Guide Through the Legal Jungle

Internet Legal Trends to Watch. Part 3: Responses to Cyber Bullying

The tragic suicide in 2010 of Rutgers University student, Tyler Clementi, centered national attention once again on cyber bullying. After a roommate posted a sex tape of Clementi on the internet, Clementi jumped to his death from the George Washington Bridge.

Developing Cyber Bullying Legal Remedies

What can be done to combat cyber bullying and its close cousins cyber stalking, and cyber harassment?

Congress has considered legislation that would impose federal penalties for cyber bullying. The Megan Meier Cyberbullying Prevention Act was introduced in the last session of Congress – but did not pass into law. New federal legislation may be introduced in the current session.

In the meantime, states are not idly waiting around. They have enacted new state laws and expanded existing laws to incorporate prohibitions against cyber bullying and cyber stalking by means of the internet. For example, earlier this month, New Jersey passed the "Anti-Bullying Bill of Rights" which some call the strongest anti-school bullying law in the nation. The new NJ law includes specific provisions to address bullying via the internet and other digital communication forms and requires schools to report, investigate and resolve bullying issues within ten days – regardless of whether the bullying takes place at school, outside of school, or in cyberspace.

Other states have updated their laws to crack down on cyber misdeeds. Here are just a few of which I’m aware:

• California recently enacted SB 1411 which makes it a criminal misdemeanor to credibly impersonate someone through or on a website or by certain other electronic means to harm, intimidate, threaten or defraud another person.
• in response to the Meagan Meier case, Missouri passed the Internet Harassment Law, effective August 28, 2008. which updated harassment laws to remove the requirement that the communication be written or over the telephone and extending it to harassment from computers, text messages and other electronic devices.
• Nebraska is considering LB 123, which is cyberbullying law similar to the one just adopted by New Jersey.
• As of September, 2009, it became a crime in Texas to impersonate someone online.

More states are certain to follow this trend.

Internet Legal Trends to Watch. Part 2A: More on Wikileaks and Online Privacy

In previous postings in this Internet Legal Trends to Watch series, I discussed Online Privacy and Wikileaks. A development in the Wikileaks story has some interesting overlap with the question of how much of our personal information is available online.

Evidently, the federal government subpoenaed information from the Twitter accounts of Julian Assange and other Wikileaks associates. When a private individual or organization tries to obtain your anonymous online identity or online information, you must be notified of the subpoena request so you have an opportunity to “quash” the subpoena and keep your information private. In the Wikileaks case, the government got the subpoena with a gag order prohibiting Twitter from notifying Assange and the other individuals of the subpoena request.

We only know this because Twitter successfully fought to remove the gag order and then informed Assange of the subpoena request. The disturbing part of the story is that the government likely subpoenaed other social networks used by Assange and that those social networks may have handed over personal information without making any attempts to fight the gag order.

Reporter, Barton Gellman, offers a more detailed overview in the article “Twitter, Wikileaks, and the Broken Market for Consumer Privacy”.

Internet Legal Trends to Watch. Part 2: Wikileaks Raises Questions about Rights of Internet Journalists

One of the many questions triggered by the Wikileaks story is whether laws that protect journalists and the print media apply to bloggers and others who provide newsgathering services via the internet. The trend is that disseminating news through a blog or other new media forum does not disqualify you from treatment as a journalist. If you act like a journalist, the courts are more inclined to treat you like a journalist.

The government’s desire to prosecute Julian Assange over Wikileaks’ release of thousands of classified documents could introduce additional nuances into the treatment of internet journalists. The government is considering prosecuting Assange under the Espionage Act which broadly criminalizes willfully retaining or communicating information relating to the national defense when done with knowledge that the communication could damage the United States.

Even though U.S. newspapers and journalists regularly publish stories and documents based on leaked government information (e.g., think the New York Times publication of the Pentagon Papers), the Espionage Act has never been used to indict a journalist. This is primarily in deference to the First Amendment. Several commentators have distinguished the actions of Assange and Wikileaks from the actions of more established and traditional media. Nevertheless, if Assange is prosecuted with anti-espionage laws, what does that mean for the news media’s reporting of defense topics?

Internet Legal Trends to Watch. Part 1: Online Privacy & Do Not Track

Privacy is the new buzz word in talks about the internet and social media. Consumers are becoming increasingly concerned with behavioral and targeted advertising, which is the technique of tracking your online search and browsing activity to determine which products might interest you.

Websites may have more information about you than you realize. They gather information through your online postings, through tracking technology, and through sharing information with business partners. In this radio interview with host Scott West on Daybreak USA, I explain how websites know more about us than we may realize and some of the consequences of having too much of our personal information available through the internet.

Isn’t It Illegal for Websites to Track and Share Information about Me Without Telling Me?

No, not really. There is currently no federal law that requires a website to tell you what information it collects from you, what it does with that information – or even if it collects information at all. The important exception is for sites that are targeted to children. They must comply with the Children’s Online Privacy Protection Act (COPPA). Some states are becoming more aggressive in demanding privacy policies and procedures of websites. For example, the California Online Privacy Protection Act of 2003 requires posting of a privacy policy by any commercial website that collects personally identifiable information from consumers residing in California.

What’s On the Horizon for Privacy Laws?

Congress and regulators are looking closely at online privacy so this may change in the future.

FTC Proposal. The Federal Trade Commission released a report in December and is currently soliciting comments on a new privacy framework that among other things would (i) allow consumers to choose a “Do Not Track” mechanism similar in concept to the “Do Not Call” list, and (ii) require online companies to be more transparent in disclosing what information they collect and how they use it. My DC Bar colleague, Andy Mirsky, discusses the major principles of the FTC’s proposal in a podcast interview with Karen Neuman.

Congressional Action. Rep. Edward Markey (D-Mass.) and other members of Congress have indicated an intention to introduce “Do Not Track” for children. Congress has also indicated that it may pass legislation to give the FTC more privacy rule-making and enforcement authority, a likely required step before the FTC could put its proposed privacy framework in place.

Consumer Action. In 2010 there were at least six lawsuits filed in California against websites and companies that use flash cookies, a tracking mechanism that consumers cannot easily delete. Several of these lawsuits have settled with the companies agreeing to cease using the cookie technology. This legal action suggests that consumers will become less tolerant of tracking techniques they deem to be invasive.

What a Company Social Media Policy May Legally Require

It has become increasingly common for companies to have policies and agreements concerning employee social media activities. And that’s a good thing. Companies should implement social media policies in order to make sure their employees’ online and social media activities don’t harm the company.

Social Media Policies Can Be Illegally Broad

However, if drafted carelessly and without legal guidance, a company’s media policy can go too far. For example, current media reports that the American Medical Response of Connecticut recently fired an employee who started a conversation on Facebook about her employer and her working conditions. American Medical Response’s social media policy prohibited employees from depicting the company in any way on social media sites in which they post pictures of themselves.

That prohibition was too broad and likely illegal. A social media policy that prevents employees from talking about improving work conditions violates federal laws. Similarly, a social media policy may not restrict employees from discussing unionization.

Acceptable Provisions for a Company’s Social Media Policy

In my book, The Cyber Citizen’s Guide through the Legal Jungle, I offer the principles many companies place in their social media policies:

• The employee’s internet postings must not disclose any of the employer’s confidential or proprietary information.


• If the employee comments on an aspect of the employer’s business in which the employee has responsibility, the employee must identify himself as an employee of the company and make it clear that he is speaking on behalf of himself and not the company.


• If the employee identifies himself as an employee of the company, refers to the company’s work or provides a link to the company, the employee must include a disclaimer such as the following: “the views expressed on this post are mine and do not necessarily reflect the views of the ABC Company.”


• The employee's internet postings should not include the employer’s logos or trademarks.

Is News-Reporting Via Twitter More Akin to a Haiku or a Bumper-Sticker?

No television cameras were allowed in the Connecticut murder trial of the men accused of killing the wife and daughters of Dr. William A. Petit, Jr. in Cheshire, Connecticut. Nevertheless, those unable to be present in the packed court room were able to stay completely updated on each trial development as it occurred.

That’s because at least half a dozen mainstream journalists tweeted the trial. One reporter referred to this method as “haiku journalism”. A commenter to a New York Times article on the topic, “A Grisly Murder Trial, in 140-Character Bits”, thought comparison to haiku was much too flattering and referred to this evolving news-reporting method as “bumper sticker journalism”.

Using Twitter for news reporting raises questions about voyeurism as reporters sent out all the grisly details of a horrific crime and the lack of editorial review for a news article sent out in tweets. I’ll add two legal questions to the debate over twitter as a journalism method.

Does Copyright Protect Tweeted News Articles?.

News articles are protected by copyright. Several newspapers have been battling to force bloggers, portals, and others to show proper respect for those copyrights in an online world.

Does news sent out via Twitter enjoy copyright protection? I would say yes. While a single 140-character tweet is likely too short to qualify for copyright protection, a stream of tweets that together comprise one coherent story should qualify for copyright protection.

A related question is how much control over that copyright does the reporter or news organization retain? When you post to Twitter, you retain ownership in your tweets. However, you give Twitter “a worldwide, non-exclusive, royalty-free license” to use the tweet in any way Twitter wants. That means Twitter can stream or share the tweeted news story with other online and offline outlets.

Does the Risk of Libel Increase for Tweeted Articles?.

The news stories most likely to be tweeted include those stories that are sensational and controversial. When reporters are tweeting the stories as fast as they can type and there is no editorial overview, twitter-journalism seems to introduce more opportunities for defamation claims as reporters, who are only human, get their facts wrong and “type without thinking”.

Things to Consider Before Sending a Mass Marketing Email

If you do business online, you may wonder if it is legal to compile a list of email addresses of people whom you do not personally know and email them a marketing message about your product or service? Here are a few considerations:

Effect of CAN-SPAM Act

The CAN-SPAM Act applies. CAN-SPAM stands for Controlling the Assault of Non-Solicited Pornography and Marketing Act. It is a federal law designed to combat spam, otherwise known as unsolicited commercial email.

However, the CAN-SPAM Act does not prevent you from sending an initial commercial email. Instead, the CAN-SPAM Act requires you to use honest business practices in the email you send. CAN-SPAM requirements include

• using accurate header information,

• using an accurate subject line,

• providing recipients with an opt-out method to future emails from you, and

• including your valid postal address.

I discuss CAN SPAM compliance in The Cyber Citizen’s Guide Through the Legal Jungle.

CAN-SPAM Is Not All You Must Consider

Even though CAN-SPAM doesn’t prohibit sending an initial commercial email, sending a mass email to a list that is not permission-based might still be considered as bad netiquette. Also, sending commercial email to a non-permission-based list may violate the Terms of Service of your website host provider or the service you use to distribute the emails (such as Constant Contact or Vertical Response) and it may get your domain name blacklisted as a spammer.

Collection of Email Addresses

How you plan to obtain the email addresses also matters. Certain forms of email harvesting are criminal under the CAN-SPAM Act as well as other state laws.

 

 

 

 

 

 

 

 

Things to Know Before Launching a Social Media Campaign

Many businesses are jumping aboard the social media marketing express! As a business owner, there are a few things you should know and do before launching your company’s social media marketing campaign:

Content Ownership. If your business outsources its social media marketing campaign, you should determine the ownership of any original content in advance. The freelancer is the copyright owner of the content unless there is a written agreement signed by the freelancer indicating otherwise.

Domain Name and Social Media Account Registration. Even if you outsource, handle the registration of domain names and social media accounts internally. This guarantees that these names and accounts are registered in your name or your company’s name – and not in the name of a freelancer or employee who may later leave the company. Registrations in the wrong name can lead to ownership issues down the line.

User Generated Content. Businesses with social media campaigns featuring customer interaction should take advantage of the federal laws that provide insulation from liability for any infringing or defamatory content posted by customers. These federal laws include the Digital Millennium Copyright Act and the Communications Decency Act (CDA).

Marketing to Children. If your marketing campaign is targeted to children, you must comply with the Children’s Online Privacy Protection Act (COPPA) which requires posting a privacy policy on your website and getting parental consent before collecting names, email addresses, or other personal information from children under 13. Federal regulators have issued penalties of up to $1,000,000 to companies that failed to comply with COPPA.

Righthaven's Questionable Domain Name Grab

Righthaven has filed over 100 copyright infringement lawsuits against bloggers and website owners who re-post news articles without permission. The lawsuit that has drawn much media attention is a lawsuit against Sharron Angle, who is running for the Nevada senate seat and whose website, sharonangle.com, posted two Las Vegas Review Journal news articles without permission.

Righthaven’s Modus Operandi

Righthaven’s method involves searching the internet for unauthorized postings of news articles, obtaining the copyright in those news articles, and then filing suit. Righthaven has been heavily criticized and called a “copyright troll”. Righthaven launches suits in circumstances where many content owners would simply issue a DMCA take-down letter, directly request the blogger/website owner remove the news article, - or frankly just ignore the situation. Many of the sites sued by Righthaven operate on a small-scale and do not generate significant revenue.

Righthaven’s Illogical Pursuit of Domain Names

One aspect of these cases that has received less attention is Righthaven’s quest for the website owner’s domain name. It is possible to obtain someone else’s domain name through a legal proceeding under the Uniform Domain Name Dispute Resolution Policy, the Anticybersquatting Consumer Protection Act, or a federal or state trademark statute.

However, such claims have nothing to do with copyright – and everything to do with trademark. In order to succeed in taking someone’s domain name under any of those theories, Righthaven must demonstrate that the website’s domain name is the same as or confusingly similar to a trademark in which Righthaven has rights. In the Righthaven complaints I’ve read, Righthaven makes no mention of any trademarks it seeks to protect.

I agree with Attorney Evan Brown that Righthaven’s pursuit of domain names makes no legal sense. It may have some Machiavellian strategic sense by serving as an additional incentive for the website owner to settle quickly by paying Righthaven a few thousand dollars.

Is It Okay to Re-Print or Post an Article from Another Site?

It’s tough constantly coming up with original material for our blogs and social media sites. Believe me, fellow bloggers and writers, I feel your pain.

I recently responded to an aspiring blogger’s query regarding the extent to which one can legally re-print articles and use information from articles in newspapers.

Here’s my response:

Many bloggers use material from other blogs and sources. Facts and raw ideas by themselves are not protected by copyright. Hence, if you see, for example, a news article on the recent ebook/digital rights settlement between Random House and the Wylie Agency, you can write a blog posting using the facts/information from that news article as long as you express the facts/information in your own words.

I suggest not doing a re-write or extensive paraphrasing of another source even when attribution is given. It is copyright infringement. In contrast, it is likely not copyright infringement if you use quotes from a blog posting or article for the purpose of adding your own substantive commentary. How much you may quote depends on a fair use analysis. Unfortunately, there is no bright line rule in determining what qualifies as fair use. Whether or not a particular use qualifies as a fair use depends on the specific circumstances.

For More Information on How Much You Can Copy:

• Blog Posting: Bloggers’ Common Legal Questions. Part Three (Covers “Do I Need Permission to Use Other People’s Material on My Blog?”)


• Blog Posting: Staying Legal When Using Quotes


• My Book: The Cyber Citizen’s Guide Through the Legal Jungle: Internet Law for Your Professional Online Presence (Check the table of contents)


• My Book: The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks, and Other Rights for Entertainment and Media Productions (Check the table of contents)