Two recent lawsuits allege that internet service providers violated users’ privacy by sharing “referrer data” containing potentially identifying information.
A former technologist with the Federal Trade Commission filed a privacy complaint(link via WSJ) against Google with his ex-employer. The complaint alleges that Google does not allow users to easily prevent transmission of information that allows website operators to determine the search terms used to access their sites. It claims that this constitutes a deceptive business practice by Google because “if consumers knew that their search queries are being widely shared with third parties, they would be less likely to use Google.”
According to the complaint, Google search URLs contain the user’s search terms, and when users click on a search result the webmaster of that site can see the terms used to access it. The complaint alleges that this conflicts with Google’sPrivacy Policy and cites to Google’s court admissions that search queries may reveal “personally identifying information” and that consumers trust Google to keep their information private.
Google has allegedly tested products that deleted search terms from the referrer data visible to webmasters but discontinued them after receiving complaints and posted reassurances that search terms would remain visible. Apparently Google now offers an SSL encrypted search engine at https://www.google.com which protects search terms from being intercepted, but the complaint notes that this is not the default setting and it is not linked from the regular Google site. It also notes that Google provides search term protection to Gmail users searching their inboxes.
The merits of the complaint may hinge on whether search terms should be considered “personal information.” The complaint notes that the New York Times was able to indentify supposedly anonymous AOL searchers in 2006 when AOL leaked a dataset of search queries.
The second suit alleges that, from February through May, Facebook transmitted referrer information to advertisers about users who clicked on their ads. It alleges violations of the federal Electronic Communications Privacy Act and Stored Communications Act as well as California computer privacy and unfair competition laws and common law claims of breach of contract and unjust enrichment.
The suit claims that “Facebook has caused users’ browsers to send Referrer Header transmissions that report the user ID or username of the user who clicked an ad, as well as the page the user was viewing just prior to clicking the ad . . . For example, if one Facebook user viewed another user’s profile, the resulting Referrer Headers would report both the username or user ID of the person whose profile was viewed, and the username or user ID of the person viewing that profile.”
As in the Google complaint discussed above, the plaintiffs allege that Facebooks actions violate its privacy policy (which allegedly states “we never share your personal information with our advertisers”) and other representations to users as well as state and federal privacy laws. The amended complaint may be stronger than the suit against Google because referring Facebook pages, unlike Google searches, are often highly personalized and contain the Facebook user’s name. Facebook allegedly stopped embedding referrer data in May after media accounts exposed the practice.
Although some tech executives have been quick to sound the death knell for online privacy, consumers – even those who are products of the Internet generation – continue to disagree. A recent poll shows that 85 percent of teens believe social media sites should obtain their permission before using their information for marketing purposes.
Excerpted from FVLD’s blog, http://www.postorperish.com, which regularly discusses these and other issues facing online publishers.
This comprehensive, one-day program will provide in-depth information concerning the complex issues that arise in connection with criminal enforcement of intellectual property rights (primarily involving trade secrets, copyright, and trademarks). The program consists of five panels whose members are key government insiders; policy makers; Assistant U.S. Attorneys; defense counsel; trade group leaders; and rights holders. Panel topics focus on current issues, trends, legal strategies, private industry case development and criminal referral, parallel proceedings and ethical issues in intellectual property enforcement.
This program brings together defense attorneys, prosecutors, members of law enforcement, policy makers, and business leaders to discuss hot topics and legal trends in the rapidly evolving field of intellectual property enforcement.
Mandatory continuing legal education (MCLE) accreditation has been requested from all states which require continuing legal education. 5.75 hours of CLE credit have been requested from those states recognizing a 60-minute credit hour and 6.90 hours of CLE credit have been requested from those states recognizing a 50-minute credit hour.
Peeled, Inc. (“Peeled”) www.peeledsnacks.com, a company specializing in healthy, natural snack foods including dried fruits and dry roasted nuts, recently filed a trademark infringement suit in the United States District Court for the Southern District of New York against Peeled Fruit LLC (“Peeled Fruit”) www.simplypeeled.com. Peeled Fruit sells frozen soft-serve fruit, with fresh fruit toppings. Peeled alleges that Peeled Fruit is attempting to cash in on the brand awareness and goodwill associated with Peeled’s marks.
Peeled began marketing its products under the marks “Peeled,” “Peeled Fruit,” and “Peeled Snacks” as early as 2004. Since that time, Peeled’s marks have received extensive coverage in television and print media, including receiving a coveted spot on Oprah’s O List as one of Oprah’s favorite afternoon snacks, and receiving the 2008 “Best of Food” award from Health Magazine. Peeled registered the mark “PEELED SNACKS” on January 10, 2006 with the United States Patent and Trademark Office.
Peeled alleges in its complaint that long after it began marketing its products with the Peeled marks, Peeled Fruit began infringing on the marks by using the words “Peeled” and “Simply Peeled” in its marketing materials. Peeled argues that Peeled Fruit sells similar products with similar ingredients, and that as a result the products are confusingly similar. Peeled claims that Peeled Fruit had full knowledge of Peeled’s prior use of the marks, and that in spite of Peeled’s requests, Peeled Fruit has refused to cease its use of the marks.
Peeled alleges that Peeled Fruit not only knew about Peeled’s use of the marks, Peeled Fruit “adopted the trademarks with the intent to trade and capitalize on the goodwill generated by Peeled, Inc.’s extensive and widespread use of its trademarks, as well as its extensive sales, advertising and consumer acceptance and recognition.” Peeled argues that the similarities between the products sold by both companies make the shared use of the marks likely to cause confusion, mistake and deception among consumers.
As a result, Peeled is seeking an injunction against Peeled Fruit, which would restrict Peeled Fruit from further use of the marks. Peeled is also seeking a monetary damage award, under federal trademark law (15 U.S.C. § 1117), in an amount equal to either 1) three times the amount by which Peeled was damaged by the alleged infringement, or 2) three times the total profits Peeled Fruit obtained from the use of the allegedly infringing marks. Finally, Peeled is seeking an order from the court, under 15 U.S.C. § 1118, requiring Peeled Fruit to destroy all materials that display the allegedly infringing marks.
Jonathan Stagg is an associate practicing in the Corporate, Securities and Finance section of the firm’s Corporate group. Jonathan assists clients with mergers and acquisitions, business formation, public and private offerings, venture capital and general securities law compliance. www.stoel.com / 801-428-6338
The National Law Review’s featured Business of Law Guest Blogger Meredith L. Williams of Baker Donelson Bearman Caldwell & Berkowitz, PC outlines some very real concerns for lawyers and law firms related to social media and state bar assocation guidelines. Ms. Williams also offers some very concrete Do’s and Don’t on how to address these concerns. Read on….
Today, social media encompasses a broad sweep of online activity, all of which is trackable and traceable. These networks include not only the blogs you write and those to which you comment, but also social networks. Each day brings new online tools and new advances introduce new opportunities to build your virtual footprint.
As a law firm, social media can help drive business initiatives and support professional development efforts. In basic business terms social media can be considered the least expensive form of large scale advertising. However, social media is not exclusively used for business by law firm employees. When it comes to expressing opinions about anything having to do with the law, firm employees are in a position that requires limitations and have certain limitations. Statements in public forums may inadvertently create an attorney-client relationship, and they may also violate the rules prohibiting law firm advertising. The wrong communication can be construed as exposing firm or client secrets; invasion of privacy and defamation; trademark violations; and may even lead to wrongful termination claims. Therefore, a law firm must attempt to provide reasonable guidelines for online behavior by members of the firm.
The following are five (5) ethical areas that all law firms should address when drafting internal social media policies. These can also be utilized by law departments when dealing with lawyer and non-lawyer employees. All of these rules are simply an extension of model rules of professional conduct & state rules of ethics. The over arching principles should remain the same as new social media sites and technologies emerge.
Advertising (Model Rule of Professional Conduct 7.2)
Marketing and advertising are key functions for any business survival. However, lawyers, especially in law firms, are held to a higher standard when advertising through electronic means. Model Rule of Professional Conduct 7.2[1] states a lawyer or law firm may advertise through written, recorded or electronic means. This includes all social media sites.
Quick Reference
Do
Have any personal or professional social media site as desired.
Use appropriate disclaimers as needed.
Do NOT
Use the organization’s name or email address on a personal site unless using the appropriate disclaimers.
Use the organization’s assets to update personal sites.
Example: A law firm creates a site on Facebook, MySpace, LinkedIn, Twitter, etc. using the firm name. Is this advertising?
Example: An employee of a law firm uses the firm name or firm email address on their personal Facebook site. Is this advertising?
State ethics boards consider the true crux of the advertising issue to be not who creates the site or the intent of the site but rather whether or not the site can be considered to be used for professional use. If being used for professional use, social media presence and communication can be considered to fall within the advertising rules.
Below are a few guidelines to include in firm policies to teach your employees (lawyers and non-lawyers) how not to create a professional site unless intended.
Employees should not associate the firm name or firm email address with the site unless it is intended for professional use. This includes stating they are an employee of the law firm.
Do not use firm assets to update personal sites. This includes any law firm owned laptop or computer, I-Phone or blackberry, firm IP address and email address. Using the firm email address implies the employee is acting on the firm’s behalf.
Create an advertising disclaimer to help employees specifically state their use is personal or professional.
This subject is difficult to approach with employees. Many will argue it is the same as verbally telling someone they work at a specific law firm. However, state boards have compared the online activity to a law firm website vs. verbal communication. The best approach is helping employees understand how not to blur the lines of professional/ personal sites for their own protection. As an employer, you want employees to continue using social media sites to broaden and help promote the firm brand. However, you only want them to do it in the most ethical way.
Attorney-Client Relationship (Model Rule of Professional Conduct 1 Series)
The attorney-client relationship is one of the oldest legal ethical standards. It creates a certain set of duties the lawyer owes the client. The model rules of professional conduct set forth a series of guidelines that help regulate the creation and existence of this important relationship. In the electronic world, especially when utilizing social media, the important issue is whether any electronic communication creates an attorney-client relationship inadvertently.
Quick Reference
Do
Post non-legal comments, blogs, etc. on any personal or professional site.
Use appropriate disclaimers as needed.
Do NOT
Post legal advice.
“Friend” anyone on a professional site unless previously corresponded or known.
“Friend” a Judge on a professional site.
Example: A lawyer of firm ABC is blogging on a social media site regarding new tax laws. A non-client comments to the blog inquiring about his specific tax situation. The lawyer in turn comments again discussing how the new tax laws apply to the non-client. Has an attorney-client relationship been created?
Law firms presently use disclaimers for emails and firm websites to verify no implied relationship is created. But how do we instruct employees to this standard when social media sites are interactive by nature? Below are a few key policy guidelines to help employees navigate this difficult area.
Employees should never post legal advice. This does not mean employees cannot comment or post to social media sites. It only relates to publishing or posting that could be construed as legal advice or opinion. If the subject matter is related to a legal or ethical situation, attorneys and staff may only discuss the legal standards but not apply those standards to any particular fact situation.
Firms should provide a disclaimer for employees to utilize when posting or commenting on professional social networking sites.
When using social networks with firm e-mail and professional identification, employees should not “friend” anyone they do not know and/or with whom they have not previously corresponded.
Some states have even gone so far as to also state that lawyers and judges cannot be “friends” on any professional social media sites. State ethics rules should be consulted prior to drafting any policy.
Client Confidentiality (Model Rule of Professional Conduct 1.6)
Client confidentiality and business privacy are two of the largest concerns of employers when dealing with social media communication. Generally, a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. In addition, privacy of the organization, the business processes, the firm brand and the IP of the firm are key for business continuity.
Quick Reference
Do
Discuss job generically
Avoid uncontrolled forums.
Be respectful of other’s and the company’s privacy.
Get approval when responding to negative requests.
Do NOT
Discuss job specifics.
Use the client’s name.
Disclose specifics related to the business.
Disclose confidential information.
Upload law firm contacts onto a social media site.
Example: A lawyer begins discussing a case he is handling on his personal Facebook blog. Although not referencing the client name, details of the case are discussed. Has the client confidentiality been broken?
Example: A law firm employee tweets about a firm staff meeting discussing salary and new hires. Has the privacy of business been destroyed?
Law firms must address confidentiality and privacy standards in social media policies. In addition, consequences for breaking these standards should also be detailed. Below are a few policy considerations to navigate this area.
Employees should never use a client’s name unless written permission has been received.
Employees should never disclose confidential or private business information. Sharing this type of information, even unintentionally, can result in legal action against the employee, the firm, and/or the client.
Outside the workplace, rights to privacy and free speech protect online activity conducted on personal social networks used with personal email addresses. However, what is published on personal online sites should never be attributed to the firm and should not appear to be endorsed by or originated from the firm.
Employees should avoid forums where there is little control over what is known to be confidential information. In the world of social networking, there is often a breach of confidentiality when someone emails an attorney or posts a comment congratulating him/her on representation of a specific client or on a specific case.
Respect the privacy of other employees and of the opinions of others. Before sharing a comment, post, picture, or video about a client or other employee through any type of social media or network, his/her consent is not only a courtesy, it is a requirement.
Get Marketing/ PR departments involved when responding to certain inaccurate, accusatory or negative comments about the firm or any firm clients.
Expertise (Model Rule of Professional Conduct 7.4)
Quick Reference
Do
Allow recommendations.
Review and monitor all recommendations carefully.
Edit or hide recommendations as needed to remove any verbiage that states you are “better”, “the best”, “expert”, “specialized” or “certified”.
Do NOT
Be false or misleading in online credentials.
Use the words “better” or “the best” in credentials or when recommending others.
Use the verbiage “expert”, “specialist” or “certified” to describe experience unless certified by an organization that is accredited by the ABA or the state bar.
Many lawyers are considered experts or specialists by their peers in select areas of law. However, using the expert designation can only be done with appropriate approval. Model Rule of Professional Conduct 7.4 generally states that a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. In addition, a lawyer may promote the engagement in specific areas of practice. However, a lawyer shall NOT state or imply that a lawyer is an expert or a certified specialist unless the lawyer has been certified by an organization that is accredited by the ABA or the state bar.
This model rule affects the use of credentials and recommendations on social media sites. What are the key areas to include in law firm policies?
Employees should never be false and misleading in online credentials. All employees should maintain complete accuracy in all online bios and ensure no embellishment.
Recommendations should be used carefully. Employees should review all recommendations created for them for any embellishment (i.e. use of the words better or best) expertise, certification or specialization listing. Edit or hide recommendations as needed.
Employees should not include the words “expert”, “certified”, or “specialized” in their credentials unless authorized to do so.
Expertise and specialization is heavily regulated at the state level. Some states have gone further in their restricted verbiage. State rules of ethics should be reviewed prior to any policy drafting.
General Communications (Model Rule of Professional Conduct 7 Series)
The final social media ethics concern revolves around general law firm and lawyer communication. In personal and especially professional communication, all communications must be truthful and accurate.
Quick Reference
Do
Credit appropriately
Fact check
Spell & grammar check
Correct errors promptly
Be transparent
Follow firm policies
Obey the law
Do NOT
Personally attack, become involved in an online fights or hostile communication.
Solicit or use commercial speech. The content must be informative only. Nothing should propose a commercial transaction
Law firms and law departments should consider the following general policy guidelines when drafting social media policies.
Identify all copyrighted or borrowed material with citations and links. When publishing any material online that includes another’s direct or paraphrased quotes, thoughts, ideas, photos, or videos, always give credit to the original material or author, where applicable.
Ensure material is accurate, truthful, and without factual error prior to posting.
Spell and grammar check everything.
Correct any mistakes promptly.
When participating social media sites in a professional manner, disclose identity and any firm affiliation. Never use a false name, alias, or be anonymous. Many courts have looked poorly on law firms and lawyers using alias names while on social media sites.
Follow all firm policies and procedures regarding online communications. Be respectful and do not make statements that are defamatory; racially, sexually, or otherwise insensitive or offensive; or otherwise improper or likely to conflict with the interests of the firm, its employees, clients, affiliates and others, including competitors.
Follow the site’s terms and conditions of use.
Do not post any information or conduct any online activity that may violate applicable local, state or federal laws or regulations.
Avoid personal attacks, online fights, and hostile communications.
Employees should never solicit or use commercial speech. Employees should not use a site as a way to directly solicit business for the firm. While a blog itself is not subject to the limitation on commercial speech, the content of a blog can be. The content must be informative only, and nothing in the content should propose a commercial transaction or be for the purpose of directly gaining a commercial transaction.
Conclusion
As discussed in this article, there are many ethical considerations when law firms and their employees decided to use social media sites. Similar to email emerging as the main form of business communication ten (10) years ago, social media is now the communication wave of the future. This new format is how the next generation of leaders presently lives and communicates day to day. The legal community must embrace the new technology and the opportunity to educate employees.
[1] Model Rules of Professional Conduct are professional standards that serve as models of the regulatory law governing the legal profession. However, each state board of professional responsibility has additional or supplemental states rules of ethics. State rules should be considered prior to policy drafting.
Meredith L. Williams is Baker Donelson’s Director of Knowledge Management. Although trained as a lawyer, she is not actively engaged in the practice of law. Instead, she oversees BakerNet, the Firm’s industry-leading intranet, and coordinates strategic growth on behalf of the Firm in knowledge management, competitive intelligence and technology. Ms. Williams is widely recognized as a leading authority in knowledge management issues for the legal field, and is a frequent presenter and author on knowledge management and competitive intelligence.
Ms. Williams is a member of the Association of Women Attorneys and the American, Tennessee and Memphis Bar Associations. In addition, Ms. Williams is Conference Vice President for the International Legal Technology Association 2010-2011. She is a recipient of the Dean’s Distinguished Service Award from the University Of Memphis Cecil C. Humphreys School Of Law for her volunteer work. 901-577-2353 / www.BakerDonelson.com
It’s football season, so apparently it’s time to trot out the old adage about the best defense being a good offense. This time in the ever-lasting Barbie vs. Bratz fight that we’ve reported on most recently here.
According to an article in Law.com, defendant MGA Entertainment, Inc. (the Bratz company), has filed a new counterclaim against Mattel (Barbie’s company) claiming racketeering and theft of trade secrets in connection with an alleged corporate espionage ring.
Among the claims is that Mattel executives used fake business cards to gain access to private toy showrooms of competitors. Those actions, according to MGA, allowed Mattel to assemble an “unparalleled library” of competitors’ plans and products, including products not yet on the market.
Mattel’s lawyers are understandably dismissive, calling MGA’s filing “second-rate tactics by desperate lawyers” and indicating that the counterclaim won’t survive the pleading stage.
At first blush, although styled a counterclaim, it’s hard to see how these counterclaims relate to the case at hand concerning MGA’s stealing the idea for Bratz dolls from Mattel.
The second suit alleges that, from February through May, Facebook transmitted referrer information to advertisers about users who clicked on their ads. It alleges violations of the federal Electronic Communications Privacy Act and Stored Communications Act as well as California computer privacy and unfair competition laws and common law claims of breach of contract and unjust enrichment.
Peeled began marketing its products under the marks “Peeled,” “Peeled Fruit,” and “Peeled Snacks” as early as 2004. Since that time, Peeled’s marks have received extensive coverage in television and print media, including receiving a coveted spot on Oprah’s O List as one of Oprah’s favorite afternoon snacks, and receiving the 2008 “Best of Food” award from Health Magazine. Peeled registered the mark “PEELED SNACKS” on January 10, 2006 with the United States Patent and Trademark Office.
Peeled alleges that Peeled Fruit not only knew about Peeled’s use of the marks, Peeled Fruit “adopted the trademarks with the intent to trade and capitalize on the goodwill generated by Peeled, Inc.’s extensive and widespread use of its trademarks, as well as its extensive sales, advertising and consumer acceptance and recognition.” Peeled argues that the similarities between the products sold by both companies make the shared use of the marks likely to cause confusion, mistake and deception among consumers.
