Managing Your Corporate Presence Online

Transcription

1 Managing Your Corporate Presence Online An Overview of Key Considerations, Strategies, and Risks October 8,

2 Browse the Internet, Enter a Contract, Go to Arbitration Enforcing Arbitration Provisions in Online Terms of Service Jed P. White Partner, Class and Derivative Actions 2

3 Benefits of Arbitration Median life of case Decreased attorney s fees and expenses Confidentiality Arbitrator selection Limited discovery Finality 3

4 Two Steps to Ensure Enforceability 1. Was an agreement to arbitrate ever formed? Depends on whether the user assented to the terms of use 2. If yes, are the terms of agreement enforceable? Depends on whether arbitration provisions are unconscionable 4

5 Whether User Assents to Terms of Use Two scenarios in the digital realm: Clickwrap agreement: User must demonstrate assent by clicking an icon. Browsewrap agreement: User can continue to use the website without visiting the page hosting the arbitration provision. 5

6 Browsewrap: User Assent Not Found In re Zappos.com Inc. (D. Nev. Sept. 27, 2012) 6

7 Browsewrap: User Assent Not Found Nguyen v. Barnes & Noble (9 th Cir. 2014) 7

8 Browsewrap: User Assent Not Found Savetsky v. Pre-paid Legal Services, Inc. (N.D. Cal. Feb 12, 2015) 8

9 Browsewrap: User Assent Not Found Savetsky v. Pre-paid Legal Services, Inc. (N.D. Cal. Feb 12, 2015) 9

10 Clickwrap: User Assent Generally Found Gillette v. Uber (N.D. Cal., June 9, 2015) 10

11 Clickwrap: Can t Be Confusing Sgouros v. Trans Union LLC (N.D. III., Feb. 5, 2015) 11

12 Hybrid: User Assent Found Nicosia v. Amazon (E.D.N.Y. Feb. 4, 2015) 12

13 What the Arbitration Provision Says Unconscionability issues Lack of mutuality Arbitrator-selection clause Cap on damages Fee-shifting clause Inconvenient forum 13

14 Key Takeaways Developing area of law Depends on design and content of website Conspicuousness and placement of Terms of Use link Tension with customer experience 14

15 Advertising on the Internet Christopher J. Kunke Associate, Technology, Entrepreneurial & Commercial Practice 15

16 Overview of Topics FTC Regulation of Deceptive Advertising Online Behavioral Advertising 16

17 FTC Regulation of Advertising Generally FTC Act prohibits any unfair or deceptive advertisement. Elements of a deceptive advertisement: Misleading representation, omission or practice; Mislead customer acting reasonably; and Material 17

18 FTC.com Disclosures Guide Use disclosures to avoid deceptive advertising Disclosures should be clear and conspicuous. Considerations: Proximity Prominence Distractions Repetition Multimedia Understandable 18

19 Proximity Hyperlinking 19

20 Proximity Mobile Devices * Usage requires a $9.99 monthly service fee. 20

21 Understandability 21

22 Penalties FTC Cease and Desist Order/Consent Order Civil penalty Injunction Civil lawsuits (by FTC) Refunds Actual damages 22

23 Online Behavioral Advertising (OBA) Advertiser Publisher Advertising network Connects advertisers to publishers (e.g. Google Display Network) Uses cookies to identify consumers on network sites Collects and combines browsing data Serves ads to consumer based on browsing data May share consumer browsing data with advertiser 23

24 OBA Self-Regulation FTC Self-Regulatory Principles for OBA (Feb 09) Digital Advertising Alliance (DAA) Self-Regulatory Principles for OBA (Jul 09) DAA Supplement for Mobile Environment (Jul 13) 24

25 How to Comply Publisher Require advertising network to agree to comply with DAA Principles Add separate link to web page or portion of Privacy Policy that discloses OBA takes place on your web site Add to Privacy Policy that you adhere to DAA Principles 25

26 How to Comply Advertiser Ask marketing department whether you receive browsing data from advertising network (or others) If you do not, DAA Principles do not apply If you do, comply with DAA Principles 26

27 DAA Principles Transparency (on web site and on ad) Choice (special rules for sensitive info) Reasonable security Limited data retention Consent to changes in practices AdChoices 27

28 OBA Enforcement DAA enforcement Public statement on issue and resolution (Yelp, Buzzfeed, etc.) Referral to FTC Lane v. Facebook (2010) $9,500,000 settlement 28

29 Key Takeaway Disclose Disclose 29

30 Social Media Risks for Your Organization Nicole D. Gates Associate, Technology, Entrepreneurial & Commercial Practice 30

31 Social Media Risks Third Party Vendors Purchases Made Through Social Media Ownership of Client List and Social Media Content Human Risk Consequences Questions to Consider 31

32 Third Party Vendors Vendors may manage/analyze social media presence Contracts require compliance with privacy and security laws Choose the right vendor No more access than necessary Points of transfer = vulnerable 32

33 Purchases Made Through Social Media Buy buttons on Twitter, Google, Facebook, Pinterest enable purchasing directly through app How is customer payment data shared and stored? 33

34 Who Owns Your Client List and Those Blog Posts? Is your client list confidential or valuable? Traditionally trade secret Are employees blogging or tweeting? 34

35 Who Owns your Client List and those Blog Posts? (continued) Cellular Accessories For Less, Inc. v. Trinitas, LLC (C.D. Cal 2014) Whether LinkedIn contacts are trade secrets was issue left open for further fact finding PhoneDog v. Kravitz (N.D. Cal. 2011) Possible trade secret misappropriation for taking Twitter account Sasqua Group, Inc. v. Courtney (E.D.N.Y. 2010) Client information available on internet is not trade secret Consider employee policies re: account and content ownership, protection of confidential and customer information 35

36 Human Risk Unintended disclosures vs. intended disclosure 1 in 7 employees would sell a corporate password for as little as $150 Tech solutions Employee policies 36

37 Account Access & Password Protection Who is responsible for your passwords/accounts? Ensure access to all company accounts Are you prepared for a breach of your social media accounts? Ability to change passwords 37

38 Consequences PR problems FTC enforcement State consumer protection laws Class actions Insurance coverage 38

39 Questions to Consider What types of customer PII are collected via your social media use? Are you following FTC guidelines? #sponsored Are you compliant with social media platform terms? Promotions and Giveaways Commercial use restrictions User data 39

40 Thank you! Jed P. White Christopher J. Kunke Nicole D. Gates

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