First, thanks to David A. Berman, who works right here in the Big Apple, as Information Technology Counsel, in the Office of the General Counsel of the New York City Department of Information Technology & Telecommunications, for correctly noting that on January 6, 1978, the first formal copyright notice appeared on the Carl Sandberg commemorative stamp issued by the United States Postal Service. Congratulations and well done.
FDA Examines Social Media: Food, Drugs and, Yes, Social Disease
Although it might not be obvious from the way the memorandum and discussion topic listing is phrased, the FDA Risk Communication Advisory Committee of the U.S. Food & Drug Administration is examining the use of social media, networking and new technology in assessing its Risk Communication protocols. The memorandum lists some publicly available background materials as reference points for the committee meeting yesterday (Background, May 5, 2011 Risk Communication Advisory Committee Meeting), and there is an associated list of discussion topics for the meeting (FDA Risk Communication Advisory Committee, Discussion Topics).
As we all appreciate, communication and dissemination of information about food and drugs affects the health and safety of literally millions of people. Preventing misinformation, as well as the timely availability of helpful, relevant and important information, is critical to any communication strategy. The Risk Communication Advisory Committee clearly appreciates the fact that technology (including social networking and mobile communication channels) can often quickly provide and make available accurate and helpful information to health and medical professionals, as well as to the population that might be at risk or individuals who need to know in any given situation – whether they are or are not on social networks or online. That said, like any other new technology or new application, implementing a system that optimizes the benefits of the use of technology, while minimizing the risks inherent in such adoption, is not a trivial or simple task.
If you are interested in following the proceedings, or have an interest in the use of social networking, cloud computing or any number of new technologies as they relate to legal, regulatory and compliance obligations and requirements, don’t hesitate to contact me or the Rimon attorney with whom you regularly work. We will make sure you get the help you need.
Dear WikiLeaks, Here We Come. Sincerely, The Wall Street Journal.
The Wall Street Journal just announced it has established a secure mechanism that allows “newsworthy” materials to be uploaded to its separate, but internal, secure servers. The new service, Safehouse, is a logical outgrowth of the age-old newsgathering function. That noted, one can only imagine everyone scratching their heads saying, “What took you so long?” considering the international notoriety garnered by the most visible recent leak-gathering organization, WikiLeaks.
Legal Bytes was certainly not alone in highlighting the WikiLeaks phenomenon (see IMHO – Wiki Wiki True to Its Meaning), so it’s a bit surprising that traditional news organizations had not previously moved aggressively into the digital technology age with their news-gathering activities. That said, kudos to the industry for opting to enter the digital age on the input side of the process and create competition in this arena, just as competition among journalists has existed for centuries.
The presumption is the WSJ upload process will be secure and apparently anonymous – the accumulation of anonymous and pseudonymous tips, leaks and leads has long been part of every investigative reporter’s and journalist’s job. Other news organizations are also rumored to be working on similar services, although not having done an investigation myself, others perhaps may have already launched. The WSJ service will reportedly provide encrypted digital file transmissions and, according to the Safehouse website, will seek to minimize the amount of technical information (read that to mean, traceable information) that the service receives on its servers.
Joseph I. (“Joe”) Rosenbaum is a partner in the New York office of Rimon, global chair of its Advertising Technology & Media law group – oh, and is the editor, publisher and often author of posts on Legal Bytes.
Celebrity Endorsements – The Fame, Blame or Shame Game
In January, Ace Metrix released a report questioning the relative value of celebrity endorsements (“Celebrity Advertisements: Exposing A Myth Of Advertising Effectiveness“). Just last month, a new study, co-sponsored by Ketchum and conducted by the Nielsen Company and BlogHer, took a look at social media trends among women and found online women were almost twice as likely to be influenced to consider a product based on a blogger they follow, rather than a pitch from a celebrity (2011 Social Media Matters Study).
Most of us understand that a few seconds of exposure on Oprah can mean the top of the best seller list, but celebrity steps and mis-steps can often pose, shall we say, “challenges,” for a brand. Celebrities such as Tiger Woods, Charlie Sheen, Lindsay Lohan and a host of others have seen their ups and downs. Correspondingly, advertising-endorsement considerations when dealing with any celebrity can be a mixed bag, depending on timing, relevance, image and a host of other factors—many outside the sponsor’s control. Sometimes neutral and other times negative, these recent studies suggest there are fewer success stories than one might otherwise assume.
Does this mean the end of celebrity endorsements? Probably not. But it may mean advertisers and agencies will become more selective and objective in evaluating the cost of promotions involving celebrities. Someone suggested celebrities should be compensated based on the “performance” of the advertising. First of all, that’s nothing new. However, in case you are wondering—and to throw in a quick legal byte—if a celebrity has a financial interest in the outcome of advertising involving that celebrity, yes, Legal Bytes has already noted that the FTC has an “app”etite for that: FTC (Revised) Endorsement Guides Go Into Effect.
The Advertising Technology & Media law practice group at Rimon has lawyers with decades of experience in working with advertisers and agencies handling matters involving celebrity endorsements—the good, the bad and, sometimes, the ugly. Let us know if you need us. We are happy to help.
Arthur Schopenhauer (1788 – 1860)
“Talent hits a target no one else can hit; Genius hits a target no one else can see.”
Food & Beverage Advertising to Children: Self-Regulation or Indigestion?
Earlier today, an Interagency Working Group released a report on the Federal Trade Commission’s website making sweeping recommendations relating to the marketing of food to children. The report, entitled "Interagency Working Group on Food Marketed to Children Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts Request for Comments," is the result of the U.S. Congress’ request that standards for the marketing of food products to children under the age of 18 be subject to review and recommendation by an interagency task force comprised of the FTC, the Centers for Disease Control and Prevention, the Food and Drug Administration, and the United States Department of Agriculture.
The recommendations in the Principals bifurcate foods into two categories, for determinations as to the appropriate marketing approaches and restrictions: (a) foods that are deemed to make a "meaningful contribution to a healthful diet"; and (b) foods that, given their nutritional content, should have their advertising limited.
While the proposed recommendations are referred to as "voluntary," this not only flies in the face of the inevitable pressure on advertising practices in the food and beverage industry, but—if previous government agency regulatory recommendations, guidelines or proposals are a precedent—these can also quickly become de facto standards that the regulators themselves use in enforcing "industry standards." As with so many areas currently under scrutiny by the regulators both in the United States and around the world, deference to self-regulation is a welcome trend; but if it is mere lip service, and if industries are not given a meaningful opportunity to design both self-regulatory standards, and appropriate and meaningful enforcement mechanisms, it simply ends up creating further adversarial tensions and needless contention between industry and regulators – none of which is ultimately good for consumers in terms of cost or benefit.
The Interagency Working Group has provided a very short window for public comment: comments are due by June 13, 2011, although with enough outcry, given the scope and breadth of the Principles, they might be persuaded to extend the deadline. That said, if your company is in the food and beverage industry and will be affected by any government or self-regulatory pronouncements in this arena, now is the time to engage in the dialogue – in your own right and through the various industry associations that may be submitting comments. Of course, if you need help and guidance, the Advertising Technology & Media law practice at Rimon has lawyers ready to counsel, assist and represent you.
Free Speech on the Internet – India Goes Schizophrenic
Unreasonable restraints on free speech? India? Well, you decide. According to an article published today in the Pittsburgh Post-Gazette, storm clouds are brewing over just how far the government should and can go in restricting free speech on the Internet. Indeed—just how ambiguous the regulations can be such that interpretation becomes a subjective problem, enforceable at the discretion of regulators.
Unfortunately, the new rules (referred to as “Information Technology (Intermediaries Guidelines) Rules, 2011”) stem from a 2008 amendment, widely supported by Internet service providers (I.T. Act 2008) to an Indian information technology statute first enacted in 2000. For a history of the Indian legislation, see Information Technology Act 2000 (ITA-2000).
The Amendment removed intermediary liability of Internet service providers, many of whom are represented by the Internet and Mobile Association of India, for any content created by third parties and for which the ISP played no active role in creating. While the removal of passive ISP intermediary liability is one of growing consistency in the international community, the regulations broadly empowering officials to curtail free speech on the web are not.
Growing trend, justified by security? Aberration spawned by immediate and local concerns? Abuse of power? Reasonable trade-off for protection of society? Ahh, but whose society? Where is the balance? Who decides?
Take a look at the regulations, then you decide. But if you need legal guidance or have questions about regulations that apply to the Internet—internationally, multi-nationally or domestically, in almost any part of the world—let us know. We are here to help.
Cloud Computing – Clouds Can Sometimes Be Storm Clouds
This post was written by Joe Rosenbaum and Adam Snukal.
Among others news publications, CNN Money just recently reported that Amazon.com’s cloud-based Web service EC2 suffered a “rare and major outage” this past Wednesday that affected several online sites it supports, including Reddit, HootSuite, Foursquare and Quora. Amazon.com hosts many major websites on its servers through its cloud-based service and, in total, “[t]housands of customers hitch a ride on Amazon’s cloud, renting space on its servers.” The recent outage crashed several customer sites and created glitches of varying degrees on others.
As cloud-based Web services have proliferated, the risks associated with major outages for companies dependent on cloud-based services have become a reality. This recent outage, and potentially others like it, could create reputational risk not only to the cloud providers, but also to those who use the cloud computing services of those providers for their technology infrastructure – processing, applications and data – exposing them to contractual liabilities for failure to meet promised service levels, breaches of performance representations and warranties, and even potential security and data breaches. All these and more, possible legal and contractual problems arising from the use of and reliance on cloud computing. These potential risks should be eliminated or mitigated, and while contracts cannot always guarantee operational integrity or performance, they can provide indemnities and remedies that offer a measure of protection or mitigation in many circumstances.
Rimon has been at the forefront of cloud computing legal thought-leadership and risk-mitigation strategy for our clients. Our lawyers have significant U.S., international and multinational experience in implementing strategies, such as service level agreements and risk-mitigating tools that help limit risks associated with cloud-based computing and cloud service outages. Indeed, to appreciate the risks, one need only look to one of the very first articles by Rauer Meyer, entitled When the Cloud Bursts – SLAs and Other Umbrellas, drawn from Rimon’s on-going series – one that you can view or download entirely in up-to-date form – entitled “Transcending the Cloud: A Legal Guide to the Risks and Rewards of Cloud Computing.” You can access and download a PDF of the individual article or the entire “Transcending the Cloud: A Legal Guide to the Risks and Rewards of Cloud Computing” compendium, up to date and including all of the previous chapters in one document.
Of course, feel free to contact Christopher G. Cwalina or Daniel Z. Herbst or Joe Rosenbaum or Adam Snukal (or the Rimon lawyer with whom you normally work) if you have any questions or require legal counsel or assistance. Make sure you subscribe via email or get the Legal Bytes RSS Feed so you are always in touch with our latest information.
ILO Publishes ‘Twitter Settles with FTC – Gets 20 Years’ Probation!’
On April 5, 2011, the International Law Office published a customized version of the March 14, 2011 blog on Legal Bytes, Twitter Settles with FTC – Gets 20 Years’ Probation! You can read it online or download your own copy of the ILO posting here: ILO Posts Twitter Settlement news.
Sens. Kerry & McCain Introduce Commercial Privacy Bill of Rights Act
Sens. John Kerry (D-Mass.) and John McCain (R–Ariz.) have introduced a bill in Congress to legislatively enable a statutory bill of rights for consumers with respect to commercial privacy. You can read the full text of the Commercial Privacy Bill of Rights Act of 2011 (PDF), and Rimon will have a more complete analysis for your reading enjoyment soon; but the bill clearly intends to require that as little data about an individual is collected as possible, and give individuals a right to know how their information is being used. At first reading, the bill does not provide a private right of action, but does contemplate a self-regulatory program, perhaps a nod to the industry initiative that is highlighted in a recent Legal Bytes posting “OBA Self-Regulatory Initiative Gets Boost from Yahoo! & Google.” You can search for privacy, behavioral advertising and/or self-regulatory on our site and you will find more about this on the Legal Bytes blog.
It may be too early to tell just how much faith Congress has in the industry initiative. That said, it would seem somewhat foolish – given that the FTC and many Congressional leaders have argued for and applauded industry self-regulatory measures – not to afford an industry-sponsored, dynamic, self-regulatory program, a chance to work. As we’ve seen so many times before, along with the technology, consumers’ expectations of privacy, their tastes, commercial needs and sensitivities often change rapidly.
As always, if you need guidance for your advertising and marketing efforts, or privacy and data-protection counsel from lawyers who have experience and resources aligned to deal with these issues every day, feel free to call me, Joseph I. (“Joe”) Rosenbaum, or any of the Rimon attorneys with whom you regularly work.