Making It Legal:

From the BlawgIt blog of Iowa patent attorney Brent Trout comes this helpful post on the legal pitfalls of social networking. Many entrepreneurial bloggers use their blogs as an opportunity for product reviews. What’s not always known is that bloggers occasionally get paid for those product reviews. It make a difference, doesn’t it–knowing whether a review comes from someone completely objective or a paid promoter? If getting paid for your reviews were part of your business model, don’t you think that would color the kind of review you gave?

As Trout points out, the Federal Trade Commission has made it clear that if a paid endorsement “might materially affect the weight or credibility of the endorsement,” such endorsement must be fully disclosed. Trout goes on to talk about what constitutes “disclosure” and how you can be guided accordingly.

You may not know it by name, but you’ve probably experienced it before. You order a book from a website such as Amazon.com and then get a little popup ad. Or you’re redirected to a page that says, “Nina, if you liked Where the Wild Things Are, you might also like these others books/CDs, etc. . . . ” That’s called “behavioral targeting.” It’s the way that websites collect personal information about you and your preferences and use that information to try to sell you more stuff along the lines of what you already bought. When I’m on a shopping spree and eager to read or listen to something new, I love that feature. How convenient!

But when I think about how my private, personal preferences can so easily become known and shared with others, it’s more than a little disturbing. What if, instead of Where the Wild Things Are, my preferences ran more along the lines of Debbie Does Dallas? Would I really want that known? (Just for giggles, I checked on Amazon.com and yes, you can buy it there!)

There’s a delicate balance between privacy rights and free speech, as Wendy Davis of Just an Online Minute pointed out yesterday. Courts have tended to give less protection to “commercial speech,” which is how ads tend to be classified. But in today’s e-commerce world, does behavioral targeting go further in violating your privacy rights than, say, getting a cold call for investment products during dinnertime? Should you have a right to opt out of these kinds of ads? The Federal Trade Commission is now looking at this issue, so we’ll see where the legal restrictions ultimately fall.

Many thanks again to Lena West of Tech Forward for the tip!

… That is, if you’re the one being infringed.

Disclaimer: I am neither advocating that you rip off anyone else’s content nor recommending that you sit idly by should it happen to you. But sometimes, it can work to your advantage… especially if the people using it are “fans,” where at least some form of atttribution is made to you.

That’s what Sandra Aistars, Time Warner Cable’s assistant general counsel, intimated at a recent digital rights management conference in New York City, reported in Mediapost’s Just an Online Minute. Especially when the use of the content is in the form of parody or other fair use or commentary, it may be in your interest to refrain from bringing an infringement lawsuit if the restraint helps foster a more robust fan base.

But it’s not always easy to tell which uses will be to your benefit. So make sure you consult with an attorney who knows this area.

As my mother is fond of saying, “Watch what you wish for–you may get it.” That certainly applies to the ways in which technology has made an impact on our workplaces. On the one hand, it has opened up a wonderful world of flexibility, new business arrangements and ease of automation. On the other, it has opened up a hornet’s nest of new ways for employers to get stung in employee-related lawsuits.

Just think of the ways that computers and technology have changed the way we work: e-mail, voice mail, conference calling, videoconferencing, PDAs, smartphones, Treos, BlackBerrys, iPhones, internet, intranet, blogs, message boards, Facebook, Twitter, MySpace, networks, ASPs… and the list goes on.

So does the list of legal issues that have emerged as a result:

• Employees freely copying what they see on the internet;
• Posting of inappropriate or offensive content on company bulletin boards or blogs;
• Discrimination in hiring employees through internet job postings;
• Badmouthing a company on personal blogs;
• Using e-mail to discriminate against or to harass fellow employees;
• Employees’ expectations of privacy on their office computers or in their e-mail;
• Requirements for backing up electronic communciations in the event of litigation; and
• Electronic communications policies.

It’s as if you took a bunch of rambunctious children and gave them potentially dangerous toys to play with. If you don’t show them how to use them properly, someone (probably you or your company) will get hurt. If you have employees, speak to an attorney to get guidance on how to handle these issues.

From the department of “what part of ‘don’t contact me’ do you not understand?” comes a recent New York case, People v. Fernino [2008 WL 382348 (N.Y.City Crim.Ct. February 13, 2008), for those of you who want the citation]. Thanks to Evan Brown and his Internet Cases blog for pointing it out.

Here’s the history: A New York family court issued an order of protection against Melissa Fernino, which prohibited her from having any contact with Sandra Delgrosso and her two underage daughters. [Apparently, Delgrosso had had a romantic liaison with Fernino’s father–one can only wonder how badly that went south to end up in restraining orders!]. Fernino then added Delgrosso as a “friend” on MySpace.

The court was not amused. Even though Delgrosso could have denied the request, that wasn’t the point. The point is that Fernino made contact–even if indirectly.

In many of these social networking sites, it’s thought that “the one with the most friends wins.” But what’s the real quality of those friendships?

Is the rise of Web 2.0 the beginning of the end for personal privacy? While only time will tell, there are plenty of pundits crying “the sky is falling!” …and perhaps with good reason. Never before has it been so easy to circulate private information. Never before have the intimate details of so many people’s lives been vunerable to a single keystroke.

So when a group of online experts meets–as it did at the Legal Futures Conference at Stanford University in Palo Alto, California–to evaluate the ways that Web 2.0 and new technology are making us more vulnerable to privacy intrusions, it’s worth hearing how they’re thinking.

Jennifer Granick, civil liberties director at the Electronic Frontier Foundation, acknowledged that she finds the location-based technology in her iPhone very convenient when she’s trying to avoid traffic congestion, but she doesn’t want the government to be able to use that technology to track her down.

Can we have the technology but prevent some uses of it and not others?

In a recent round of litigation concerning online content hosts, the online complaint site Ripoff Report won a defamation (and trademark) lawsuit filed in Florida by a Colorado company.

According to the site, the Ripoff Report is a worldwide consumer reporting website and publication by consumers, for consumers, to file and document complaints about companies or individuals. Apparently, it provides users with pre-programmed categories, or labels, for classifying their posts. The defendant, Whitney Information Network, became riled when it discovered that the posts complaining about it had been tagged with labels such as “corrupt companies” and “false TV advertising,” in addition to the more banal (and benign) “seminar programs” and “trade schools.”

The Florida federal district court relied on Section 230 of the federal Communications Decency Act, which protects content hosts from liability for the comments and information placed on the site by users. Even though the Ripoff Report site provided the “categories,” the court found that that was not sufficient to move it out of the realm of mere host (where it is protected) and into the realm of content provider (where it would be more vulnerable).

To learn more about the case, see Wendy Davis’s article in Online Media Daily.

With more and more people (especially Gen Yers and Millenials) posting their personal information on the internet, it seems a handy place for employers to go to scoop up background information on prospective hires. After all, by publishing this information on their blogs, Facebook pages and MySpace profiles, the potential employees can hardly claim that this information is private. I mean, if you’re too dumb to know that unless specifically encrypted, your blog is totally open to computer-connected Planet Earth, you’re too dumb to be hired, right? So whatever an employer finds is fair game, yes?

Not exactly. As with other hiring and screening processes, unless an employer utilizes them fairly–and handles the information received objectively across the board–an employer could be held liable for discriminatory hiring practices.

Let’s say that Jarhead Corp. is screening two applicants: One is a white male, who has posted a photo with fraternity buddies, holding beers; the other is a Chinese female, whose photo shows her with close friends at an LGBT (lesbian, gay, bisexual, transgender) rally, revealing pierced navel and tattoos. Can an employer honestly say that the LGBT context and race won’t come into play? Similarly, can an employer document that the same degree and level of searching on the internet is done about all candidates? Or is it only to dig up dirt about female ones to find a reason not to hire them?

If an employer does not have a set policy (or list of steps) for the ways it goes about evaluating its employee candidates, it can leave itself open to a world of hurt. That is particularly true because the nexus between social media and law is so new, and there’s not a lot of case law yet to give employers guidance as to how these kinds of issues will be received by courts and legislators. Best to consult an employment attorney when developing a hiring strategy to make sure that the tactics you use don’t run afoul of the law.

Forwarded to me by sister Entrepreneur blogger, Lena West, was this curious tidbit from MediaPost, about a case before a European court. It seems that “Internet service providers in the EU need not disclose the names of suspected file-sharers.” This is in stark contrast to the latitude given the Recording Industry Association of America to subpoena suspected file-sharers.

Why does that matter? Because culturally, in Europe, privacy rights are far stronger than they are in the U.S. So strong, in fact, that a ripple effect from this case could be that an IP address would be regarded as personal data (at least in Europe).

This is a healthy reminder of a couple of important things. First, that U.S. laws and perspectives on business, commerce and privacy are not necessarily shared worldwide. The U.S. may have taken the lead in many aspects of internet use and protocol, but attitudes are still somewhat territorial. The global availability of information does not equate to a globally unified perspective on how it should be used. Second, within the U.S. itself, there are differences in how issues of state laws on privacy (among other things) are handled. That’s why it’s so important to be sure that you consult an attorney who understands the laws of the state in which you are doing business. Also, your terms and conditions should name your state as the place where (and the law) where disputes will be handled. Otherwise, you risk having to consult attorneys in every state in which you have a customer to make sure you have not run afoul of their laws.

I just returned from Miami Beach, where I spoke on the subject of “Social Media for Corporate Executives” with fellow (sister?) Entrepreneur blogger Lena West. [Check out her Tech Forward blog if you haven’t already.]

Blogging is fun, blogging is new, blogging is strategic, and blogging raises hairs on the backs of the necks of attorneys, who see blogging as a cauldron of liability waiting to bubble over. There’s a way to balance the interests of free speech, on the one hand, and employee control on the other. How you handle that can depend on whether you want employees blogging on behalf of your company or whether you want to be sure you’re not tomorrow’s front-page news in connection with their personal blogs. Here’s a short video clip from attorney Cliff Ennico on SBTV on the subject.