Social Media Law Today

admin | November 16, 2016

Can You Be Arrested or Sued for What You Do in Virtual Reality?

Ranked a “Top 100 Thought Leader” in “Augmented Reality” and “the Internet of Things” by Onalytica, Glen Gilmore, the author of this post, has been called a “futurist” by IBM. An international speaker and consultant, Gilmore is an adjunct instructor at the Rutgers University School of Business, Executive Programs. Although he is also an attorney at law, nothing in this post should be considered legal advice.

The reality is that you can be sued for what you do in virtual world. Whether you could be sued successfully, or possibly even be arrested, for your conduct in a virtual world would require a case-by-case analysis and a recognition that our law evolves.

Let me take this one step further and suggest that you can even be sued for helping create virtual world where others get hurt without their consent. “Really?” Really.

“Ok. Here we go. A whole new world of litigation launched by a lawyer!”

This isn’t about an over-litigious imagination. This is about enterprise risk minimization and the protection of traditional rights in a virtual world.

An injury that gives you the right to sue is classically defined as a “tort”, a legal wrong that contains: (1) the existence of a duty to protect others from harm, (2) the breach of that duty, (3) an injury to another, and the key element that that (4) injury was caused by the defendant’s (person being sued) breach of the duty.

If you have created a world in which someone else gets injured as a result of your failure to protect them from harm, where a duty to prevent such harm existed, you may be held liable (legally accountable – you may be successfully sued. If your conduct in a virtual world is prohibited as criminal in the real world, it is even possible that you could find yourself being charged criminally for what took place in virtual world.

Whether you create a virtual reality device or software, you could be liable for the harm caused by their participation in your virtual world.

A Few Virtual Cases You May Wish to Consider

A child is exposed to harmful conduct. This could consist of exposure to adult content – or worse. What measures did you take to prevent such harm and/or to obtain parental consent? Did the consent you obtain satisfy current law? What warnings did you have on your product or software? What safeguards did you provide? What warranties did you offer or could reasonably be implied (e.g., the product could be safely used for its intended purpose). Did you comply with COPPA (if you don’t know what this is, I’m guessing you didn’t)?
A player of your game is subjected to an unconsented physical assault. Many gamers enter a virtual world for a wide variety of adventures. They consent, either expressly or implicitly, by the very nature of the game.

What happens though when a consumer enters a virtual world, without having given express or implied consent to physical contact and is subject to inappropriate physical conduct?

“Pure silliness”, you may retort. Actually, the genesis of this post is another post written by a woman who shared her experience in being sexually assaulted in a virtual world. Read her post, then tell me what you think: My First Virtual Reality Groping.

Could someone be arrested for a sexual assault committed in a virtual world? What do you think? Could they? Should they? These are questions we must confront, sooner, rather than later.

Should we allow bullying or other forms of harassment in a virtual world without our consent? Education is moving online. Actually, it’s already moved online. According to Forbes , “More than 35 million people have enrolled in online courses in the last four years, and 2015 enrollments doubled from 2014.

Education in virtual reality is the next likely evolution from online courses. Google has already announced plans to bring virtual reality to one million school kids in the UK. Should we make an exception for bullying in virtual classrooms? If someone shoves our child – or worse – in a virtual world, they are likely to have the physical sensation of that contact. We should address bullying in the virtual world in the real world now. The same goes for other forms of harassment.

As virtual worlds become worlds we find ourselves in to attend courses for work or our children enter to attend school, we will want safeguards that protect us and those we care about. Think about it.

For virtual reality products and software, early complaints have focused on nausea induced by use of the devices. We have yet to hear whether the couple in Russia hit by a car while playing a virtual reality game in a parking lot plan to sue, but it is doubtful their case would get very far. Stories like that detract from the serious need to set some standards in a world in which very few rules exist.

Think what you will about the law and virtual worlds – but, think. The real world and virtual reality worlds are colliding. Questions of conduct, ethics and the law are boundless. Expect that just as we spend immense amounts of time on our mobile devices and in social networks, the same will happen with virtual reality as its products move to mass market. Unlike our current online experience, in virtual reality we – and our children – will even feel the physical contact from others. Are we ready?

Tell me what I’ve missed or have gotten wrong (right?). Please share a comment below if you’d like.

And if you’re interested in learning more about emerging technologies, please join me on Twitter:

@GlenGilmore and @NewTechLaw.

Category: Uncategorized |

admin | June 22, 2015

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Simply Pinning a Product to #Pinterest Could Violate the FTC Act

Although the writer of this post, Glen Gilmore, is an attorney, nothing in this post should be considered legal advice. If you have a question of law, please consult with an attorney from your jurisdiction.

For Want of Disclosure, a Pinterest Contest was Lost

In 2014, the Federal Trade Commission (FTC) caught the attention of the retail, marketing and advertising communities when it announced its decision not to pursue an enforcement action against a major retailer, Cole Haan, for a contest on the social media site, Pinterest, even though the regulatory authority found that the retailer had failed to provide adequate disclosure required under Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45.

Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, provides that “unfair or deceptive acts or practices in or affecting commerce…are…declared unlawful.” Applying this principle, the FTC requires the disclosure of a “material connection between a marketer and an endorser when their relationship is not otherwise apparent from the context of the communication that contains the endorsement.”

When Cole Haan crafted a Pinterest contest that encouraged users to share photos with the hashtag #WonderingSole, the FTC found that that particular hashtag would not alert other users that the photos were being shared as part of an incentivized, social media contest – a chance to win a $1,000 shopping spree.

In explaining its decision not to pursue an enforcement action, the FTC offered that it had not “previously publicly addressed whether entry into a contest is a form of material connection, nor have we explicitly addressed whether a pin on Pinterest may constitute an endorsement.”

Given this rationale for not pursuing an enforcement action, the FTC’s notice, in its updated social media guidance concerning “simply posting a picture of a product in social media” is one that sponsored bloggers, brands and marketers should listen to very carefully.

Simply Posting a Product Photo to Pinterest Could Trigger the Duty to Disclose

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Posing the question of whether a sponsored endorser would have to “say something positive” about a product for a post to be an deemed an endorsement covered by the FTC Act, the FTC answered:

“Simply posting a picture of a product in social media, such as on Pinterest, or a video of you using it could convey that you like and approve of the product. If it does, it’s an endorsement.”

This is an extremely important point the FTC is making: no words are needed to trigger the FTC Act’s duty to disclose. This is one big step for the world of social media marketing and is a big nod to the triumph of the visual web. (It is also another example of the FTC keeping pace with trends in the social media marketing space.)

Elaborating on the point, the FTC went on to say, “You don’t necessarily have to use words to convey a positive message. If your audience thinks that what you say or otherwise communicate about a product reflects your opinions or beliefs about the product, and you have a relationship with the company marketing the product, it’s an endorsement subject to the FTC Act.”

TAKEAWAYS?

Brands and marketers, be sure to inform your sponsored endorsers that their duty to disclose is triggered even by the sharing or pinning of a product belonging to the sponsor.

Bloggers, YouTubers, Viners, Instagrammers, don’t try and get around the FTC rules on disclosure…

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If a violation of this guidance occurs, there will be no free pass as the FTC has already provided its warning.

If you’d like to learn more about the topic of social media law, the following is a link to Amazon where you can order a copy of my book, (yes, I do get paid a royalty from the sale of the book!)

Social Media Law for Business

And if we’re not already connected, please join me on Twitter:

@GlenGilmore AND @SocialMediaLaw1

Category: Bloggers, FTC, Instagram, Pinterest, Social Media, Social Media Compliance, Social Media Law, Vloggers |

admin | June 22, 2015

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#Bloggers, Vloggers, Instagrammers Beware: FTC May Be Coming After You

Although the writer of this post, Glen Gilmore, is an attorney, nothing in this post should be considered legal advice. If you have a question of law, please consult with an attorney from your jurisdiction.

New Guidelines Warn Bloggers, Vloggers, Instagrammers… They May Become the Target of An FTC Action for Failing to Make Adequate Disclosures

In 2009, the FTC announced its first set of social media marketing guidelines. When those guidelines first appeared, the FTC stamped out a firestorm created by the fear that the FTC would be gunning for bloggers who might miss a nuance in some complicated regulation and get hit with a hefty fine as a consequence.

The FTC quieted the storm by emphasizing that the focus of its regulatory update was the brands that sponsor bloggers, so that they would instruct and police the bloggers they chose to sponsor. That was 2009.

“Action against an individual endorser, however, might be appropriate in certain circumstances.”

In 2015, the FTC has renewed its guidance for sponsored promotions (i.e., incentivized user content), reminding brands and marketing firms of the responsibilities they have in using new media for a marketing purpose: their duty to instruct and monitor and correct sponsored endorsers (bloggers, et al.).

Tucked away in those updated guidelines, however, is a single statement that should give bloggers pause:

“Action against an individual endorser…might be appropriate in certain circumstances.”

Is the FTC monitoring individual bloggers, Instagrammers, vloggers?

Posing that question in its guidelines, using the term, “endorser,” the FTC answered by saying, “Generally not, but if concerns about possible violations of the FTC Act come to our attention, we’ll evaluate them case by case.”

To the heart of the question, the FTC made it clear that action against an individual “endorser” may be on the horizon.

An “endorser”?

In the context of the FTC’s social media guidelines, that would be anyone posting sponsored content online, regardless of form or platform. Bloggers, vloggers, Instagrammers, Viners, etc.

Um, what should a sponsored blogger, Viner, Instagrammer do to stay out stay out of the FTC’s crosshairs?

Familiarizing yourself with the FTC’s guidelines would be a good start.

A few other things to know to lessen your risks as a sponsored _____________:

Always provide a clear and conspicuous disclosure that your post has been incentivized (as in, you got paid or something for free).
Use plain language in your disclosure.
A disclosure in your profile biography is generally insufficient disclosure.
A disclosure via a link or badge is insufficient disclosure.
Keep your disclosure close to your sponsored content; don’t hide it.
In a tweet, #Ad, at the beginning of your tweet might be viewed as a sufficient disclosure of sponsored content (it’s always a case-by-case review by the FTC).
Don’t think that because the compensation you received was small that you are not obliged to provide a disclosure.
Don’t think that because you returned the test car you were given that you don’t need to mention that you were given it for free for a week.
Including a disclosure in a single post does NOT satisfy your obligation to make disclosures in future posts.
Your one-time sponsorship experience may require you to make disclosures of an earlier sponsored relationship with a brand when you post about its products or services down the road.
Don’t exaggerate your experience: stick to the truth.

If you’d like to learn more about the topic of social media law, the following is a link to Amazon where you can order a copy of my book, (yes, I do get paid a royalty from the sale of the book!)

Social Media Law for Business

And if we’re not already connected on Twitter, please join me:

@GlenGilmore AND @SocialMediaLaw1

Category: Bloggers, Instagram, Social Media, Social Media Compliance, Social Media Law, Vloggers |

admin | June 21, 2015

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FTC: Businesses Should Provide Employees with Social Media Training

Although the writer of this post, Glen Gilmore, is an attorney at law, nothing in this post should be considered legal advice. If you have a question of law, please consult with an attorney from your jurisdiction.

Companies should establish “formal” social media training

“Employee advocacy,” empowering and encouraging employees to use social media to help promote a company’s brand in the social space, has become the fashion for some of the biggest companies. In a set of guidelines just released by the Federal Trade Commission (FTC), a regulatory authority charged with ensuring truth in advertising, employers are advised to “establish a formal program to remind employees” that they should “not post positive reviews online without clearly disclosing their relationship to the company.” The recommendation presupposes the existence of a company social media policy making this point as well.

Companies learning of an employee’s failure to disclose an employee relationship when endorsing a company service or product should take corrective measures

The FTC does not expect employers to monitor every employee’s social media postings. However,

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where an employer does learn that an employee has endorsed the company’s products or services without adequately disclosing the employee relationship, the FTC recommends that employers take specific corrective measures:

Remind the employee of the company policy requiring disclosure of the employee relationship anytime the employee posts online about company products or services.
Ask the employee to remove the review or edit the post to adequately disclose that they are employee.

Disclosing an employee relationship in a social media account profile is inadequate disclosure

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“Saying who your employer is in your social media profile does not meet the FTC’s definition of adequate disclosure.” A profile disclosure may not be seen in the course of a social media conversation. Someone reading a post may never go to the poster’s profile page and, therefore, miss the disclosure.

Additionally, the FTC notes that, “Many businesses are so diversified that readers might not realize that the products you’re talking about are sold by your company.”

What’s the big deal about employees just saying good things about their company?

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The FTC is concerned about protecting consumers from deceptive advertising. Knowing about material connections between an endorser and the brand being endorsed is important to help consumers make more informed evaluations of an endorsement. Failing to make adequate disclosures of relationships is likely to violate long-standing truth-in-advertising principles. The FTC has now made it clear that employers should help employees understand the rules with periodic, formal social media training.

If you’re interested in learning more about social media law, I have written a book on the topic (and, yes, I do get royalties!):

Social Media Law for Business

And, if we’re not already connected on Twitter, please join me there!

@GlenGilmore AND @SocialMediaLaw1

Category: Employee engagement, FTC, Social Media, Social Media Governance, Social Media Law, Social Media Policies |

admin | June 7, 2013

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10 Social Media Law & Governance Tips

1. Create a Social Media Corporate Governance Team. Social media marketing is central to business success. Social networks are where consumers now spend most of their time online. It is on social networks where they hear and share the peer recommendations that matter most. You owe it to your shareholders and to your customers to integrate social business into your corporate culture. A social media governance team is critical to making social media success achievable and sustainable within your organization.

Your social media governance team should reflect a cross section of your organization

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and it should become a center of excellence for your business. It should bring together diverse talent, including marketing, customer service, legal, human relations, to share in learning, establish best practices, and create benchmarks for excellence, while humanizing your brand and driving business results.

2. Establish/Update A Social Media Policy.

If your organization doesn’t have a social media policy, you are courting disaster

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as you are inviting even one employee to have the power to redefine your brand in one inadvertent or ill-conceived post.

If, on the other hand, your organization was an early adopter of social media (or at least an early adopter of a social media policy!), it is likely time to update your social media policy. In the past year, the National Labor Relations Board has rendered over a hundred decisions, many of them prompted by overly broad social media policies.

The law is finally catching up to the implications and technologies of social media.

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Your social media policy should reflect those changes and clarifications.

3. Establish a Social Media Communications Crisis Management Plan. Along the way, you will invariably have a crisis that will require you to muster your social media resources. Prepare for the crisis before it happens. This should include creating a response chart of who within your organization would be tasked with what and how they would be contacted, as most crises seem to happen after 5:00 p.m. or on a weekend. Have round-tables to identify the events most likely to trigger a communications crisis within your organization and then do some training exercises to run through how you charts and policies would work.

If you are a larger organizations, you likely already have crisis communications plans – they need to include social.

Knowing the mechanics of what to do if an employee has sent a mistweet from your corporate account (hint: don’t ignore it!) or what to do if your social network account has been hijacked are some of the scenarios you should review.

4. Take the Time to Learn the FTC’s Social Media Disclosure Guidelines. In 2009, the Federal Trade Commission, which characterizes itself as “the nation’s consumer protection agency”, updated its advertising endorsement guidelines to include social media, addressing the disclosure requirement for sponsored bloggers and those that sponsor them, along with a series of examples clarifying the new guidelines. Most marketers have never read them. Luckily for you, the FTC guidance has just been updated! Put it on your reading list!

Contrary to a large body of writing on the subject,

disclosure “tabs”, “buttons”, “links”, and profile disclosure litanies do not suffice…

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’s social media disclosure requirements. (Disclosures are required within the context of the social conversation.)

5. Provide Your Employees with Social Media Training. Most of your employees are using social media throughout the day, regardless of what your social media policy may say to the contrary. Get over it. Instead, give your employees the social media training they deserve so that when they are using social media their time spent there will become an asset to your business rather than a ticking bomb.

6. Create a Social Media Decision Tree. Though Pfizer tends to get the credit for the idea, it was actually the U.S. Air Force that developed a social media decision tree that Pfizer eventually adopted for its organization. Very simply, it’s a review of common social media scenarios and how employees should respond to them. It makes social media conduct a little easier to understand and more efficient.

7. Streamline Access to Compliance and Legal for Social Media.

Social media engagement is all about “real-time” conversation.

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It doesn’t mean your business needs to give an instant response to every online post or tweet, but it does mean that your company should be prepared to answer within a few short hours of a brand mention at most. Having a way to get answers from compliance or legal requires a new approach that dedicates a greater appreciation for the time sensitivity of responding to social network inquiries or comments. Work on a way to accomplish this.

8. Share Regular Updates on Social Media Best Practices.

As social media continues to evolve, so should your best practices

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and your sharing of information about those best practices. Being attentive to and sharing updated guidance from regulatory agencies should be part of your updates. (This is a task best assigned to your governance team with special input from legal.)

9. Monitor, Assess and Audit Your Social Media Activities. Even with the best social media policies and training, your company’s social networking activities should be monitored and assessed for excellence. This doesn’t mean that every tweet has to be a masterpiece, but that online social networking engagement is consistent with the brand and contributing to the building of trust, transparency and brand advocates. It is worth noting that many of the FTC’s social media-related settlements have included mandatory outside audits of social networking activities. Bringing an independent audit into the mix is good idea to help keep monitoring of social business activities as accurate as possible.

10. Cleary Define Who Owns Company-Related Social Network Accounts. One lingering legal question is the dastardly discussion of who really owns your Twitter account or your LinkedIn contacts, etc., etc. Very simply, it is subject of debate and litigation if it is not clearly defined and agreed upon between employers and employees or business partners. Dispel the ambiguity and legal uncertainty: make an agreement that covers this issue.

A written agreement outlining what is to happen with a social media account opened or operated for a business purpose by an employee on behalf of a business is something that should be expressly defined. Why? Because most now recognize that social media accounts often have a business value and, left undefined, issues of ownership are likely to arise when business partners or employees part ways.

What social media compliance issues do you find most challenging?

Category: Social Media Compliance, Social Media Governance, Social Media Law, Social Media Policies | Tags: Compliance, Glen Gilmore, Governance, Social Media Law

admin | November 14, 2011

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No Social Media Policy or Training? A Prescription for a Crisis.

In 2011, an medical doctor become one of the first physicians to be reprimanded and fined by a medical board for “inadvertently” sharing patient information in a Facebook post. Although the physician did not reveal the patient’s name or address, the medical board concluded that

the mere mention of “the nature” of a patient’s injury on Facebook triggered a violation

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as it allowed the patient’s identity by determined by “an unauthorized third party.”

The offending physician was hoping to use social media to help others understand the work of an emergency room physician, without revealing any personally identifiable patient information, by simply describing some of the cases she encountered in her rounds. The doctor understood that she could not mention a patient’s name or address without the informed consent of the patient and so she steered clear of any such mention. Nonetheless, a violation of patient confidentiality was found to have occurred all the same.

In a consent decree with the doctor, the Rhode Island state medical board concluded that although the physician had “no intention to reveal confidential patient information” and had deleted the posts as soon as she learned of the breach of confidentiality, she had engaged in “unprofessional conduct” by sharing information that allowed others to guess the identity of a patient from the injury that was described. The Board issued a formal reprimand and a fine of $500 in a consent decree with the doctor.

The doctor also resigned her privileges at the hospital over the incident. Remarkably, the hospital where the incident occurred had no social media policy or training, something that was not mentioned in the Board’s findings.

Amazingly, despite this early warning to the medical community, and many others which have followed, many medical centers today still do not provide social media training to their staff or for many that do, physicians are excused from that training.

Failing to provide a social media policy and training that includes the entire healthcare staff, from physicians to volunteers, is a prescription for a crisis at expense of patients and the healthcare community.