Facebook Antics and Your First Amendment Rights

Well, look who became one of the internet’s most-hated women. I introduce to you Lindsey Stone of Plymouth, MA, who thought it would be gut-busting hilarious to be “loud and disrespectful” in one of the nation’s most hallowed ground, The Arlington Cemetery.

After taking this fine photo, she decided to post it on Facebook at the beginning of November for all the world to see because, hey, isn’t mocking dead soldiers funny? “Whoa whoa whoa…wait,” Ms. Stone wrote. “This is just us, being…d-bags…challenging authority in general. Much like the pic posted the night before, of me smoking right next to a no smoking sign.

Well, it seems many thought there was a huge difference between a no smoking sign (probably in front of a 7-11) and a sign in a consecrated national cemetery duly reminding one of the blood and life that has been spent for your freedoms. As you can imagine, the photo went viral. A page called “Fire Lindsey Stone” was even created that quickly amassed several thousand “likes.” Ms. Stone was immediately put on unpaid leave by her employer and by Thanksgiving she was fired.

For the past week or so, many have cried fowl against Ms. Stone’s employer and have said that her behavior was protected by her First Amendment right to free speech. There have even been those that have said Ms. Stone’s employer was trampling on her Constitutional rights arguing that Ms. Stone should be able to say whatever she wants and no employer can do anything about it. Well, I’m not here to defend Ms. Stone’s behavior and, granted, it was probably not the smartest thing to post the photo for everyone to see, but those that are trying to defend Ms. Stone have somewhat of a misunderstanding of the application of the First Amendment.

Let’s look at what the First Amendment says regarding free speech, “Congress shall make no law…abridging the freedom of speech.” While originally applying to Congress’ law-making power, legal cases since the drafting of the Constitution have further interpreted this clause to apply to any federal, state, or local government. So, actions against free speech apply to the government only. Government is the entity that cannot punish someone for their speech.

So what does that mean for private employers? Well, generally (with some exceptions such as malicious or unequal acts) they can be free to fire an employee for the posting of inappropriate content online, whether it was done on or off the job. In the world of free market enterprise, this is a good thing. The Founders did not want to curtail a private entity’s power and ability to rid their company of someone that was damaging a brand or business reputation, or worse yet, leaking out important business data and trade secrets.  Ms. Stone definitely has the right to freedom of speech, but in this case that right should not shield her from her employer wanting to give her the ax.

Remember the old adage, if you fail to plan then you plan to fail. Businesses should always be prepared on how to deal with faux pas that may occur in social media and the internet. At Avalaunch Media we are experts in helping to protect your company from the pitfalls of social media misuse. For more information and to find out how you can start protecting your business, visit us at: http://avalaunchmedia.com/social-media-compliance.

KitchenAid Whips Up a Good Social Media Crisis Response

Last week, while the Presidential candidates were duking it out on stage in Colorado, another battle was waging behind the scenes on Twitter. During the debate, President Obama attempted to rebut Romney’s healthcare voucher program by analogizing a story from his dear, sweet grandmother’s life. Immediately, amongst the many people exercising their free speech rights on Twitter, someone posted:

What normally would have been passed off as a tasteless joke by some rude Tweeter, received immediate attention from all. Why?? Because of the small detail that the tweet came from a well known brand that many mothers and grandmothers use on a daily basis….KitchenAid. Uh Oh.

It was quickly discovered that the person writing the tweet accidentally did so from the KitchenAid account and not from their own personal account. While the tweet was only up for a short time, it was there long enough for others to see, respond, and even page capture the image (as seen above). I am assuming that this employee is no longer with KitchenAid and definitely should not be anywhere near social media. The reality is that issues similar to these can happen with any company at any time.

In this situation, it appears that for the sake of KitchenAid’s brand name, there was a happy ending. As shown below KithchenAid’s response was timely, appropriate, and a model for how a social media crisis should be handled.

Cynthia Soledad, Senior Director of KitchenAid Brand immediately took the reins, accepted full responsibility, explained the situation and apologized to everyone and the offended (Mr. Obama) personally. She then sent numerous tweets to news outlets and invited them to contact her for further information and a statement. I am not sure if KitchenAid had a formal Social Media Crisis Response Plan in place, but it appears that they had planned for and discussed what they would do if a situation such as this arose.

How would your company respond if something like this occurred? Have you discussed social media crisis situations with your managers and employees? What type of Social Media Policy do you have in place to help prevent something like this from happening? Have you provided safeguards and educated your employees sufficiently to deter these types of social media faux pas?

Remember the old adage, if you fail to plan then you plan to fail. At Avalaunch Media we are experts in helping to protect your company from the pitfalls of social media misuse. For more information and to find out how you can start protecting your business, visit us at: http://avalaunchmedia.com/social-media-compliance



Facebook Gives the FTC an Earful on Privacy

Privacy issues are all the rage lately when it comes to social media use on both a personal and professional level. Yet another issue has reared its head against Facebook.

The Federal Trade Commission (FTC) recently published a notice to seek public comments on proposed modifications to the Children’s Online Privacy Protection Rule (aka the “COPPA” Rule). For the past year or so the FTC has been leaning towards creating rules that further protect children from the online collection, use, or disclosure of their personal information. For full information regarding these changes, you can visit FTC’s webpage here. In short, the changes FTC has discussed would lead to a dramatic shift in how information is allowed to be collected from minors. This in turn could lead to revenue losses for current marketing and advertising platforms that rely on models using this type of information.

Facebook quickly responded with a 22 page Commentary that the new regulations would restrict the ability for minors to “like,” comment on, or recommend websites and services against minors under certain circumstances, thus infringing on minors’ constitutionally protected Free Speech rights. In a recent case, the Supreme Court once again reiterated these rights by stating that, “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.

Now it may seem that Facebook is doing all of this just to take advantage of children so they can hook them in as future users. However, to Facebook’s credit their response was filled with their strong belief in the importance of empowering parents to protect their own children online, reminding the FTC that Facebook has been a leader in promoting safety for minors aged 13-17. Additionally, Facebook reminded the FTC of the original intent of COPPA, which was “to enhance parental involvement in a child’s online activities…to protect the privacy of children” and to “preserve the interactivity of children’s experience on the Internet and…children’s access to information in this rich and valuable medium.” Facebook obviously feels these new regulations could thwart the goals and original intent of COPPA and stop children from fully participating in these valuable mediums.

It will be interesting to see how this will play out with the FTC and the direction they will go, especially in light of a recent legal case where a U.S. District judge found that a “like” is not considered protected speech under the First Amendment for anyone (that will be explored in a future post). What are your thoughts on Facebook’s response to the FTC?

David Mink recently presented on other current legal compliance issues at SMX East NYC (Hot Topics in Social Media and Internet Law). Check out the full presentation here:

Staffers Gone Wild – Protecting Your Business from Damaging Social Media Content

Social Media Policies
Caution: Follow Me At Your Own Risk

Recently, an episode of “Staffers Gone Wild” played out on the internet with the unbelievable tweets of government staff members being broadcast for all to see. Isn’t it comforting to know that your hard earned tax dollars are being spent to fund the watching of Nirvana videos or support drinking while on the job? I’m not here to talk about the politics of this behavior, as I will leave that up to the political pundits to comment on.

What I do want to talk about are some potential legal ramifications that exist in businesses with easy access to the thousands of open eyes and ears reading your posts and tweets. We all know that social media marketing, imaging, and messaging are extremely important in shaping your brand. It takes a lot of time and money to get others to see you as you want them to. However, with one simple tweet your whole plan and message can be compromised, leaving you open to liabilities and harming your brand. Additionally, there are a host of legal pitfalls awaiting you.

It is important to know that each of your employees using social media accounts can be potentially viewed as “agents” of your company. While the law recognizes various types and levels of agents, it has been generally defined as basically someone who is authorized to act for another and/or someone that the outside world would reasonably believe is working on behalf the company (each state has its own “agency” laws and a licensed attorney should be contacted to provide proper legal advice regarding your situation). Any employee tweeting or posting may potentially become a liability to you. Regarding a private (social media) account, employers are somewhat limited in controlling an employee’s personal posts. However, there may be an issue if employees are posting company-related information on their private accounts.

Regarding social media content, businesses need to be aware of laws that govern and limit what can be posted. One of the laws is the Federal Trade Commission’s truth-in-advertising rules, which require businesses to not make misleading, false, or deceptive claims in their advertisements. There are also many intellectual property and copyright laws governing what you can use for your own business without infringing on another company’s ownership rights. Additionally, defamation and harassment laws limit what can be said without invoking other types of legal action from companies or individuals.

So what are some things that you can do to help protect your business?

  1. Understand Your Legal Limits – Before employees can understand what information can and cannot be use online, those at the top need to understand first. Seek out those laws that affect your business and understand your legal limits. Of course, if there are any questions, consult a licensed attorney that can address your questions.
  2. Empower Your Employee Policy Manuals – In all of your employee policy manuals you should have clear and detailed policies regarding social media use, including who is and is not allowed to post content. When hiring 3rd parties to post content for you, be sure to have clear communications regarding what is allowed and prohibited. It is highly recommended that you hire a licensed attorney to review or write your policy manuals and to draft and review your employee contracts/agreements to minimize your legal risk.
  3. Train, Train, Train – Have immediate training with new employees and frequent follow-up training that communicates clearly what can and cannot be said online regarding your business. You should also train employees regarding the potential risks that can occur when using their private accounts, such as defamation, trade secret disclosure, etc.
  4. Monitor Content – Depending on the size of your business and the amount of content being generated, this may be a difficult one to accomplish. However, it is extremely important to know what information is going out to the public regarding your business. Have someone in your company that is knowledgeable of the risks to oversee posted content. If something detrimental does go out, the damage may already be done. However, damage control can be better executed the earlier damage is caught.
  5. Plan for the Disaster – No one likes think that something bad will happen to them. However, if damaging content does go out, do you have a plan in place? Depending on the harm of the content the plan can range from a quick apology, to reprimanding or firing an employee, to quickly consulting an attorney to defend yourself from legal action. Sit down with your staff and determine what detrimental scenarios can occur from detrimental content and put an action plan in place that can be quickly executed to handle any issues. It is also wise to consult an attorney to review your plans and ensure that proper protections are in place.

(NOTE: In any business, legal issues are not to be trifled with. This information is in no way meant to be construed as a legal opinion and/or as legal advice. The author has provided the information provided herein simply for informational purposes only. It is important to properly plan, prepare and protect yourself from legal issues by contacting a licensed attorney to obtain legal advice for your particular situation.)

About the author:

Shaine has always been fascinated with how people interact with each other and shape the world around them. The internet and social media has brought a whole new sphere in these communications and has produced a world our past would have never imagined possible. He is finishing his law degree and plans on being a licensed attorney by August 2012. He will continue helping businesses navigate around pitfalls and have the most success possible. (NOTE: Any information provided by Shaine is in no way meant to be a legal opinion and/or legal advice. It is important to contact a licensed attorney to obtain proper legal advice for your situation.)

Mediation, Arbitration, or Litigation?

As an attorney, I am often asked my opinion as to how people should go about resolving legal disputes.  This info-graphic created by Nielsen & Senior (a Utah law firm) does a good job of walking one through the pros and cons of the three legal dispute resolutions (mediation, arbitration, and litigation).  Now you know!

Mediation vs. Litigation

My WPN Interview – The FTC’s New Internet Endoresement Guidelines

Back in February I was asked to sit down with Mike McDonald of WebproNews to discuss the FTC’s new Internet endorsement guidelines. We also got into some of the new state “privacy laws” being passed (by Connecticut, Massachusetts, and Nevada) requiring encryption of sensitive personal data and more informative privacy policies.

I haven’t heard anything from the crew at WPN  since our interview, but woke up today to a picture text message from Mat Siltala today of my face on the video homepage of WPN (see http://videos.webpronews.com/).  Thanks Mat!

David Mink

It appears that the production crew has added in some ancillary video and written a nice summary of our  interview. Feel free to check it out – David Mink on FTC Guidelines!

Watch the video here:

New .co top level domain will soon be available!

As you know, “co” is the standard abbreviation for company and .co will soon be available as a top level domain (“TLD”)! Up until now, this TLD has only been available within Colombia as the country’s ‘code’. This new TLD will provide a big traffic opportunity for business owners and search marketers as .co is a very common misspelling of .com.

Dates for registration

From April 26 to June 10 registered trademark owners will have the exclusive ability to register the new .co TLD for their registered trademark. (Needless to say, if you own a protected term you will certainly want to register it during this period!) After that protected period general public registration of .co TLD’s will begin in July.


The .co opportunity = additional traffic and brand management.
The .co risk = a cybersquatter registering your company’s trade name or marks before your do.
The goal = securing your company’s .co opportunity.

Good luck!

SMX West Session Notes: Legally Speaking

Follow me on Twitter for micro updates: @atraine.

Legally Speaking: Recent Legal News About Search – What’s up with legal issues and search engines? That’s what this session is about – filling you in on the always changing developments. From click fraud to copyright to privacy, this session will hit all the major areas that are seeing legal action. Sit back – court is in session!

Moderator: Sarah Bird, General Counsel, SEOmoz.org, Inc.

Q&A Moderator: Barry Smyth, Director, Search Strategies


Travis Crabtree, Member, Looper Reed & McGraw, P.C.
Eric Goldman, Professor, Santa Clara University School of Law
David Mink, Chief Legal Counsel for Dream Systems Media, Dream Systems Media

Travis Crabtree Speaking at SMX
Travis Crabtree Speaking at SMX

Clarke Walton, Attorney-at-Law, Walton Law Firm


Travis Crabtree, Member, Looper Reed & McGraw, P.C.
Topic: Trademark Law for Internet Marketing

To infringe you need to use their trademark in commerce.  That means in connection with a sale.

Consumer Confusion Factors:

  1. The strength of the mark.
  2. The proximity of the goods.
  3. The similarity of the marks.
  4. Evidence of actual confusion.

Cases Reviewed:

  1. Brooks vs. Field
  2. Google vs. American Blinds Keywords Case
    1. Use is a factor within keyword purchasing ads that shows use pursuant to pushing the case to trial.
  3. 1-800-Contacts case
  4. Geico vs. Google
  5. Izitron Case (not sure on spelling)

The European stance on trademark infrigement dealing with internet law is much stronger.  They take much more action over seas.

Interesting case that has recently come about is American Airlines vs. Google.  Google settled outside of court with confidential terms.  American Airlines just filed against Yahoo as well and this case is still pending in the 5th circuit in California.

David Mink, Chief Legal Counsel for Dream Systems Media, Dream Systems Media
Topic: Developments in Privacy Law

Hypothetical: your employee loses their laptop on the way home from a business trip to Boston in 2010.  What do you do now?

David Mink speaking at SMX
David Mink, CLO Dream Systems Media, speaking at SMX

The answer will probably depend on how cavalier this employee was: did they encrypt their laptop, did they use a password, is the file encrypted?

Legal Problems:

  1. Over 40 states now have security breach statutes?
  2. Mass. law makes it illegal to store data that is not encrypted, has to be sensitive personal information.

What is sensitive personal information (SPI): This is a persons name associated with other personal information such as their social security number, credit card number, etc.

Mass. Law has many stipulations you must follow to be ensured safety from law.  The law is long.  Dave gave some synopsis, but asked that you review the law.

So what happens if you break the law: nobody really knows because there is no case decisions on this to date.  Most likely the real risk will be a fine and damage to your company brand and image.

“It takes many good deeds to build a good reputation, and only one bad one to lose it.” Benjamin Franklin.

Privacy is a really hot topic right now and focusing on protecting identity theft is a major focus from a government level right now.  Mass. law, Nevada law, etc.  There is a new Gov. agency dedicated to specifically this and overseeing the transfer of SPI.

Clarke Walton, Attorney-at-Law, Walton Law Firm
Topic: ICANN Updates for 2009 and New GTLDs

Clarke Walton Speaking at SMX
Clarke Walton Speaking at SMX

What is a GTLD: Generic Top Level Domain
Includes: .com, .net, .org, .edu, .cat, .biz, .info, .asia, .post, etc.  These are different than country code TLDs.  Possible new GTLDs could include: .hotel, .law, .sex, .vegas, .nyc, .google, .ebay, .facebook, etc.

How to get a new GTLD going for you or your company, as ICANN is now opening the process to get approved for a GTLD.  ICANN is creating an application process.  This will be opening up during the last quarter of 2009.

Interesting Issues:

  1. Applicant has to show community support to get it.
  2. Morality + Public Order…is .sex going to be ok?
  3. Possible relaxation of registrar/registry relationship.
  4. Same entity ownership may be allowed for new GTLDs.
  5. Is there a possibility of trademark infriction when you apply for your GTLD.  There will be costs associated with that, like if Yahoo applies for a .google then Google has to object and bear the costs of that objection.

This possible objection process is being referred to as the ICANN Stimulus Plan.  The application fee is $185,000.  You pay annual fees of $75,000 and/or 5% of revenue.  You must have insurance and financial reserves to show you can carry the domain for years ongoing if your business fails.  Cost for application is estimated to be around 1mm all said and done.

Question and Answer Period

Q: What will prevent merchants from creating denyability by stating, it wasn’t us doing that, it was our affiliate?
A: Will depend on the statute in place in that location and it’s obviously not that easy to just say, hey it wasn’t us and if the affiliate is no longer in business or doesn’t have any money, then they will go off the advertiser.

Q: Does Mass. Law apply to portable back up drives, etc.
A: As long as the device is portable, you need to encrypt is as the statute language specifies devices that are portable.

Do you use social media sites? How does that effect your privacy rights?

The question is: Do individuals who post personal information on publicly available Web sites have a reasonable expectation of privacy in their identity? This same question was asked earlier this year in Sandler v. Calcagni, a case out of the District Court of Maine.

The facts condensed

Two high school friends/cheerleaders have a falling out that turns nasty. Their bickering leads to school suspensions, criminal mischief conviction, and eventually Calcagni enters a consent degree for a civil hate crime prosecution.

Calcagni’s parents believe their daughter was wronged so they launch a media campaign, which involved writing and publishing the book through Booksurge, to try and right the wrong. The book contained private information about Sandler.

Sandler sues Calcagni and a few others including Booksurge for defamation, privacy invasion, etc.

–Today I will only address Booksurge’s motion for summary judgment, which is simply their effort to get out of the lawsuit before it goes to trial–

The ruling

The District Court of Maine held that Sandler’s invasion of privacy claim was negated because she had posted the same “private information” on her publicly accessible MySpace page. The plaintiff had admitted on MySpace that she had sought psychological help. The court notes that this admission was not only public, but that she obviously did not consider disclosure of these facts to be highly offensive.

Take away lesson

The court’s ruling here could mean that people who post private details about their lives on publicly accessible Web sites (aka social media sites) might be precluded from successfully bringing claims for ‘expectation of privacy’ in those already posted details.

Policing and preventing copyright violations on the Internet

Last night, DSM had the unfortunate experience of learning that an independent contractor we were using for content creation was allegedly pirating other writer’s work. This incident has caused me to spend some time training the DSM staff as to what they can do to both prevent copyright violations and to police intellectual property use on the Internet. I thought I would pass on some of the tips I have shared with them. Let’s start with a short and very incomplete copyright tutorial.


What is a copyright? It is an intellectual property protection for certain “expressive” works, including: music, art, poetry, writing, movies, and much more. In order for the work to be copyrighted the following criteria must be met, the work must:
1. Be original
2. Result from a creative effort on behalf of the author, artist, or originator
3. Be in a physical form, or a “tangible medium of expression”

Some things cannot be copyright protected, including:
1. Anything that is fact, including history, science, current news, and other factual information
2. A person’s ideas or thoughts. Ideas must be expressed in tangible form in order to be protected

However, remember that the way in which these things are expressed – such as an editorial about a news event – can be protected.

Generally speaking the person who creates a work possesses the copyright (this is called the Creator Rule), unless:
1. The work is sold with the copyright
2. An employee created the work during employment
3. The work is created on a “made for hire” basis
4. The work was a collaboration between multiple people, in which case a joint copyright is held

The copyright owner maintains the following bundle of rights:
Distribution: The owner can sell or distribute copies of the work
Reproduction: The owner can make copies of the work
Derivative works: The owner can create new works that are adapted from or based on the original work
Performance rights: The owner can perform or display the work publicly

Copyrights last for quite a long time, in fact protected works created after 1977 are under copyright protection for the full life of the copyright owner plus 70 years. If the protected works were created as part of a “work for hire” contract the work is protected for 95 years from first publication or 120 years from creation.
If you have copyright in a work, you should register the copyright with the US Copyright Office. Here are several reasons to register a copyright:
1. When a copyright is registered and notice is posted on the work, the chance of winning a copyright infringement lawsuit is greatly increased.
2. A copyright infringement lawsuit can only be filed when the copyright is registered with the U.S. Copyright Office.
3. Timely registration of a copyright shows validity in the copyright, and allows copyright owners to recover up to $150,000 without showing monetary damages if a copyright infringement suit is successful.
To register a copyright, follow these steps:
1. Complete and submit the required form for your type of protected work. Different forms are used for different work types.
2. Submit one to two samples of your protected work with the U.S. Copyright Office.
3. Pay the registration fee, which is currently $45 per work.
Use a valid copyright notice. Displaying notice of copyright protection can help to keep potential infringers from illegally using the protected work. In many cases, it may also encourage the interesting party to contact the copyright own to seek permission for use of the work.
Lastly, here are a few tips for preventing copyright violations and policing intellectual property use on the Internet:
If you hire an independent contractor to do any content creation for you, make sure they have signed an agreement which includes an indemnification clause. The purpose of an indemnification clause is to ensure that the party agrees to pay for any financial loss that you incur as a result of his/her intellectual property violations. Here is sample indemnification language from one of DSM’s contracts:
“You agree to indemnify, defend, and hold DSM harmless against any claims brought against DSM, which claims are brought against DSM upon allegations that the work you provided DSM violated another company or individual’s intellectual property…”

Before you publish any text based work it is a good practice to select several sentences from within that work for which you will do a Google search within quotation marks. An example would look like this (the text I am using was pulled from Andrew’s post earlier today):

“Choosing a great domain name can be difficult to do, especially when so many are taken already. This domain name will most likely be your company name so that adds to the importance of this name.”

As you know, a search strand within quotation marks will pull only results that feature the exact same search strand, thereby signaling that there is a decent chance that this text does not violate someone else’s copyright.

Finally, if you produce a lot of valuable content and would like to ensure that it is not being used without your permission, you may want to consider investing in a digital technology program designed to monitor the Internet usage of your content. For example, many of you have heard of “digital watermarking” programs, which allow intellectual property owners to track the online distribution and access to their intellectual property.