Google has previously admitted that it accidentally collected some open WiFi data. It is not exactly clear what Google was using the data for. If data is unencrypted, anyone using a WiFi network can see data used by others on that same access point. Is this legal? We will soon find out.

The  first class action against Google’s so-called data collecting has been filed by three attorneys from Oregon. The complaint alleges that the company violated Washington and Oregon privacy laws as well as the federal Electronic Communications Privacy Act.

The plaintiffs are seeking up to $10,000 per violation suffered by each class member plus other damages. See the complaint below.

Van Valin v Google Complaint

Reading the complaint, I have no idea why the plaintiffs believe that their data was collected by Google.  Granted, the plaintiff’s will have the opportunity during discovery to find out why and how their data was collected.  At this stage, it looks to me that the lawyers went fishing for two plaintiffs and found them.

It is unclear what type of damages the plaintiffs can hope to receive.  According to the Recorder,

federal law may not offer the damages that the plaintiffs are seeking. The Electronic Communications Privacy Act offers a safe harbor for some breaches if the collected information is publicly accessible, said Orrick, Herrington & Sutcliffe partner I. Neel Chatterjee. Companies have typically been protected too if they can prove they collected the data unintentionally.

One of the plaintiffs admits that her data was not encrypted. Where are the damages there?

As a publicity stunt, the lawyers may win.  However,  the case is premised on a weak legal basis and will likely be dismissed.

If you have any questions about privacy law in New York, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

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4. Facebook’s Law Department is Ready to Brawl over Requests for Information from a User’s Facebook Account
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Protecting intellectual property from a cyber attack is something that all companies need to be concerned about. Google recently released information about a targeted attack on their intellectual property and data that occurred in December, 2009. The attack came from China and according to Google, resulted in the “theft of intellectual property from Google.” Apparently they were not the only company that was under a cyber attacks. At least 20 other corporations were hit, including a law firm that was suing China.

Google explained the cyber attack as follows:

The route attackers used was malicious software used to infect personal computers. Any computer connected to the Internet can fall victim to such attacks.

E-mails were targeted at individuals in each company that were made to appear as that they were coming from other people at each company. They attempted to get their target to click on a link or attachment.

Potential Legal Consequences of a Breach

If your company has been subject to a cyber attack and data has been breached, your company may be subject to litigation. There have been an increase in the number of  lawsuits commenced by customers and clients whose data have been compromised. For example, there is currently a lawsuit in Pennsylvania against Heartland Payment Systems, which claims that the company waited to tell consumers about a data breach and failed to protect sensitive information.

Businesses also need to be aware of compliance laws such as Sarbanes Oxley when they lose the personal information of their customers.

Potential Legal Consequences of an Intellectual Property Breach

Cyber Attacks, like the one inflicted against Google, often attempt to steal Intellectual Property.  Trademarks, patents, copyrights and trade secrets, are big targets for cyber criminals.

What companies from selected industries can do to protect their data

• High-tech: Need to protect source code and engineering design documents.
• Banks and Financial Companies: Confidential customer information.
• Pharma and Bio-Tech: Trade secrets such as research and the manufacturing of drugs.

If you have any questions or if you wish to discuss this issue further, please don’t hesitate to contact me at The Law Office of Frederic R. Abramson at 212-233-0666.

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In early October, the FTC published its guidelines governing testimonials. The main purpose of these new guidelines is to protect the public from hidden endorsements.

Many bloggers are paid by advertisers to write about a product.  If you are a tech blogger and you were handed a shiny Droid phone by Verizon to blog about its new camera, you are now required to disclose that relationship.  The new guidelines  have  teeth, with fines of up to $11,000 for not disclosing payments. How are bloggers and advertisers able to protect themselves from an unwanted legal action?

ADVERTISERS AND BLOGGERS NEED A WRITTEN AGREEMENT

If you are an advertiser and you pay bloggers to review and report on your product and services, you must develop an agreement with the blogger that mirrors the guidelines of the FTC rules.  The agreement should:

• Prohibit them from  against making baseless claims about the service or product;
• Require the blogger to disclose the connection between the advertiser and the blog owner. A tech blogger must disclose in its review of the Droid smartphone that it received the Droid for free.

THE ADVERTISER MUST MONITOR THE WORK OF THE BLOGGER

• The advertiser should also set up a Google Alert,  follow the blogger on all social media and constantly review the blog posts to make sure that the blogger complies with the FTC rules.

MONITOR YOUR EMPLOYEES

• A company is also responsible for what their employees disseminate on social media.   Companies must have their employees disclose that they work for them in any reviews.  You can also prohibit your employees from reviewing any of your products.

BE TRUTHFUL

This may appear obvious, but both bloggers and advertisers now have an affirmative duty not to mislead or make a statement about the product that his untrue. Bloggers now have to perform due diligence about the product before posting.  Bloggers now must review the product in an unbiased manner.

What do you think of the new FTC rules?  Are they necessary?  How do you think they will be enforced?

The Law Office of Frederic R. Abramson drafts agreements between bloggers and advertisers.  For more information, contact me at 212-233-0666

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• The FTC Rules for Bloggers (bloggingot.com)

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Image via Wikipedia

Unhappy customers are a fact of life for small businesses.  In the past, if a customer was was not pleased about the Miso Black Cod he would simply kvetch to a hundred of his closest friends and never return (unless he was Larry David).

Web 2.0 has changed the way people complain.  Disgruntled customers now spend their time logging on to Yelp, Facebook and “Gripe” sites to express their feelings to the net citizens of the world.  A  poor review on Yelp could create losses of thousands of dollars.  If the review is defamatory, should you sue?

The New York Law Journal (pay wall) reports that the bar is very high for a company to win a defamation lawsuit against an individual. In Intellectual Art Multimedia v. Milewski, New York Supreme Court Justice Hon. Judith Gische recently ruled against the company in its Internet defamation lawsuit against a customer who posted negative comments on the Rippoff Report.

Intellectual Art runs the Swiss Finance Academy which operates a school of business. It sued a customer for defamation due to a negative review. Here is a sample of the alleged defamatory comments:

• “[t]hey tell you where the location is then a week before the program starts they change the location and say no refunds whatsoever.”
• “everything they taught was a “JOKE.”

Judge Gische decided that the “speech [was] merely an alleged statement about [the customer's] personal opinion about the quality of the services of the plaintiff (Intellectual Art).”  In addition, the judge ruled that on issues dealing with advocating on part of the consumer, courts are reluctant to stifle criticism of goods or services.

Conclusion

Don’t get me wrong,  small businesses can still sue a customer for defamation. If the remarks are more than criticism, contact a lawyer.  However, in this era of transparency, it is much cheaper to engage in business practices that foster trust than to start a  lawsuit.  Use Google Alerts and establish a Twitter account to monitor your brand.  If a customer is unhappy, ask him why. Companies such as Zappos built an empire on listening to their customers through social media.  So should you.

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BUSINESS

Google’s Eric Schmidt on What the Web Will Look Like in 5 Years http://bit.ly/2x56RV

Below is a 5 minute excerpt of his interview:

b

How a bored attorney built a web content empire http://bit.ly/1cthz8

MARKETING

How to Get More Leads from Speaking http://su.pr/232qN9 – today’s most effective lead generation and conversion tactic

Networking vs. Business Development: What’s the Difference? http://bit.ly/v8CWT

Does your brand tell a powerful story? http://bit.ly/4ib9rW

LAW:

Business Bloggers Beware: Posts Can Bring Lawsuits – http://bit.ly/33PFOo

What you need to know about Defamation and Web 2.0 http://bit.ly/28s58d

What’s in your Social Media policy? http://bit.ly/1zAMQQ

Is there more or less litigation? Dueling reports http://bit.ly/rwedd

Trend Watch: Fake/Parody Web Sites Create Legal Issues http://bit.ly/3NKsf7

Slump Sinks H-1B Visa Program http://bit.ly/EJdY8

How to Read a Privacy Policy http://bit.ly/1E7s0T

$1 Million Judgment for Online Libel | Decision http://bit.ly/133Z87

CULTURE:

Who killed Gourmet magazine? http://om.ly/UBuz

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5. Legal Reasons Why Your Company Should Have a Social Networking Policy

Internet Defamation Law is becoming an increasingly important problem. Bloggers and anyone else using social media need to be aware of what they post online.  There is a serious threat of what you post can result in litigation.

I recently reported that there has been a 216% increase in libel lawsuits against bloggers.  Courtney Love’s Twitter defamation case is not going away.

Yelp, the popular review site, has been at the center of the debate because people are using the service to write reviews that are untrue.

A $1 million judgment, including an injunction and costs was granted against a defendant who persisted in posting false and defamatory statements in online forums regarding his fraudulent transactions at the expense of an online company. (thanks @jdtwitt)

How do you know if a statement that is written online rises to the level of  Defamation?

Defamation is an invasion of the interest in reputation and good name of a living person, which holds that person up to hatred, contempt, ridicule, or shunned by others (William Prosser, Law of  Torts 737 (4th ed 1980). You can sue both an individual and a company for defamation. Libel is written defamation, slander is oral.  A defamation claim may also raise the issue of intentional infliction of emotional distress.

Publication: The statement must be disseminated to a third party before a lawsuit can be commenced.  What this means is that other people must be aware of the remark before you can claim that someone’s business interests are damaged.

If the conversation is in email form and only the sender and recipient are  involved in the conversation, there is no cause of action.   Section 230 of the Communications Decency Act generally protects online service providers from being sued as a result of defamatory postings by users.

Damages: You must prove that you have been harmed in some way.  There are some cases where you don’t have to prove damages.  They are:

• any remark about the unchastity of a women (sounds really antiquated)
• imputation of a crime or of a loathsome disease
• any statement about that person that affects his or her business reputation.

Before you race over to my office, you need to consider the following  issues to assess whether there are any defenses :

• Is the work a parody? “Fake” Web sites and social media profiles appear to be a developing trend.
• Is the person a alive, a public figure, private person or politician?
• Is there anyone else objected to the post?
• Are the statements made wrong?
• Has anyone changed any of the content?
• Is the statement or any of the alleged remarks true?
• Is the remark accurate?
• Has the publisher of the statement checked whether the remark was accurate?
• When was the statement made? You must be aware of the statute of limitations.
• Does the person who you would like to sue have insurance?  Without a deep pocket, your judgment is worthless.

What should you to protect yourself from Defamation lawsuits if you are a blogger?

If you are a content provider or blogger, you may find yourself facing a defamation lawsuit even if you did not write the remark.  For example, you may be liable for not reviewing the material posted on your site.  I would recommend that you purchase  E&O insurance.  You should also check your homeowners insurance policy, as many policies provide  coverage for defamation related lawsuits.

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I have recently started reading The Magic of Thinking Big, by David J. Schwartz. The book, written in 1959, has been getting a lot of ink lately because his ideas are classic. Business thought leaders such as Seth Godin and Tim Ferriss cite the book as required reading.

Mr. Schwartz suggests that we should practice giving value.

• Practice adding value to things. Look for ideas to make things worth more
• Practice adding value to people. As you move higher and higher in the success world, more and more of your job becomes people development. Look for ways that you can help others. Take a look at your contacts and find ways to connect them.
• Practice giving value to yourself. You need to ask yourself everyday what can you do to make yourself more valuable today. With social media, you can make yourself more valuable by writing a blog.

Let me know of your action steps towards providing more value.

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Social Media is quickly transforming how people are communicating with each other.  It should come as no surprise that employees are now looking to connect with their bosses on Facebook.

The New York Law Journal (under a pay wall) reports today that the innocuous friend request is really a Trojan horse which contains the hidden danger of litigation.  Should bosses accept Facebook ”Friend” requests from an employee? I think they should, with certain caveats.

The article cites Michael Schmidt, Esq. of Cozan O’Conner, who argues

“a manager is bound to learn things about an employee that they don’t already know… when the manager learns of some personal attribute through the site, the worker now has the opportunity to argue that any later adverse employment decision was based on this personal information.”

Here are some other potential issues:

• The employer views the profile of an employee and notices that the employee has different religious or political view. This may influence the employer or manager when it comes to time to make a promotion.
• If an employee makes defamatory remarks against an employee or the company, the employer would then have the duty to investigate the incident.

Shanti Atkins, an attorney and President of ELT. Inc thinks that employers should simply ban employees from accepting “friend requests.”

I think that Ms. Atkins approach is naive and could be business suicide.  Chris Brogan, speaking in New York last week at the Trust Summit, argued that companies need to listen, collaborate and learn to survive.  Companies cannot collaborate with their employees without engaging with them in social media.  Moreover, if an employee or employee is doing something improper, such as writing something racist, wouldn’t it be wise to investigate it immediately rather than ignore it?

I agree that there is a risk for potential litigation as people are moving to communicating in written form that is public.  There is a paper trail that can be used against anyone for a number of reasons, including litigation.

What companies need to do is have a social media policy drafted that spells out the specifics of what everyone can do when they engage on social networking sites.  This new area of transparency creates legal issues. How your company deals with transparency may be the deciding factor of whether it can compete in this new world.

What do you think?

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There is a growing trend for companies to store information at a remote location, or a “cloud.” Whether you are using Google Docs or have remote servers physically located elsewhere, if you are collaborating with other people and information is not stored on your hard drive, you are probably “cloud computing.”

So who is effected by the move to Cloud Computing?  The move could impact companies such as software companies, internet service providers and hardware manufacturers. Companies in each of these industries will face a big change if more people turn to cloud computing to store their data.

Cloud computing is a terrific alternative for companies who have people working together on a project at different locations.  Because the costs are relatively low, cloud computing makes it easier to conduct business.  However if your business is engaged in posting user information online, you should be mindful of privacy and litigation issues.

Be aware of the types of documents that you post in the cloud and how it can be used by others. Businesses should be especially concerned about posting:

• Business presentations
• Employee work and health information
• Tax and accounting records
• Schedules and Calendars
• Contracts
• Trade Secrets
• Confidential Consumer Information

If your company becomes involved in a litigation, your opposing counsel may ask your cloud hosting provider for access to company records. A business engaged in cloud computing must know that privacy laws vary depending on the physical location of your provider.

The liability and responsibility for any breach of privacy claims is something that a business needs to protect itself against. Companies can limit liability by having a properly drafted document retention policy.

For more reading about legal issues in cloud computing for lawyers, read Niki Black’s article in the Lawyerist.

If you have any questions regarding cloud computing, litigation and privacy law, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

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Your employees are probably participating in social networking sites such as Facebook, LinkedIn and Twitter. But what are your workers doing on Facebook while on the clock? Are they networking or are they sharing their 5 favorite beers? On the one hand, you want to trust your employees and make them feel like they have autonomy to perform their work duties. On the other hand, you are paying them to work and you want them to present themselves professionally.

Recently, staffers of The Wall Street Journal were provided a compiled list of rules for “professional conduct” which regulates online behavior. Should your company follow the lead of the Wall Street Journal and draft a written social networking policy advising what your employees can post while working at the office? If you would like to limit potential company liability to lawsuits, the answer is yes. Here are 5 reasons why:

1. A written social networking policy may shield your Company from defamation lawsuits. What happens if your employee starts posting on Facebook untrue statements about a competitor? Without a written social networking policy, your Company could be sued for defamation.

2. Potential disclosure of Company proprietary information. Let’s say that your business has created the next killer app that will be ready to launch in 3 months. By having a non-disclosure section written into your social networking policy, your employee would be on notice and could be held liable for posting on LinkedIn such information.

3. Your business’s social networking use policy should encourage positive and constructive use of the social networking sites, as well as to prevent the use of such sites for personal or inappropriate reasons. You could be held liable for anything that your employees say of a personal nature on social networking sites.

4. Potential use in litigation. Information disseminated by your employees on social networking sites can be uncovered by a potential adversary and used against your company in litigation. Therefore, you should be clear about the type of topics that can be discussed on social networking sites.

5. Intellectual Property. Trademark and Copyright laws extend to what your post on social networking sites. Your social networking policy should make clear that your employees should refrain from posting trademarked or copyrighted material while representing the company.
So, your Company should regulate social networking use in a more expanded way than the way you regulate other Internet use. By being upfront about the potential problems of social networking, you could help both you and your employees successfully utilize this tool and avoid unwanted lawsuits.

Further Resource:

Online database of social networking policies.

Contact the Law Office of Frederic R. Abramson at 212-233-0666 for more information about social networking policies.

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