Social Media

On September 5, 2017, the Grand Chamber of the European Court of Human Rights (“ECtHR”) issued its ruling on appeal in the case of Bărbulescu v. Romania, concerning alleged unlawful workplace monitoring of Mr. Barbulescu’s private communications.

Overturning the ECtHR’s prior ruling in the case (covered by Inside Privacy here), the Grand Chamber held that Romanian courts had not adequately and fairly weighed up the competing interests of Mr Barbulescu and his employer.  That defect of justice meant that Romania had failed to proactively protect Mr Barbulescu’s right to privacy, as required by its membership of the European Convention on Human Rights.

The Grand Chamber held that Mr Barbulescu’s right to privacy extended to his workplace, despite his private use of a work computer constituting a breach of his rules of employment.  The Grand Chamber held that while privacy in the workplace can be restricted “as necessary,” “an employer’s instructions cannot reduce private social life in the workplace to zero,” since the right to privacy does not necessarily depend on an individual’s reasonable expectations, and can be enjoyed in public and in the workplace, notwithstanding prohibitions and warnings given to the individual.  A fulsome balancing exercise was therefore required in cases such as these.

The Grand Chamber underlined that provided national courts undertake an adequate balancing exercise, they have some discretion as to the actual result (i.e. whether the employer’s or employee’s rights prevail in a given case).  Similar discretion is also enjoyed by national legislators and constitutions when setting underlying rules on workplace privacy, provided such rules – and a means to enforce them – are actually in place.

Nevertheless, the ruling states that workplace monitoring must always be limited to what is necessary for a legitimate purpose, and should be accompanied by a range of safeguards, normally including prior notice to employees – particularly when the content of communications is concerned.
Continue Reading New Ruling in European Employee Monitoring Case

The FTC recently announced that it reached a settlement with two social media influencers, Trevor Martin and Thomas Cassell, for deceptively endorsing their owned and operated online gambling service “CSGO Lotto” without disclosing that they were the owners of the site, as well as paying other well-known social media influencers to promote the site without requiring them to disclose the payments in their posts. In addition, the FTC issued warning letters to 21 out of the 90 social media influencers it had sent educational letters to earlier this year, citing specific social media posts that they felt still failed to “clearly and unambiguously” disclose a material connection between the influencers and the brands or products they were promoting. The letters asked them to respond in writing, by September 30th, advising staff of whether they do, in fact, have a material connection with the brands/products cited in the letters and, if so, describing how they will ensure such relationship is clearly disclosed going forward. Finally, the FTC updated its guidance on its official Endorsement Guidelines with additional examples featuring common social media advertising mechanisms such as Instagram, Snapchat, and Facebook.
Continue Reading FTC Reaches Settlement with Influencers; Issues Updated Guidance

Twenty years ago, the Supreme Court was faced with the question of whether a federal statute that imposed a content-based restriction on online speech violated the First Amendment. That case, Reno v. American Civil Liberties Union, marked the first instance in which the Supreme Court weighed in on the role of the Internet in the marketplace of ideas, and decided affirmatively that speech on the Internet is afforded protection under the First Amendment.

Over the course of the twenty years following Reno, the Internet has changed in size, shape, and substance. In 1997, about 40 million people used the Internet and “most colleges and universities,” “many corporations,” “many communities and local libraries,” and “an increasing number of storefront ‘computer coffee shops’” provided the public access to the Internet. Today, at least 280 million Americans use the Internet, 102 million U.S. households have in-home broadband Internet access, and 225 million Americans access the Internet through their mobile device. In 1997, popular uses of the Internet included e-mail, listservs, newsgroups, chatrooms, and the “World Wide Web” (which then consisted of around 100,000 websites), but today, social media dominates, with an estimated 81% percent of Americans participating.

Despite the seismic changes to the Internet since the Reno case was decided, the Court’s views on online speech have remained largely consistent, albeit more tailored to the times. Recently, in Packingham v. North Carolina, the Court struck down a content-neutral state law that restricted sex offenders’ access to “social networking” websites, finding that it violated the First Amendment. The significance of the Packingham opinion, particularly in its partial extension of Reno, goes beyond the four corners of the Court’s holding.Continue Reading Reno at 20: The Packingham Decision and the Supreme Court on Online Speech

On Monday, a panel of the Ninth Circuit unanimously ruled that Section 230 of the Communications Decency Act (“CDA”) protected Yelp from liability relating to an allegedly defamatory user-generated review.  In doing so, the Court rejected several attempts by the Plaintiff to plead around the CDA’s broad immunity provisions by accusing Yelp of playing a

On May 12, 2016, EU Advocate General (“AG”) Manuel Campus Sanchez-Bordona issued an Opinion in Case C-582/14 Patrick Breyer v Germany, which is pending before the EU’s highest court (the Court of Justice).  The Court is not legally bound by this Opinion, but in practice often follows the opinions of its Advocate Generals in its rulings.  See here for the German language version; an English version is awaited.

The AG essentially considered that dynamic ‘IP’ addresses qualify as personal data, even if the website operator in question cannot identify the user behind the IP address, since the users’ internet access providers have data which, in connection with the IP address, can identify the users in question.

The AG went on to consider that the collection and use of IP address data, for the purpose of ensuring the functioning of the website, might be justified on the basis of the “balancing of legitimate interests” test under the EU Data Protection Directive 95/46/ EC (the “Directive”), notwithstanding more restrictive national rules in Germany.

If followed by the Court of Justice, the Opinion will have broad implications for EU data protection law, even the forthcoming General Data Protection Regulation (the “GDPR”).  In particular, the Opinion will be relevant for any industries that handle de-identified personal data, and re-confirms the limits that national legislators need to respect when deviating from EU-level data protection legislation.Continue Reading EU Advocate General Considers Dynamic IP Addresses To Be Personal Data

Senators Feinstein (D-CA) and Burr (R-NC) introduced legislation today that would impose reporting duties on entities that “obtain[] actual knowledge of any terrorist activity.”  The bill applies to entities “engaged in providing an electronic communication service or a remote computing service to the public,” which includes social media companies.  Those entities are required to report

Last Friday, the National Labor Relations Board (“NLRB”) ruled that two employees of a sports bar and restaurant were unlawfully discharged for their participation in a Facebook discussion criticizing their employer.  In the Facebook discussion that prompted the firings, a former employee complained in a status update that she owed more taxes than expected because of withholding mistakes by the employer.  The employee commented on the status, “I owe too.  Such an asshole,” and was discharged.  A second employee, who “liked” the former employee’s status, was discharged as well.

Section 7 of the National Labor Relations Act provides, in relevant part, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”  At issue in this case was not whether the employees’ Facebook activity was “concerted” or whether the employees had a statutorily protected right to engage in a Facebook discussion about the employer’s tax-withholding practices.  Rather, the case centered on whether, as a result of their actions on Facebook, the two employees adopted the allegedly defamatory and disparaging statements contained in the former employee’s Facebook status and therefore lost the protection of the Act.
Continue Reading NLRB Finds Employee’s Facebook “Like” and Comment Protected By Labor Law

In a closing letter declining to bring enforcement action against shoemaker Cole Haan, FTC staff stated that it believes “Pins” on Pinterest featuring a company’s products can constitute an endorsement of those products, and that if the pins are incentivized by the opportunity to win a significant prize in a contest, contestants should be instructed to label their pins appropriately. 

The closing letter follows an investigation into whether Cole Haan violated Section 5 of the Federal Trade Commission Act in connection with its “Wandering Sole” Pinterest Contest.  Section 5 of the FTC Act protects consumers from “unfair or deceptive acts or practices.”  Pursuant to its Section 5 authority, the FTC requires disclosure when there exists a connection between a product endorser and the seller of the advertiser product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience). 

For a chance to win a $1,000 shopping spree, Wandering Sole contestants were instructed to create Pinterest boards that included five re-pins of shoe images from Cole Haan’s Wandering Sole Pinterest Board.  According to the FTC, these re-pinned images featuring Cole Haan shoes constituted product endorsements that were “incentivized by the opportunity to win” a shopping spree, therefore creating a material connection requiring disclosure.  The contest rules directed contestants to caption each pin with “#WanderingSole,” but the FTC determined that the hashtag was not adequate in communicating the material connection — i.e., financial incentive — between Cole Haan and its contestants.  The FTC concluded that “entry into a contest to receive a significant prize in exchange for endorsing a product through social media constitutes a material connection that would not reasonably be expected by viewers of the endorsement.”Continue Reading FTC Cole Haan Closing Letter: Encouraging Pinterest “Pins” in a Contest Can Trigger Endorsement Guidelines