
4. When someone uses your identity, likeness, image, and/or name, take immediate action to stop it

Until next time, protect your valuable intellectual property rights!

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Posted By Francine on December 28, 2009

What’s in Those Terms of Use That You Signed Off On?

With the click of a mouse you can relinquish all the valuable rights you own—without even knowing you are giving them away. There is so much talk about ownership of content on Facebook, Twitter, Second Life and other social media sites.  And while they say, “You Own Your Content,” what else do they say?  They say while you own your own, you do so to the extent the law allows. The Terms of Use (“TOU”) also state that you permit many of these social media sites to do anything they want to do with your content. How does that happen? It happens when you’re not paying attention.  

The following is a portion of the Facebook Terms of Use, so you can see what I mean.  But understand that I use Facebook’s TOU to illustrate what many of these social media sites have included in their TOU:

“For content that is covered by intellectual property rights, like photos and videos (”IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (”IP License”). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. “

This paragraph also gives Facebook the right to license your content to a third party, and you don’t get paid.  Did you know that? Well you did if you read and understood the Facebook Terms of Use.

Another important noteworthy point is that when you upload something into Facebook, and then decide to delete it, delete does not necessarily mean delete. We live a world of virtual footprints, so what you put into the internet stays in the internet. And even though Facebook says the content—even if not deleted—won’t be made available to others, the truth is any savvy techie can access info stored in cyberspace. In fact, there are companies that make a living from doing just that.

“When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).

Facebook’s TOU also state that when you add applications to your Facebook page, your information and content are shared with that third party site, and that the third party site’s TOU govern. 

“When you add an application and use Platform, your content and information is shared with the application. We require applications to respect your privacy settings, but your agreement with that application will control how the application can use the content and information you share. (To learn more about Platform, read our About Platform page.) “

Another important thing to remember is that you DO control your privacy settings, so it’s your responsibility to make sure they say what you want them to say. If you don’t adjust your settings, they just may say that “Everyone” can have access to your info.  Is this really what you want?   

“When you publish content or information using the “everyone” setting, it means that everyone, including people off of Facebook, will have access to that information and we may not have control over what they do with it.. “

So the next time you access a social media web site (or any website) , and before you click “ACCEPT”,  read and make sure you understand it’s TOU.

Until next time, take good care!

Category: Internet law, Terms of Service, Terms of Use, internet policy | 1 Comment »
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Posted By Francine on December 28, 2009

Effective social media policies, at a minimum, should contain the following:

1. Define the type of media that the policy covers, such as text messages, telephone, email, blogs, web sites, and computer use;
2. Clear let people know that there is no “expectation of privacy” in the media, essentially providing that the creator of the policy has the right to monitor and/or search certain areas, within the limits of the law;
3. Define the specific online conduct that the policy addresses, such as sending non-business text messages, accessing web sites except for business purposes, visiting social media sites during business hours and on business computers, visiting pornographic sites;
4. Let people know exactly what is expected of them while either working for you, or visiting your work premises;
5. Clearly define what actions, on the part of the employee or visiting person, would equal a breach of the policy, and
6. What happens if the person breaches the policy?  Will they be terminated, reprimanded, made to pay a fine, or something else?

Because the law changes frequently and because it may be jurisdictional in nature, it’s important for you to consult with a competent attorney before drafting a policy.   The above information is provided for educational purposes only, and in no case is to be deemed legal advice.  

Until next time, take good care!

Category: Francine D. Ward, Francine Ward, Internet law, company policy, internet policy, social media policy | No Comments »
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Posted By Francine on December 23, 2009

Social networking is the hottest discovery since email. It’s fun, fast paced, interesting, and allows you to connect with friends, colleagues, and clients in a way that you never could before. And for entrepreneurs and small business owners, it levels the playing field by allowing you to develop a network and marketing plan at a fraction of the cost. BUT don’t be lulled into thinking you can act with impunity. With all the good social networking can accomplish and the ease in which you can use it, there are landmines to be aware of.

Over the next few weeks, I’ll address a number of legal issues you should be aware of when playing in the social media sandbox, and actions you can take to side-step them. The first issue is the most basic and the easiest for you to comply with–having a social media use policy.

Have a social media use policy.
Do you have a social media policy in your work place? Do you think you need one? The average small business person does NOT have a policy on what’s acceptable behavior in their office, with regards to  social media use. Yet without a policy, which let’s people know what your expectations are, you can’t hold them accountable.  Whether you are a large or  small business, or sole proprietor, you should have a written policy letting people know, what you expect, in terms of their behavior in your workspace.

Communicate your policy.
Having a policy is essential to the effective running of your business.  But a policy alone is useless, unless everyone with a need to know, knows about it. So who needs to know about your social media use policy? At a minimum, the following people need to know about your social media use policy:

1.  Full time staff
2. Temporary staff
3. Part-time workers
4. Independent contractors
5. Consultants
6. Clients who visit and access your computers

Enforce your policy.
Having a policy and communicating that policy are all well and good.  But if you have a policy and don’t enforce it, or you enforce it against only certain people, then it is as if you have no policy at all.

Until next time, beware of social networking landmines!

Category: Blog Law, Internet law, internet policy, social media policy | No Comments »
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Posted By Francine on December 10, 2009

On December 1, 2009, the Federal Trade Commission (FTC) issued a report examining the targeting of sexual, violent, and explicit online content to kids. This report was mandated by Congress, and is titled, “Virtual Worlds and Kids: Mapping the Risks”. The report is a plea to virtual world operators to take a number of recommended steps in an effort to shield kids from explicit content. The report further urges parents to familiarize themselves with the virtual worlds their kids visit. http://tinyurl.com/y8zn4tf

The report reveals, in shocking detail, how easy it is for kids to gain access to explicit content in any number of virtual worlds, and specific measures virtual world operators should take to prevent minors from viewing such content.

Virtual worlds have become popular because they blend the fun, fast-paced, interesting game experience with the community building social networking experience. Through the use of avatars—digital representations controlled by humans in real time—virtual world users socialize, network, play, and even conduct business in graphics-intensive venues, which utilize text or voice chat, sounds, gestures, and video. Users interact with other users and get to create their own user-generated content for an even more enhanced experience. For all the fun benefits of the virtual worlds, explicit content is readily available—at no charge—to minors. The FTC discovered that in some instances, despite the fact some virtual worlds are designed for teens and adults, that they allow, and even encourage minors to circumvent the virtual worlds’ minimum age requirements.http://tinyurl.com/yzf8ysr

In researching this issue, the FTC studied a number of online virtual worlds: some intended for adults only, some appealing to teens, and some intended for young children. The results of the FTC’s research was quite telling. The FTC found at least one instance of either sexually or violently explicit content in 19 out of the 27 virtual worlds surveyed. It found a large amount of explicit content in 5 of the 27 virtual worlds studied, a moderate amount in 4 worlds, and only a low amount in the remaining 10 worlds. The FTC goes on to report, that of the 14 virtual worlds studied, which were designed for, and open to children under age 13, 7 contained no explicit content, 6 included a low amount, and one virtual world contained a moderate amount of explicit content. And, most of the explicit content found in the kid-targeted virtual world sites was text posted in chat rooms, on message boards, and/or in discussion forums.

In the report, the FTC explores ways virtual world operators can prevent minors from accessing explicit content.

The FTC makes 5 recommendations to virtual world operators in an effort to reduce the risk of exposure to explicit content, by children:

• Use more effective age-screening mechanisms to prevent children from registering in adult virtual worlds;
• Use or enhance age-segregation techniques to make sure that people interact only with others in their age group;
• Re-examine language filters to ensure that they detect and eliminate messages that violate rules of behavior in virtual worlds;
• Provide more guidance to community enforcers in virtual worlds so they are better able to review and rate virtual world content, report potential underage users, and report any users who appear to be violating rules of behavior; and
• Employ a staff of specially trained moderators who are equipped to take swift action against rule violations.

The FTC report also strongly recommends that parents and children become better educated about online virtual worlds, and affirms the FTC’s commitment to ensuring that parents have the information
they need to make informed choices. http://tinyurl.com/y8zn4tf

Category: FTC Rulings, Francine D. Ward, Francine Ward, Internet law, Kids virtual worlds, Online virtual worlds for kids, content protection | No Comments »
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Posted By Francine on December 5, 2009

Here are several scenario examples of what is an endorsement for the purposes of the New FTC Rules on Testimonials and Endorsements.

Example 1: A film critic’s review of a movie is excerpted in an advertisement. When so used, the review meets the definition of an endorsement because it is viewed by readers as a statement of the critic’s own opinions and not those of the film producer, distributor, or exhibitor. Any alteration in or quotation from the text of the review that does not fairly reflect its substance would be a violation of the standards set by this part because it would distort the endorser’s opinion. [See § 255.1(b).]

Example 2: A TV commercial depicts two women in a supermarket buying a laundry detergent. The women are not identified outside the context of the advertisement. One
comments to the other how clean her brand makes her family’s clothes, and the other then comments that she will try it because she has not been fully satisfied with her own brand. This obvious fictional dramatization of a real life situation would not be an endorsement.

Example 3: In an advertisement for a pain remedy, an announcer who is not familiar to consumers except as a spokesman for the advertising drug company praises the drug’s
ability to deliver fast and lasting pain relief. He purports to speak, not on the basis of his own opinions, but rather in the place of and on behalf of the drug company. The announcer’s statements would not be considered an endorsement.

Example 4: A manufacturer of automobile tires hires a well-known professional automobile racing driver to deliver its advertising message in television commercials. In these commercials, the driver speaks of the smooth ride, strength, and long life of the tires. Even though the message is not expressly declared to be the personal opinion of the driver, it may nevertheless constitute an endorsement of the tires. Many consumers will recognize this individual as being primarily a racing driver and not merely a spokesperson or announcer for the advertiser. Accordingly, they may well believe the driver would not
speak for an automotive product unless he actually believed in what he was saying and had personal knowledge sufficient to form that belief. Hence, they would think that the advertising message reflects the driver’s personal views. This attribution of the underlying views to the driver brings the advertisement within the definition of an endorsement for purposes of this part.

Example 5: A television advertisement for a particular brand of golf balls shows a prominent and well-recognized professional golfer practicing numerous drives off the tee. This would be an endorsement by the golfer even though she makes no verbal statement in the advertisement.

Example 6: An infomercial for a home fitness system is hosted by a well-known entertainer. During the infomercial, the entertainer demonstrates the machine and states
that it is the most effective and easy-to-use home exercise machine that she has ever tried. Even if she is reading from a script, this statement would be an endorsement, because
consumers are likely to believe it reflects the entertainer’s views.

Example 7: A television advertisement for a housewares store features a well-known female comedian and a well-known male baseball player engaging in light-hearted banter
about products each one intends to purchase for the other. The comedian says that she will buy him a Brand X, portable, high-definition television so he can finally see the strike zone. He says that he will get her a Brand Y juicer so she can make juice with all the fruit and vegetables thrown at her during her performances. The comedian and baseball player are not likely to be deemed endorsers because consumers will likely realize that the
individuals are not expressing their own views.

Example 8: A consumer who regularly purchases a particular brand of dog food decides one day to purchase a new, more expensive brand made by the same manufacturer. She writes in her personal blog that the change in diet has made her dog’s fur noticeably softer and shinier, and that in her opinion, the new food definitely is worth the extra money. This posting would not be deemed an endorsement under the Guides. Assume that rather than purchase the dog food with her own money, the consumer gets it for free because the store routinely tracks her purchases and its computer has generated a
coupon for a free trial bag of this new brand. Again, her posting would not be deemed an endorsement under the Guides.
Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive
review would be considered an endorsement under the Guides.

Category: Blog Law, Business Law, Endorsements, FTC Rulings, Internet law, Marketing law, Testimonials | No Comments »
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Posted By Francine on December 5, 2009

There are so many questions as to how a Blogger or Information Marketer can protect themselves inlight of the NEW FTC Rules on Testimonials and Endorsements. Here’s how:

Category: Blog Law, Endorsements, FTC Rulings, Internet law, Marketing law, Testimonials | No Comments »
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Posted By Francine on December 5, 2009

Category: Blog Law, Business Law, Endorsements, FTC Rulings, Internet law | No Comments »
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