Social Media Law Update : Intellectual Property, Advertising and Video Game Law: Sheppard Mullin Lawyers & Attorneys

By Michelle Sherman

The Federal Trade Commission ("FTC") is working hard to make sure consumers are not being misled about how websites and social networking sites are using their personal information. Companies that do not follow their own privacy policies are finding themselves the subject of FTC complaints.  It is therefore even more important for businesses to review and update their "privacy policy," "terms of use," and other legal agreements on their websites. This review should also include any company apps.

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By Michelle Sherman

The wide dissemination of news on the Internet through “new media” online sites such as the Huffington Post, well recognized blogs like the Drudge Report, or social media sites such as Twitter is changing how we get our news today. The Internet is also making it harder for someone to be the first and original source for allegations of corporate malfeasance that can be the basis for a whistleblower or false claims action. In other words, businesses who are defending themselves against a whistleblower or qui tam (false claims) plaintiff (collectively, “whistleblower”) should exhaustively search the Internet for evidence showing that the whistleblower is not the “original source” of the information.

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By Michelle Sherman

Digital media theft or piracy, as it is more commonly called, is a serious and pervasive problem with countries taking different approaches to address it. It is estimated that copyright piracy and the sale of counterfeit goods costs US creators and producers billions of dollars every year.

Click here to read the full article as published in the Journal of Internet Law.

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By Michelle Sherman

Agatha Christie had a novel take on invention being the mother of necessity. She disagreed and said, “[I]nvention, in my opinion, arises directly from idleness, possibly also from laziness. To save oneself trouble.” She may have been onto something when you think about businesses that are turning to outside vendors to research employees and job candidates for them. Whether or not these outside vendors are the best solution, however, remains to be seen.

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By Michelle Sherman

If your company adopted a social media policy more than two months ago, or, if your company modeled its policy after one of the sample policies available on the Internet, then there is a very good chance that your social media policy is overbroad and needs to be revised. For example, if your social media policy prohibits social media activity that disparages the company without making it very clear that this prohibition does not include protected concerted activity (as more fully described below), then your policy needs to be amended.

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By Michelle Sherman

The exponential growth of the internet is also seeing an increase in the number of legal actions against “John Doe” defendants. John Doe is really synonymous with an anonymous speaker (blogger), who may be liable for claims such as copyright infringement, trademark infringement, or defamation. Fortunately, there is guidance from the courts so your company can increase its chances of identifying these anonymous bloggers, if necessary.
 

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By Michelle Sherman

Companies would be legally remiss not to add a social media component to their corporate compliance and ethics program. As we have seen and reported on, agencies such as FINRA, the FTC, and the NLRB are bringing complaints against companies arising from their social media activity or employee related activity, thus, highlighting the need for companies to demonstrate that they are exercising due diligence to promote ethical conduct and prevent criminal conduct in the context of social media activity [e.g. Federal Sentencing Guidelines, § 8B2.1].
 

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By Michelle Sherman

A sound social media governance program means more than having a social media policy, or updating your document retention policy to include social media activity. It may also mean updating your Sarbanes-Oxley Act (“SOX”) compliance program to ensure that your company is complying with Section 409. Section 409 of SOX requires companies to disclose material changes in their financial conditions or operations, by updating information on your social media networking sites. Credit Suisse Securities was fined $4.5 million by FINRA last month, and one of the reasons for the fine was failing to update its website with relevant and accurate disclosures concerning the performance of some residential subprime mortgage securitizations (“RMBS”).
 

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By Michelle Sherman

Many businesses are still coasting along enjoying the marketing advantages of social media without making sure they have a good compliance program in place. For every company with a Facebook fan page or Twitter account roughly 65 percent would admit they do not have a social media policy. For companies with a social media policy, many of those policies have been lifted from online samples that may be over broad, and include provisions that have been challenged with some success in court.
 

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