Posted By Francine on March 7, 2010

Listen to the audio here or read below:

A client recently got mad when I told her she needed to change her marketing tools (e.g., websites, social media profiles, and blogs) in order to comply with the NEW FTC advertising rules on testimonials and endorsements.  A die hard information marketer, she insisted that I was wrong.  She said, “My coach—a very successful info marketer—told me those advertising rules don’t apply to me, because I’m not paying anyone to give me an endorsement.” “Plus,” she said, “I have ‘Results Not Typical’ everywhere on my site.” I told her that the information she’d been given was inaccurate, and that the FTC advertising rules, in fact, DO apply to her.  As an information marketer, I said, you are exactly who the FTC is targeting. 

She is not alone in having a vested interest in believing inaccurate information about the new FTC Rules on endorsements and testimonials.  Many internet marketers want to believe that the internet rules, more specifically the advertising rules, don’t apply to them, because it means changing their business model.  It means in some cases significantly altering the way they do business, which can dramatically affect their pocketbook.  But like it or not, the FTC is serious about tracking down violators.  Marketers who, through a variety of advertising mediums on the internet, disseminate false and misleading information about their products and services are the focus.    

At a minimum, the FTC Rules require that an advertiser disclose any material relationship between it and an endorser, whether or not you paid them to endorse your product or service. A posting on your social media site, wiki, a blog, chat room, discussion board, forum, or any other internet venue may be considered an endorsement. Transparency through disclosure is key.  Failure to comply can subject both the advertiser and the endorser to liability, particularly if the claims were unsubstantiated or in any way, misrepresented the product or service.

So what can you do to protect yourself:

1. Take the FTC Rule on endorsements & testimonials seriously!
2. Review all of your marketing materials with a view toward FTC Rule compliance
3. Ask yourself, “could an endorsement of your product/service, when viewed objectively, be perceived, by consumers, as sponsored by you, therefore an advertisement?
4. Disclose all “material connections” between the advertiser and endorser.
5. Make sure you disclose in a conspicuous manner what the average consumer can expect to gain from use of your product/service
6. Make sure you have reliable evidence of any claim made about your product/service
7. Don’t rely on “Results Not Typical” to satisfy the FTC requirement, because it won’t (See Footnote 1, pg. 5, http://tinyurl.com/ygcmpfd
8. Accurately represent customers expectations
9. Review this FTC Rule pronouncement carefully, especially  §255.2 if you use consumer testimonials (http://tinyurl.com/ygcmpfd)
10. Consider hiring someone to help you interpret the New FTC rules in light of your product/ser

Category: Advertisng Rules, Endorsements, FTC Rules, FTC Rulings, The Internet rules. | No Comments »
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Posted By Francine on February 22, 2010

Listen here to the Twitter lawsuit audio or read below:

Twitter lawsuits. Social media is the hottest thing since pantyhose, roller boards, laptops, and email. It’s fun, fast paced and allows us to create community as never before.  We can connect with family and friends, find old pals, and build a customer base at a fraction of the cost of rolling out an expensive PR campaign.  But with all the cool things social media allows us to do, there are some serious legal issues to be aware of.  One of the most common is defamation — making statements of fact, to a third party, which injures  another person’s reputation. 

Often times we hear about celebrities who get sued for what they say in social media venues, and we think it’s no big thing.  Sometimes perhaps we even think it’s “cool” to be sued, just like Kim Kardashian.  While it may not be a big thing for rich celebs who can afford to be sued–what about you?  Are you in a position to defend a lawsuit? is it worth finding out?  And no doubt, many of the lawsuits are dismissed, but think pf the legal fees you’d have to pony up to get a case dismissed.  Learn from there mistakes.  

Here are a few of the more recent and more Twitter lawsuits:

1. Amanda Bonnen http://www.huffingtonpost.com/2010/01/20/amanda-bonnen-twitter-sui_n_430522.html
2. Courtney Love http://www.nationalpost.com/arts/story.html?id=1447916
3. Kim Kardashian http://www.foxnews.com/entertainment/2009/12/30/cookie-diet-kim-kardashian/
4. Grant Raphael http://www.msnbc.msn.com/id/25840728/
5. Argee Guevarra http://www.abs-cbnnews.com/technology/09/21/09/facebook-user-welcomes-belo-libel-suit
6. Sacha Baron Cohen http://artsbeat.blogs.nytimes.com/2009/04/21/a-legal-victory-for-ali-g-and-sacha-baron-cohen/
7. The Dixie Chicks http://www.cbsnews.com/stories/2009/12/02/entertainment/main5866589.shtml
8. John Grisham http://www.csmonitor.com/Books/chapter-and-verse/2010/0203/Libel-suit-against-John-Grisham-is-dismissed

For more interesting lawsuits, check out www.fwardattorney.com/

Visit me on Twitter (www.Twitter.com/francineward)

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Posted By Francine on February 15, 2010

Seattle beating of a 15-year old girl.  Everyone is focused on the security guards not taking affirmative action.  But, could the bystanders be charged with a crime? Is it a “legal” issue, a “good neighbor” issue, or both? And if so, who is the culpable party? http://www.cnn.com/video/#/video/crime/2010/02/11/rickslist.seattle.beating.cnn?iref=allsearch

If you’ve watched Law & Order, the Practice, Perry Mason, Raising the Bar, Matlock, Murder in the First, the Good Wife, or any number of legal related programs over the last 50-years, no doubt you’ve heard terms, such as aiding and abetting, accomplice theory, accessory before the fact, and  accessory after the fact.  These are terms used to describe someone who participated in a crime, in a manner sufficient to be guilty, just as if they had been the principle guilty party.  

• Accomplice: one who assists or encourages the carrying out of a crime, but doesn’t actually commit the criminal act itself.
• Principal: the person who commits a crime.

The key factor in determining whether someone is an accomplice is if they aided, abetted, encouraged, or assisted another person in performing a criminal act.

So the question becomes, is a bystander –someone who stands around and watches a crime taking place—an accomplice to the crime? And if not, should they be accountable in any way?  

Without more facts, what I can say is that if it’s found that the bystanders, in any way, encouraged, participated in, assisted, and/or aided the teenager who brutally beat up the 15-year old girl, then under the “accomplice theory” those bystanders would be guilty.  And despite the fact that the security guards were told to remain passive, if it is determined that by their passivity they aided or encouraged the beating, they too could be found culpable.  We’ll see as the case unfolds.

Finally, suppose there was no duty to act—to help the young girl—what about the humane thing to do? What about the spiritual or Christian thing to do?  In a country where we talk a lot about how much we believe in God and how Christian we are, I pose the question—are you a Christian or a spiritual person because you say you are, or because you behave that way.  And what is Christian or spiritual-like behavior?  Would God, Jesus, Allah, or whomever you worship to, stand by and watch ANYONE get brutally attacked? Something to think about.

Check back for more discussion on this topic.

Category: Seattle beating, Seattle beatings, Teenage violence, teens and violence | No Comments »
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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!

Category: Business Law, Right of publicity | No Comments »
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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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