Internet Archives - Page 19 of 30 - The National Law Forum

Firewall on the Hill: The Cybersecurity Information Sharing Act

U.S. Treasury Secretary Jack Lew is urging Congress to pass legislation to bolster the country’s cyber defenses. The proposed bill—the Cybersecurity Information Sharing Act of 2014 (CISA)—may unleash a brute-force attack in the cyber war, but opposition based on privacy and civil liberties concerns could stop the bill dead in its tracks.

The CISA would enable companies to

share information with one another, including an antitrust exemption for the exchange or disclosure of a “cyber threat indicator,” which is broadly defined and includes information that indicates any attribute of a cybersecurity threat;
share information with the federal government, including the absence of any waiver of privilege or trade-secret protection and the retained ownership of the disclosed information;
launch countermeasures and monitor information systems under broad sets of circumstances, potentially expanding the information to be shared; and
monitor and share the information under an umbrella of protection from liability relating to the permitted activities, including a good-faith defense (absent gross negligence or willful misconduct) for activities not authorized by the CISA.

The CISA includes some protections for individuals. Namely, the U.S. Attorney General would develop governing guidelines to limit the law’s effect on privacy and civil liberties. Moreover, companies would be required to remove information that is known to be personal information (and not directly related to a cybersecurity threat) before sharing a cyber threat indicator.

In sum, companies could decide to share a wealth of information with one another and with the federal government if the CISA is passed, when sharing personal information depends on the reach of any future guidelines. If an extensive information-sharing program materializes, and there is at least a perception that sensitive personal information is being shared, companies could feel pressure from customers and advocacy groups to disclose their CISA activities and policies in their privacy statements. Companies should stay informed about developments in cybersecurity legislation, but the potential fallout regarding privacy could substantially weaken or postpone any new system. For every cybersecurity legislative effort, there will be bold countermeasures.

ARTICLE BY

Doneld G. Shelkey

A. Benjamin Klaber

OF:

Morgan, Lewis & Bockius LLP

Fix These 4 Problems on Your Blog to Maximize Search Engine Optimization

1. Make It Useful

Write about something that will provide value to the person reading it. Write with your audience in mind. Keep the writing simple but professional. Remember: Your clients do not have a law degree and if your writing confuses them, they will look for answers elsewhere.

Think about your client base. Are they middle aged woman, seniors, mostly male, individuals with physical handicaps? Target your posts to their interests, needs and questions. Avoid general articles that could be for anyone. Have the reader in mind when you are writing content and show your expertise. Answer the reader’s unasked questions.

Targeting a specific demographic will help with the social signals as it will probably be shared more and will earn links. Fluff content may get you some rankings for staying relevant and regularly updating your website, but if an actual human goes on your site and does not find value in what you have posted, chances of a return visit are slim—and your ultimate goal should be people returning to your site based on the quality of its content.

2. Make It Local

Think about your local area and any news or hot topics that you can cover in blog updates. Can you add unique value to these stories? The more your topics and writing speak to your local audience, the more engaged they will be with your site. Write about charities or events you are involved in.

3. Engage the Audience

How does the page look? Content is not just words. Content can be text, images, videos, charts, graphics and data. Use video and image assets to help tell your story. Visual content engages the user and instills respect for the quality of the information presented on the page.

Also, long blog posts allow you to fit a lot of good information and keywords onto the page, but you will need to divide it in to short sections or into an FAQ format to enable visitors to scan the page for the information they seek.

Use your employees for feedback. Ask them to share your content. If three months have passed and no one has shared anything, it is time to start asking why.

4. Get the Technical Details Right

Effective title structure is key to generating good organic traffic and a high-quality user experience. Utilizing headings (H1, H2, H3), alt text and description tagging is important for user experience (UX) and for search engines to understand and optimally display your content.

Article By:

Tanner Jones

Of:

Consultwebs.com, Inc.

Making Use of Social Media: FDA Releases Two Draft Guidelines on the Use of Social Media Platforms by Drug and Device Manufacturers

The Food and Drug Administration (FDA) has released two long-awaited draft guidance documents for the drug and device industries revolving around the use of social media platforms by drug and device manufacturers — Internet/Social Media Platforms: Correcting Independent Third Party Misinformation About Prescription Drugs and Medical Devices (“Guidance on Correcting Third Party Misinterpretation”), and Internet/Social Media Platforms with Character Space Limitations – Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices (“Guidance on Presenting Risk/Benefit Information”).

As the titles suggest, the purpose of the documents is to clarify how social media may be utilized by drug and medical device companies for the voluntary correction of misinformation provided by independent third parties, as well as for presenting promotional messaging regarding risk/benefit information of products. But while the guidelines provide helpful clarification regarding how such platforms may be utilized, they each also raise considerations that companies should take heed of before beginning to use these outlets, and should be factored into a company’s social media guidelines.

Internet/Social Media Platforms: Correcting Independent Third Party Misinformation About Prescription Drugs and Medical Devices

As an initial matter, the Guidance on Correcting Third Party Misinterpretation (“Draft Guidance #1”) establishes two points: first, Draft Guidance #1 only applies to misinformation posted to Internet-based platforms by an independent third party, therefore excluding content provided by the company itself, its employees and agents. Second, Draft Guidance #1 establishes that the exception to a company’s obligation to respond to or correct misinformation only applies to information that is “truly independent,” for example posted by an independent third party to an unaffiliated platform or a platform providing content that is not controlled by the company.

However, Draft Guidance #1 does not completely exclude company-operated sites. In stark contrast with the company’s obligation to correct content when that content is “owned, controlled, created …influenced or affirmatively adopted or endorsed by, or on behalf of, the firm,” where such corrections are obligatory and also carry advertising and labeling regulatory requirements, Draft Guidance #1 does not hold companies responsible for correcting misinformation where a company owns or operates an online platform that allows for user-generated content (chat room, etc.) over which a company does notexert control. However, Draft Guidance #1 cautions that such a site should contain an “overarching and conspicuous statement that the firm did not create or control the [user-generated content].”

If a company chooses to voluntarily respond to truly independent misinformation, Draft Guidance #1 sets parameters on the process for taking correction action, which should either be by (i) providing appropriate truthful corrective information or (ii) providing “a reputable source for correct information, such as the firm’s contact information. In either approach, in order to constitute “appropriate corrective information” a firm’s communication should denote the affiliation of the corrective post with the company, and be:

relevant and responsive to the misinformation;
limited and tailored to the misinformation;
non-promotional in nature, tone, and presentation;
accurate;
consistent with the FDA-required labeling for the product;
supported by sufficient evidence; and
posted either in conjunction with or reference the misinformation.

In acknowledgement of the vast nature of the Internet and certain forums and the reality that it may be impractical for a company to attempt to correct all misinformation about its products that may appear, Draft Guidance #1 stipulates that companies do not need to address all incorrect information that may be posted regarding a particular drug or device, even if a company elects to correct a selective portion. When addressing any misinformation, therefore, Draft Guidance #1 recommends that a company create a figurative box around the particular misinformation and portion of the forum it intends to correct, and then revise all the incorrect information within that defined boundary, which should include also correcting positive misinformation or exaggerations. Following corrective action, while Draft Guidance #1 does not hold companies responsible for monitoring the communication, it does recommend that companies keep records that include (i) the date, location, and content of the misinformation; (ii) when the wrongful information was discovered; and (iii) a description of the corrective information provided, including the date it was furnished.

Finally, Draft Guidance #1 suggests that the FDA does not intend to object if a firm voluntarily corrects misinformation and the voluntarily provided corrective information does not satisfy otherwise applicable regulatory labeling or advertising requirements, so long as the corrective information is not non-truthful, misleading, or in a manner other than recommended by Draft Guidance #1. However, companies should take heed that any corrective action that goes beyond merely providing accurate information that is specifically tailored to the misinformation it is addressing (i.e., including slogans or promotional information) must comply with applicable regulatory requirements related to labeling or advertising.

While helpful for establishing clearly both the parameters for correctly responding to misinformation as well as for clearly limiting a company’s obligation to respond to any or all misinformation posted by an independent third party, the Guidance on Correcting Third Party Misinterpretation also reminds companies to take caution when doing so to ensure that their responses are narrowly tailored enough to fall under the purview of the guidance and outside regulatory requirements. That caution includes carefully considering where misinformation clearly constitutes “truly independent” information. Companies should be mindful of the reality that “truly independent” is not a concept that is well defined, and should thus be cautious before asserting that certain misinformation may fall under the purview of Draft Guidance #1 as the FDA advances a broad interpretation of when a company is responsible for taking corrective action.

Internet/Social Media Platforms with Character Space Limitations — Presenting Risk and Benefit Information for Prescription Drugs and Medical Devices

Prepared by the Office of Prescription Drug Promotion, the second guidance issued by the FDA last week, the Guidance on Presenting Risk/Benefit Information (“Draft Guidance #2”), addresses the parameters around presenting benefits and risks information on Internet and social media platforms with character spacing limitations, such as microblogs (e.g., Twitter) and online paid search (e.g., “sponsored links” on search engines such as Google). Draft Guidance #2 clearly establishes that, as a threshold matter, the character restrictions do not eliminate the company’s responsibility to ensure its promotional messaging complies with all applicable regulations related to advertising and labeling, and cautions that such forms of media may not be appropriate for promotion of certain products, such as those with complex indications or risk profiles.

For companies that choose to make product benefit claims on character-space-limited communication sites, while each may reasonably use common abbreviations (including scientific and medical abbreviations), punctuation marks, and other symbols to comply with space constraints, Draft Guidance #2 presents a broad set of rules that must be satisfied by each communication relating to both risk and benefit information.

Benefit Information

Benefit information should be accurate, non-misleading, and reveal material facts within each individual message or tweet.
Benefit information should be included with risk information in the same message. Do not spread benefit and risk information across multiple messages or tweets.

Risk Information

Risk information should be included with benefit information in the same message. Do not spread risk and benefit information across multiple messages or tweets.
Risk information should be “comparable in scope” to the benefit information, and should, at minimum, include the most serious risks, e.g., those included in a boxed warning or known to be life-threatening, among others, associated with the product. To determine whether risk information is “comparable in scope” to the benefit information, the FDA weighs (i) whether the risk information “qualifies any representations made about the product,” and (ii) whether the risk information is presented with a “prominence and readability comparable to the benefit claims about the product.” While risk disclosures may be concise when paired with benefit information, a hyperlink to a complete, and exclusive, discussion of risks should be included and appropriately titled and not promotional in nature.
Both the proprietary and established (generic) name for the product should be included within the character-space limited communication and on each landing page associated with each hyperlink in that initial communication. Draft Guidance #2 recommends that the landing page be devoted exclusively to the communication of risk information about the product and not to the promotional home page. Such landing page should also prominently display quantitative ingredient and dosing information for prescription drugs.

In light of the restrictions set forth by Draft Guidance #2, while companies should feel comfortable taking advantage of current social media platforms including those with character restrictions, they should also ensure that the parties responsible for drafting any such posts are aware of the parameters placed on such communications. A hypothetical example provided by Draft Guidance #2 exemplifies some of the potential disadvantages of such messaging:

NoFocus (rememberine HCl) for mild to moderate memory loss-May cause seizures in patients with a seizure disorder www.nofocus.com/risk

While the message complies with each of Draft Guidance #2’s directives, the balancing of risk and benefit information in a space restricted communication may have the unintended result of highlighting risk over benefit. Additionally, from a practical standpoint, the space constraints may prevent the inclusion of all necessary information. If a company cannot conclude that “adequate” benefit and risk information (along with other required disclosure) may be communicated in the same message or tweet — particularly at 140 characters — Draft Guidance #2 recommends that the company reconsider whether the use of the particular platform is the appropriate forum for the dissemination of such messaging before making use of such forums, once again in particular for drugs with complex indications or high risk profiles.

As a general conclusion, while the Guidance on Presenting Risk/Benefit Information is self-admittedly limited in scope, and does not address “promotion via product websites, webpages on social networking platforms (e.g., [Facebook, Twitter, YouTube]), and online web banners,” it undeniably provides helpful direction for drug and device companies’ use of social media sites for promotional messaging where communications are restricted to a limited number of characters, as well as highlighting how the FDA may intend to regulate such use. Companies should pay careful attention to the restrictions while taking advantage of the opportunities these social media platforms offer, and should take care to ensure to instill clear policies that comply with Draft Guidance #2 that are available to, and understood by, individuals tasked with producing and monitoring social media content for the company.

The FDA will be accepting comments on both Draft Guidance #1 and Draft Guidance #2 until September 16, 2014.

Article By:

Cynthia J. Larose

Christine M. Wahr

Of:

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Wisconsin’s Password Protection Law Mandates Review of Policies and Practices

Wisconsin has joined the ranks of other states who have limited the circumstances under which employees or applicants can be required to provide access to his or her personal Internet account. The Social Media Protection Act (2013 Wisconsin Act 208) became effective April 16, 2014. The new law makes it illegal for an employer to request or require an employee or applicant to disclose personal Internet account access information. A parallel prohibition within the Act applies to educational institutions and landlords.

A “personal Internet account” is defined as an Internet-based account that is created and used by an individual exclusively for purposes of personal communications. With the passage of the Act, employers are now prohibited from:

Requesting or requiring an employee or applicant, as a condition of employment, to disclose access information to the individual’s personal Internet account or to ask the individual to grant access to or allow observation of that account.
Discharging or otherwise discriminating against an employee for exercising his/her right to refuse to disclose personal Internet account access information.
Refusing to hire an applicant because the individual did not disclose personal Internet account access information.

While the law primarily protects the privacy of employees and applicants, it also offers employers a limited degree of protection. Specifically, employers can:

Request or require an employee to disclose access information to the employer in order for the employer to gain access to or operate an employer-provided (or employer-paid) electronic communications device provided by virtue of the employee’s employment relationship or used for the employer’s business purposes.
Discharge or discipline employees for transferring proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization.
If the employer has reasonable cause, conduct an investigation or require an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account or to conduct an investigation of any other alleged employment-related misconduct, violation of the law or violation of the employer’s work rules. During the investigation, the employer can require the employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account.
Restrict or prohibit an employee’s access to certain Internet sites, while using an employer-provided (or paid for) electronic communications device, or while the employee is using the employer’s network or other resources.
View, access or use information about an employee or applicant that can be obtained without access information or that is available in the public domain.
Request or require an employee to disclose his or her personal electronic mail address.

A person who has been discharged, expelled, disciplined, or otherwise discriminated against for reasons provided under this law may file a complaint with Wisconsin’s Department of Workforce Development (the “DWD”).

Employers should make sure that their employment policies and practices conform to the requirements of 2013 Wisconsin Act 208. In particular, employers should make sure that employees using employer-provided or paid for electronic communication devices for business purposes do not have any expectation of privacy in such devices or the communications that flow from them.

In addition, employees should be informed that they are prohibited from disclosing proprietary or confidential information or financial data to anyone using personal Internet accounts and only for legitimate business reasons if using an employer-provided account. Lastly, employers should make sure that their employment policies are clear in reserving the right to conduct, and in expecting employees to cooperate in, investigations concerning the unauthorized transfer of proprietary, confidential or financial information.

Article By:

Jon E. Anderson

Of:

Godfrey & Kahn S.C.

The One SEO Rule You Need to Know About Alt Tags for Images

Wikipedia says alt attributes (alt tags) are used in HTML documents/Web pages “to specify alternative text (alt text) that is to be rendered when the element to which it is applied cannot be rendered.”

To optimize your website’s content for search, remember one simple rule for image alt tags: An image’s alt attributes should describe the visual. Including keywords in alt tags is a good practice as long as it’s not spammy. Alt attributes used to have a larger SEO impact in Google searches before the company changed its Google Image search design. Traffic has decreased considerably from image search since then.

Article By:

Tanner Jones

Of:

Consultwebs.com, Inc.

To Satisfy New Search Algorithms, Legal Websites Need Quality Content

The success of a law-firm website is determined by how many clients and potential clients visit the site, spend time there and take action based on what they discover.

Over the years, law-firm marketers focused on keyword and link strategies to enhance search engine results and increase traffic to their websites. While these are still valuable tools, recent developments in the search universe have shifted the emphasis to content strategy.

Quality content includes well-written articles, blog posts, videos, webcasts, presentation slide decks, infographics, eBooks and white papers. Quality content addresses client needs.

Sixty-seven percent of the time, online searchers use Google to find what they are looking for. To provide the best results, Google is constantly tweaking its search algorithm. (An algorithm is a process or set of rules to be used by a computer in calculations or other problem-solving operations.) These algorithms are designed to maintain search engine integrity and punish violators.

Sara Downey Robinson and Chris Davis discussed the changing landscape of digital marketing and search engine optimization at the monthly meeting of the Rocky Mountain Chapter of the Legal Marketing Association, held May 13 at Guard and Grace in LoDo Denver.

Davis is business development director at Burns Marketing, a full-service B2B marketing agency that combines traditional and digital marketing to help clients drive demand. Robinson is marketing coordinator at Inflow, a top inbound-marketing firm specializing in search.

Panda, Penguin and Hummingbird

Panda and Penguin are two major changes to the existing Google algorithm made in 2011 and 2012, respectively. In 2013, Google released a totally new algorithm called Hummingbird (which incorporates and enhances the updates made by Panda and Penguin). These three developments have completely changed the way law firms must look at search.

“Law-firm sites that regularly showed up on page one now find themselves on page 20,” said Robinson. “Since searchers rarely go beyond the second page of results in an online search, this is a real problem.”

Google Panda focuses on keywords. Sites with keyword “stuffing” are demoted or flagged as spam. Panda also penalizes low-quality content, thin content, duplicate content and the amount of advertising compared with the amount of useful content on a site.

Google Penguin focuses on links. It focuses on “black hat” tactics like links that come from poor-quality sites, from sites that aren’t topically relevant to a target market, paid links, and links where the anchor text is overly optimized (exact-match anchor text). Use natural language in your links, and vary it.

“Quality inbound links are not found at garage sales, “said Robinson. “Steer clear of link farms. A few high-quality, carefully developed links perform much better than a large number of weak, irrelevant links. It takes time and perhaps a dedicated staff person to develop and nurture quality links.”

The new Google Hummingbird algorithm looks for a steady stream of high-quality, relevant content and natural language on webpages – and rewards those who provide it. Hummingbird attempts to decipher a search engine query by using the context of a question rather than the specific keywords within the question. Thin content, keyword stuffing and lack of relevant content will cause significant demotions.

“Content marketing is a technique that creates and distributes valuable, relevant and consistent content to attract and acquire a clearly defined audience,” said Davis, “with the objective of driving profitable customer action.”

Identify client personas and clarify their needs

Before a law firm can create relevant content, it needs to know with whom it is communicating. In marketing talk, this is called the “user persona” – or target market.

“In user-centered design and marketing, personas are user types that might use a legal service in a similar way,” said Davis. “A small law firm might target one user persona. A large law firm will target numerous user personas.”

One law-firm user persona might be high-income individuals going through divorce. Another might be small businesses in need of venture capital. Another might be large medical equipment manufacturers facing product liability lawsuits. The more specific the persona, the more specific a law firm’s content can be. Relevant content will answer the questions these users are asking, using natural language.

A user personal is a representation of the goals and behavior of a hypothesized group of users. In most cases, personas are synthesized from data collected from user interviews.

“An effective law firm website will focus not on the firm’s capabilities, but on the identified needs of a persona or personas,” said Davis. “It will use industry- or interest-specific terminology within a context familiar to the targeted persona.”

Create relevant content

Law firms that want to prevent or correct loss of search engine result page rankings and traffic should publish meaningful, original content on a regular basis. The goal is content that will establish a firm, practice group or lawyer as a though leader in an area relevant to a user persona.

“Take the time to discover the common questions your clients have, and provide the answers to these questions,” said Davis. “Relevant content can be written, but it also can and should be visual. Video content posted on YouTube (which is owned by Google) is particularly powerful as ‘Google juice.’”

Instead of using keywords like “car accident,” use more specific terms like “car accident lawsuit” or “car accident insurance”, or better yet natural language terms like “What should I do if I am sued for a DUI car accident?” or “What should I look for when buying car insurance for an older vehicle?” Think in terms of full-fledged questions that a person might ask Siri on a smartphone.

Once search brings users to a law firm’s site, there must be a way to create and nurture a relationship and convert the potential client into a real client over time. Each item of posted content should contain a call to action – some way for the user to interact with the site so that the firm can capture data. This could be a way to comment on a white paper or download information about an upcoming event.

Use analytics to measure success

“Take advantage of Google Analytics to collect data that can be used to improve the quality of your webpages – adding more of what works and eliminating what does not,” said Robinson. “In Google Analytics, which is currently free, law firms can set up specific goals to study how users are entering and interacting with your website.”

Google Analytics lets a law firm know which content is most-viewed and acted upon, so that similar content can be added. It lets the firm know which content is ignored, so that it can be eliminated or improves. It lets a firm know the exact path users take through its site, so that adjustments can be made to create a better user experience.

If observation and analytics show that a law firm website is not getting the results it wants, an audit can help determine the source of the problem, take steps to fix the problem, measure the results of these steps, and look for any others areas that could be improved.

“Increasing inbound traffic to your website is not magic – it is a combination of art and science,” said Robinson. “You should select any agency that makes you feel comfortable and uses language that is easy to understand. You should never feel intimidated.

“At the same time, do not expect miracles,” said Robinson. “Go into the process with reasonable expectations. It takes time to make changes, add quality content and wait for the search engines to find and reward this content. Each day, more than one million pieces of new content are posted to the Internet. It takes time to rise above the fray.”

A law firm that has experienced worsening search engine results in the wake of Panda, Penguin and Hummingbird can take positive steps to restore performance. Google will continue to reward webpages with strong content marketing efforts, including answer-driven content. It also rewards sites that generate social media buzz – especially an active presence on its proprietary YouTube and Google+ platforms.

Article By:

Janet Ellen Raasch

Of:

Strategic Writing And Ghostwriting

Facebook for Attorneys: How to Double Your Likes in No Time

Yesterday’s post detailed how business attorneys can double their connections on LinkedIn, but for consumer attorneys the most likely social media platform for your attention is Facebook.

And just like all social media networks, the lion’s share of the attention goes to those who interact frequently – and genuinely – with followers and fans.

Knowing how valuable and limited your time may be for social media marketing, you need to make efficient use of it to get the maximum benefit. The infographic below from WhoIsHostingThis.com gives you specific steps you can take to double your Facebook “likes” in just five minutes a day:

Article By:

Stephen Fairley

Of:

The Rainmaker Institute

LinkedIn for Lawyers: How to Double Your Connections in No Time [INFOGRAPHIC]

If you practice business law of any type, then you should know by now that you need to be on LinkedIn.

But just like being on a treadmill without turning on the power won’t budge your waistline, “being on” LinkedIn is not enough to get you any benefit from this fantastic social media platform for business. You have to be active!

The infographic below from WhoIsHostingThis.com shows you how you can double your LinkedIn connections in just five minutes a day. Specifically, you need to:

Send an invitation to at least one new connection a day
Participate in relevant LinkedIn discussion groups at least once a week
Ask people you know to endorse you
Share your blog content, an article, a video or a presentation
Add a link to your LinkedIn profile to your email signature and post on your social media profiles
Keep your profile updated

Article By:

Stephen Fairley

Of:

The Rainmaker Institute

SEC (Securities and Exchange Commission) Guidance on the Testimonial Rule and Social Media

In March 2014, through question and answer format, the Division of Investment Management issued an Investment Management Guidance Update on an adviser’s or investment advisory representative’s (IAR) ability to use social media and to promote client reviews of their services that appear on independent, third-party social media sites.

Section 206(4) of the Advisers Act and Rule 206(4)-1(a)(1) (the testimonial rule) prohibit investment advisers or IARs from publishing, circulating, or distributing any advertisement that refers to any testimonial concerning the investment adviser or any advice, analysis, report, or other service rendered by such investment adviser. While the rule does not define “testimonial,” the staff previously has interpreted it to mean a “statement of a client’s experience with, or endorsement of, an investment adviser.”

Third Party Commentary. The guidance clarifies that in certain circumstances, an investment adviser or IAR may publish public commentary from an independent social media site if (i) the social media site’s content is independent of the investment adviser or IAR, (ii) there is no material connection between the social media site and the investment adviser or IAR that would call the site’s or the commentary’s independence into question, and (iii) the investment adviser or IAR publishes all of the unedited comments appearing on the independent social media site. The staff explained that publishing commentary that met these three criteria would not implicate the concerns of the testimonial rule and, therefore, an investment adviser or IAR could include such commentary in an advertisement.

Inclusion of Investment Adviser Advertisements on Independent Sites. The guidance also addresses the existence of an investment adviser’s or IAR’s advertisement on an independent site and notes that such presence would not result in a prohibited testimonial provided that (i) it is readily apparent to the reader that the advertisement is separate from the public commentary and (ii) advertising revenue does not influence, in any way, the determination of which public commentary is included or excluded from the independent site.

Reference by Investment Adviser to Independent Social Media Site Commentary in a Non-Social Media Advertisement (e.g., radio or newspaper). In the guidance, the staff explained that investment advisers or IARs could reference, in a non-social media advertisement, an independent social media site. For example, an adviser could state in its newspaper ad “see us on Facebook or LinkedIn” to signal to clients and prospective clients that they can research public commentary about the investment adviser on an independent social media site. In contrast, however, the investment adviser or IAR may not publish any testimonials from an independent social media site in a newspaper, for example, without implicating the testimonial rule.

Client Lists. The guidance also addressed posting of “contacts” or “friends” on the investment adviser’s or IAR’s social media site. Such use is not prohibited, provided that those contacts or friends are not grouped or listed in a way that identifies them as current or former clients. The staff carefully noted, however, any attempts by an investment adviser or IAR to imply that those contacts or friends have received favorable results from the advisory services would implicate the testimonial rule.

Fan/Community Pages. The guidance stated that a third-party site operating as a fan or community page where the public may comment ordinarily would not implicate the testimonial rule. However, the guidance cautioned investment advisers or IARs to consider the material connection and independence rules discussed above prior to driving user traffic to such a site, including through the publication of a hyperlink.

Sources: Investment Management Guidance Update, No. 2014-4, Guidance on the Testimonial Rule and Social Media (March 2014); Investment Company Institute Memorandum Regarding the Advisers Act Testimonial Rule and Social Media Guidance (April 1, 2014).

Article By:

Christopher M. Cahlamer

Elizabeth J. Chandler

Laura A. Hawkins

Susan Hoaglund

Helge Lee

Of:

Godfrey & Kahn S.C.

Employer Email Policies on Chopping Block as General Counsel Seeks to Overrule Register Guard and Board Calls for Amicus Briefs

In a development of importance to both union and non-union employers, the NLRB General Counsel has asked the NLRB to overrule its 2007 decision in Register Guard, 351 NLRB 1110 (2007). In Register Guard, the Board had held that employers could bar employee use of the employer’s email for non-business purposes, including union or other communications protected under Section 7 of the National Labor Relations Act, so long as the employer did so on a non-discriminatory basis.

The General Counsel now seeks a new rule that employees may use employer email for union or other Section 7 protected purposes so long as doing so does not impede production or workplace discipline. The Board has issued a notice the case, Purple Communications, Inc., Case Nos. 21-CA-095151, 21-RC-091531 and 21-RC-091584, inviting interested parties to file amicus briefs by June 16, 2014.

In its notice, the Board asked the amicus briefs to address the following questions:

Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes
If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
In deciding the above questions, to what extent and how should the impact onthe employer of employees’ use of an employer’s electronic communicationstechnology affect the issue?
Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided.

How should these affect the Board’s decision?

The Board also invited amici to submit “empirical and other evidence”, which most likely means studies showing how employees use email in the workplace, how much productive time is lost because of over-use of email, and the like. It is also possible the Board’s eventual decision could have an impact on other types of employee communications through various electronic devices and social media.

It has long been anticipated that the new Board and General Counsel would want to revisit the Register Guard decision. Now that the time has come, it will be important for employers to engage as amici in an effort to shape the outcome and provide all Board members — including possibly dissenting ones — with both legal analysis and practical and operational considerations that should inform the Board’s policy choices in this important area.

Article By:

Ronald Meisburg

Of:

Proskauer Rose LLP

Category: Internet

The One SEO Rule You Need to Know About Alt Tags for Images

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