Navigating Social Media Legal Risks

Robert McHale, Esq., is the founding member of R | McHale Law (rmchale.com), a full-service law firm whose corporate practice represents clients on a wide variety of IT and intellectual property law matters, including privacy and data security, trademark, copyright, trade secrets, technology licensing, and other proprietary protections. By leveraging his business instinct, technical insight, and legal experience, Robert helps companies develop legal strategies that best promote their business objectives. His areas of focus include general corporate law, business litigation, web/mobile applications, online marketing, new media, and Internet and e-commerce technology. Robert is a member of the Massachusetts bar and is admitted to practice before the U.S. District Court, District of Massachusetts. He is a graduate of St. John’s College (BA) and Boston University School of Law (JD). You can reach Robert at robert.mchale@rmchale.com and follow him on Twitter at @rmchalelaw.

Introduction 1

How This Book Is Organized

Who Should Use This Book?

Features of This Book

A Quick Note about U.S. Legal System

Legal Disclaimer

1 Social Media Promotion Law: Contests and Sweepstakes

Online Promotions

Sweepstakes Laws

Contest Laws

Lottery Laws

Potential Legal Issues Associated With Public Voting

Keeping Social Media Promotional Campaigns Legal

Online Promotions Outside the United States

Sweepstakes Versus Illegal Online Gambling

Platform-Specific Guidelines

LinkedIn

Google+

Twitter

Facebook

2 Online Endorsements and Testimonials: What Companies and Their Employees Can and Cannot Tweet, Blog, or Say

Fundamental Principles of Endorsements and Testimonials

Endorsement or Not?

Determining Liability

Making Necessary Disclosures

Hyperlinked Disclosures

General Rules for Disclosures

Disclosures in Social Media

Lessons Learned from FTC Investigative and Enforcement Actions

3 The [Mis]Use of Social Media in Pre-Employment Screening

The Fair Credit Reporting Act

Real-World Examples

FTC v. Social Intelligence Corp

FTC v. the Marketers of 6 Mobile Background Screening Apps

Robins v. Spokeo, Inc

4 Monitoring, Regulating, and Disciplining Employees Using Social Media

Employee Monitoring

Employer Regulation

Employee Discipline for Social Media Use

Ambulance Service Provider

Chicago Luxury Car Dealer

Advice Memoranda

Lawfully Disciplining Employees

5 Social Media in Litigation and E-Discovery: Risks and Rewards

E-Discovery of Social Media

The Stored Communications Act

Authenticating Social Networking Site Evidence at Trial

6 Managing the Legal Risks of User-Generated Content

Copyright in the Age of Social Media

Direct Infringement

Contributory Infringement

Vicarious Infringement

Digital Millennium Copyright Act

Defamation, Invasion of Privacy, and CDA Immunity

Limitations of CDA Immunity

7 The Law of Social Advertising

The FTC Act

Best Practices for Social Media Advertising

Section 43(a) of the Lanham Act

The CAN-SPAM Act of 2003

The Children’s Online Privacy Protection Act (COPPA)

COPPA Enforcement

Proposed Changes to COPPA

Summation

8 Trademark Protections from Brandjacking and Cybersquatting in Social Networks

Notable Cases of Brandjacking and Cybersquatting

Trademark Infringement Under the Lanham Act

The Anticybersquatting Consumer Protection Act (ACPA)

Post-Domain Path Names and the ACPA

Platform-Specific Trademark Enforcement Mechanisms

Twitter Policies

LinkedIn Policies

Facebook Policies

Uniform Domain Name Dispute Resolution

9 Balancing Gamification Legal Risks and Business Opportunities

Unfair and Deceptive Marketing Practices

FTC Guidelines on Endorsements

Legal Status of Virtual Goods

The Credit CARD Act of 2009

Other Little-Known Laws Relating to Virtual Currencies

Location-Based Services

Designing a Precise Geolocation Data Security Plan

10 Social Media’s Effect on Privacy and Security Compliance

Privacy Compliance

Security Compliance

11 Legal Guidelines for Developing Social Media Policies and Governance Models

Vital Corporate Social Media Policy Provisions

Recommended Social Media Marketing Policies

12 Looking Ahead at Social Media Business Opportunities, Expectations, and Challenges

A Table of Legal Authorities

B The Federal Trade Commission Act of 1914

C The Lanham Act—Section 43(a)

D The Anticybersquatting Consumer Protection Act (ACPA)

E Fair Credit Reporting Act (FCRA)

F Electronic Funds Transfer Act (EFTA)

G Children’s Online Privacy Protection Rule

H FTC’s Revised Guides Concerning Use of Endorsements and Testimonials in Advertising

I Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003

J The Copyright Act

K Online Copyright Infringement Liability Limitation Act (OCILLA)

L Computer Fraud and Abuse Act

M Electronic Communications Privacy Act

N National Labor Relations Act

O The Unlawful Internet Gambling Enforcement Act of 2006

P Communications Decency Act (CDA) of 1996