Professional Documents
Culture Documents
Socially Aware:
The Social Media Law Update
IN THIS ISSUE
If your company has established a presence on Facebook, it 5 Proposed German Bill Would
Prohibit Employers From
has presumably “click-accepted” the terms and conditions set Using Social Networks for
forth in Facebook’s online Terms of Use. But has your company Background Checks
actually reviewed Facebook’s Terms of Use? Is your company
aware of its obligations under Facebook’s Terms of Use? In 5 Facebook Quietly Buys Up
Social Networking Patents
this issue of Socially Aware, we take a look at some of the
key provisions in Facebook’s Terms of Use. We also discuss
a recent FTC settlement against a PR company that had its
employees post positive iTunes reviews of its clients’ iPhone Editors
apps; Facebook’s launch of its location-based “Facebook John Delaney
Places” functionality; and Facebook’s purchase of a patent Gabriel Meister
portfolio from social networking pioneer Friendster. Further,
we summarize the recent Crispin decision addressing whether Contributors
private messengering services provided by Facebook and Kara Alesi
MySpace are protected under the Stored Communications Act, Maddy Batliboi
and we highlight a proposed German bill that, if adopted, would Matt King
prohibit employers from using social networks for background Leo Lipsztein
checks. Finally, we identify the Top Ten Corporate Facebook Katherine Nolan-Stevaux
Karin Retzer
Pages—is your company’s Facebook Page on the list?
Jane Kim (Summer Associate)
Morrison & Foerster Social Media Newsletter Vol. 1, Issue 3 September 2010
Posting Positive
Starbucks 13,964,386 fans
Skittles
9,914,641 fans
9,613,787 fans
Functionality
The consent order requires Reverb to the Center for Digital Democracy has
remove the employee-posted reviews of stated that it will be raising the latter issue
its clients’ products from iTunes and to with the FTC.
On August 18, 2010, Facebook rolled out
refrain from misrepresenting “the status Facebook Places, a new location-based Interestingly, Foursquare implemented
of any user or endorser of a product feature that allows Facebook users to several privacy-related measures prior
or service, including, but not limited to, “check in” at their current physical location to Facebook Places’ launch, including
misrepresenting that the user or endorser and “tag” friends who are there with them. by providing an intuitive grid of privacy
is an independent user or ordinary The feature also gives Facebook users defaults on its site, which measures have
consumer of the product or service.” access to a “Here Now” function that been well received in the trade press.
Reverb, however, will not be penalized permits users to determine what other
monetarily. Given the FTC’s interest in location
Facebook members are at the same
information (for example, a panel
In October 2009, the FTC issued location at or around the same time.
discussion on mobile “location-based
comprehensive “Guides Concerning the Location-based social networking has services” was held during the FTC’s 2008
Use of Endorsements and Testimonials attracted many start-up companies, such Town Hall meeting on mobile marketing),
in Advertising” (16 CFR Part 255) that, as the immensely popular Foursquare, and indications that the FTC may require
among other things, target endorsements which is Facebook Places’ main opt-in consent for the use of precise geo-
by reviewers of products and services who competitor, as well as Google Latitude, location (for example, see staff comments
fail to disclose financial compensation or Gowalla, loopt, and brightkite. Still, on pages 43 and 44 of the FTC Staff
other consideration received directly or concerns have already been raised over Report: Self-Regulatory Principles For
indirectly from the seller of the product or Facebook Places’ privacy implications. Online Behavioral Advertising), we
service in question. The charges against anticipate further developments in privacy
Reverb are the first to be brought under Facebook has sought to address privacy
measures for location-based social
these Guides. More information about the concerns, setting Facebook Places’ default
networking in the future.
Guides can be found at the FTC’s website. setting for visibility of a user’s location to
2
Morrison & Foerster Social Media Newsletter Vol. 1, Issue 3 September 2010
Caveat Emptor:
the ruling also suggested that postings untangling the complex web of policies
to a social media service’s “wall” would and rules that often comprise such
be entitled to SCA protection as well, so
long as access to the wall is restricted to
Key Provisions agreements. Indeed, the Facebook
SRR is merely one of twelve documents
invitees only. in Facebook’s constituting Facebook’s online contractual
3
Morrison & Foerster Social Media Newsletter Vol. 1, Issue 3 September 2010
regime (which, if printed out, spans in which case the license appears to user information, and (c) post a privacy
more than 33 pages). The graphic below continue in perpetuity. policy explaining what information is being
attempts to show how Facebook’s twelve collected and how it will be used.
governing documents interrelate.
Facebook May Unilaterally Modify the
SSR’s Terms at Any Time [Facebook
1 SRR, § 13.1]: Facebook reserves the
Terms of Use
(“Statement of right to change the Facebook SRR by
Privacy Policy
Rights and providing notice to users on the Facebook
Responsibilities”)
Site Governance Page, where it gives
users an opportunity to comment on such
changes. To keep abreast of changes
to the Facebook SRR, companies that
2 3 4 5 6 regularly use Facebook should check
Developer/
Payment Pages Advertising Promotions Facebook’s Governance Page from time
Platform
Terms Terms Guidelines Guidelines
Policies to time (or consider “Liking” the Page to
ensure receipt of notices of any changes).
4
Morrison & Foerster Social Media Newsletter Vol. 1, Issue 3 September 2010
Proposed
questions: How will information on
method and apparatus for connecting users
non-“professional” social networks that
in an online computer system based on
German Bill has been made “publicly available”—for
example, a photograph or status update
their relationships within social networks”
(U.S. Pat. No. 7069308). According to
Would Prohibit that a user has designated as viewable
by all users—be treated? And what if an
TheSocial, Facebook likely wants control
Employers From
of the patents to prevent imitation, and
item of content that was formerly “publicly
to give Facebook significant leverage in
available” on a social network is cached by
Using Social Google or another popular search engine,
and is later designated “private” by such
light of Google’s efforts to enter the social
networking space. The patents were
Background
originally appeared?
the acquisition of Friendster’s patent
Thomas de Mazière, the German Secretary portfolio is one of Facebook’s largest such
Checks of the Interior who is responsible for the
initial draft, stated, “If it turns out that an
acquisitions to date.
--------------------------------
The German government has approved employer rejected a candidate because of
a bill that would substantially amend the a private picture on Facebook, a fine can If you wish to review the earlier issues of
country’s framework data protection law, be imposed.” However, when questioned Socially Aware, please click here and here.
the Bundesdatenschutzgesetz (BDSG), how a candidate would evidence that the
expressly with regard to human resources employer used such information, he had Because of the generality of this newsletter, the
information provided herein may not be applicable in
data. Chancellor Angela Merkel’s coalition no answer. The draft bill is available (in all situations and should not be acted upon without
government had promised to revise the German) by following this link. specific legal advice based on particular situations.
The views expressed herein shall not be attributed to
BDSG following a wave of alleged corporate Morrison & Foerster or its clients.
breaches of employee privacy, including
©2010 Morrison & Foerster LLP | mofo.com