The U.S. District Court for the Southern District of New York adressed the issue of whether or not third parties are granted a license to reuse content after it has been posted to Twitter. In Agence France-Presse v. Morel (S.D.N.Y., No. 1:10-cv-02730-AJN-MHD, 1/13/13), Morel, a photojournalist, had posted photos he took of the aftermath of the 2010 Haitian earthquake on Twitter. Agence France-Presse republished those photos without consent from Morel. The court rejected the argument by Agence France-Presse that Twitter’s terms and conditions of service created a license for the use of content for which all third parties are beneficiaries. The court held that a third party can only benefit from a contract if the terms of the contract “clearly manifest” such intent.

Twitter’s terms and conditions state:

Peter Brody and Mariel Goetz have published a great article in Bloomberg BNA about the Ten Things You Need to Know About Social Media and Intellectual Property in 2013. They list the 10 things as:
1.Be on the lookout for the next Pinterest.
2.Determine the level of social media interactivity that works best for you and your business.
3.Determine an appropriate policy regarding ownership of user generated content.
4.Proactively address ownership and use of business-related social media accounts by employees.

In early February, I was interviewed by Investor’s Business Daily for an article titled “Facebook Keeps User Data Private After Death” written by Tony Kontzer. The article focuses on who is entitled to your social media postings after your death. This is uncharted territory as digital assets are considered to be part of the estate of the deceased, but what happens when social media sites such as Facebook and LinkedIn are involved. To read the

Although it shouldn’t be news to advertisers that they need to include a disclosure, even on mobile phones and sites such as Pinterest and Twitter, the FTC realized that there was a gap due to advancing technology and issued a report last week to provide additional guidance to advertisers for short-form ads on social media like Twitter and Facebook as well as mobile platforms. The new rule “takes into account the expanding use of smartphones with small screens and the rise of social-media marketing,” the agency said in a statement. “The updated guidance emphasizes that consumer protection laws apply equally to marketers across all mediums.”

The Federal Trade Agency just released new rules under the Children’s Online Privacy Protection Act (COPPA) to address the advances in social media since the COPPA was enacted in 1998. According to Jim Halpert, a partner at DLA Piper, as quoted in Corporate Counsel, “The world of COPPA compliance has just gotten considerably bigger… The major thing the FTC was concerned about was different forms of tracking children online that didn’t involve collecting their names and addresses.”

The COPPA Rule puts certain requirements in place for businesses that operate websites or mobile apps that are directed to children under the age of 13 or if the provider has actual knowledge that they are collecting personal information online from children under the age of 13. What didn’t change with the FTC’s new COPPA rules? Businesses still have to give notice to parents and get their verifiable consent before collecting, using, or disclosing personal information from children under the age of 13. Businesses must still keep the children’s information secure and the website or mobile app provide can’t make a child provide more personal information than necessary in order to participate in activities on the website or app.

What did the FTC change with the new COPPA rules?

Do you ask your clients if they know what happens to their digital assets once they die? Do you know what happens to your own digital assets when you die? Digital assets are those which exist in a solely electronic and non-tangible manner such as email, digital photos, online banking accounts and records, media libraries (such as iTunes), and social media accounts such as Facebook, LinkedIn, and YouTube, as well as the content posted on the accounts. In this age of social media, online banking and bill paying services, it is critical that your clients think about what will happen to these digital assets and plan ahead for how to handle them after their passing.

Most states, including Washington, have not passed laws (yet) to address digital assets. The states that have passed laws mostly address email, and even those laws vary from state to state. But digital assets include so much more than just email, and most clients would likely feel differently about how to handle different types of online accounts. Some accounts clients might want to have canceled immediately; others, such as digital photo albums, clients may want to survive and be transferred to a
family member.

Clearly Reed Hastings, CEO of Netflix, didn’t read the earlier post Cautionary Tale: CFO Fired for Social Media Use. In July, Hastings posted on his Faecbook page and on the company blog that people had watched over one billion hours of the company’s video’s in the previous month. Netflix stock soared on that news. The SEC took note and was not pleased. According to the SEC, this sort of news should have been shared in a more traditional fashion such as a press release. By sharing it on Facebook and on the company blog, the news was given out to “fans” which gave those people insider knowledge. But, argument is now being made that the news was public once it was shared on the Internet since it could easily be forwarded, shared and reported. The SEC may find itself in a position of having to update its rules to take into account the new ways information is shared.

For more information on social media, blogging and all other commercial transaction issues, please contact Chris Pothering at cpothering@scblaw.com.

Are you friends with your primary care physician on Facebook? Do you follow your doctor on Twitter? Do you ask for medical advice from your doctor online? If you do ask for medical advice, have you ever worried about whether or not your private medical information may or may not be actually held confidential from others? What about that HIPAA form you are always asked to sign at the doctor’s office? Are HIPAA guidelines being followed by doctor’s using social media to interact with their patients online?

According to an article in The SF Gate, Ryan Greysen, an assistant clinical professor of medicine at UCSF, surveyed 48 state medical boards that license and discipline doctors. Greysen found that 44 of them received reports of violations of online professionalism, including violations of improper contact with patients, inappropriately giving diagnoses and misrepresentation of one’s credentials. The disciplinary measures ranged from limiting or suspending physicians’ licenses to revoking them.

Doctors need to remember that, like lawyers, they have a higher level of care and privacy owed to their patients. The Federation of State Medical Boards’ Special Committee on Ethics and Professionalism was asked in 2011 to provide guidelines on the use of social media:

Careful lawyers should assume that everything they post on a social networking platform is going to be read by “a 62-year-old male judge without a sense of humor.” So states Simon Chester, lawyer, blogger and technology expert, in a recent article in U.S. Law Week.

Not so long ago, few law firms used social media. Most law firms banned its use entirely. Now, however, young lawyers and staff are using social media – and so are many senior lawyers. This shift has led to a fundamental change in the ways people communicate with each other, both personally and professionally. It has also changed the way we need to balance the opportunities offered by emerging social media tools with long-standing legal professional responsibilities.

Have you done your social media estate planning? If you have a social media profiles set up, you should create a plan for how you want those profiles handled after your death. Just like your real life identity, you now need to plan for the handling and wrapping up the affairs of your online identity.

The USA.gov blog post How and Why You Should Write a Social Media Will advises that you appoint someone that you trust and provide them with your passwords and log-ins and instructions for what to do with your online accounts. This person will essentially act as your online executor and will be responsible for closing your email accounts, social media profiles and blogs after you die.

The USA.gov blog recommends the following actions to help you write your social media will: