Facebook Revamps Community Guidelines By Cracking Down on Hate Speech, Graphic Violence and Nudity

Sensitive to the expanding diversity of the online community, the world’s largest social network has taken a step to curb highly contentious postings.

On March 16, Facebook revamped its community guidelines, detailing what is and is not acceptable behavior on the site. With social media playing an ever-increasing role in the news and current events, Facebook’s decision to adopt specific standards is an attempt to balance the freedom to share ideas with its responsibility to protect users from content deemed universally unacceptable.

The new guidelines address everything from hate speech to nudity, making it clear that things like revenge porn, bullying, terrorist affiliations, graphic images of violence, and posts that threaten self-harm or harm to others are explicitly prohibited. Users who engage in these now-prohibited activities run the risk of having their post removed or entire account blocked. Users may also self-regulate content by flagging certain pages, profiles or individual posts by clicking the “Report” link and giving a short explanation about why they think the content violates Facebook standards.

Though these determinations of “unacceptable” content may seem highly subjective – a shared video may be hilarious to one user but offensive to another, etc. – the guidelines go into explicit detail to clarify the differences within each group of prohibited posts. For example, graphic images of nudity for the purpose of sexual exploitation will be removed, but images of a woman breastfeeding or showing post-mastectomy scarring will be allowed on the site to promote breast cancer awareness. Under Facebook’s new guidelines, context matters.

Facebook seems to be following suit with other major social networks – earlier this year, both Twitter and Reddit explicitly banned “revenge porn,” the posting of sexually explicit images of a person without his or her consent.

With Facebook users around the world generating billions of shares and posts every day, the updated guidelines are likely just the beginning of an ever-evolving struggle to create a more inclusive online community.

“Blurred Lines” but Clear Verdict: Jury Awards Gaye Estate $7.3 Million in Damages for Copyright Infringement

In a verdict on March 10, a Los Angeles federal jury decided “Blurred Lines,” written by Robin Thicke and Pharrell Williams, substantially borrowed from Marvin Gaye’s 1977 classic “Got To Give It Up” without permission. As a result, the jury awarded the family of the late soul singer more than $7.3 million in damages.

In October, a U.S. district judge ruled that the Gayes’ copyrights extend only to the written sheet music, or a “deposit copy” filed with the Library of Congress in 1977, and not to the actual sound recording (which was not registered) that was mainly in contention. Thicke and Williams argued that the copyrighted sheet music did not contain many of the musical elements they were accused of infringing (e.g., Gaye’s voice, backup vocals and percussion). Thus, the judge ruled that the Gayes would not be able to play the sound recording of “Got To Give It Up” in court because it may sway the jury. Instead, the eight jurors were instructed to compare “Blurred Lines” and “Got To Give It Up” only on the basis of their sheet music versions (i.e., their fundamental chords, melodies and lyrics). Nevertheless, the jury ruled that there were substantial similarities throughout the two compositions.

The legal battle started in August 2013, while the song was still No. 1 on Billboard’s Hot 100, when the songwriters formally launched a preemptive case against the Gayes, seeking a declaratory judgment that their song was not an infringement of “Got To Give It Up.”

During the trial, jurors listened to testimony from musicologists, as well as Thicke and Williams. Thicke performed both songs (along with various other songs by U2 and Michael Jackson) on a keyboard to demonstrate similar chord progressions to the jury. Also presented were statements made by both Thicke and Williams in interviews, allegedly referencing Gaye in regards to their writing process.

The case has prompted heated debate in both the music and IP industries about the “blurred line” between plagiarism and paying homage. It is still unclear what practical impact the verdict may have on how musicians write and create songs.

Incentivized Reviews Without Disclosure Get Panned by FTC

In the latest iteration of the Federal Trade Commission’s (FTC) approach to testimonials and endorsements in the context of online advertising, the Commission alleged that AmeriFreight, a company that arranges the shipment of consumers’ cars through third-party freight carriers and its owner posted customer reviews without disclosing that it had provided a financial incentive for the reviews and for affirmatively representing that the reviews were unbiased.  The consent order underscores that incentivized reviews generally must be accompanied by some form of disclosure of the incentive.  The order also touches on an aspect in the growing jurisprudence of customer reviews, namely the use of contractual provisions between service companies and customers that restrict the nature of reviews published by those customers.  The FTC suggests that any such contractual provision is a material connection that must be disclosed if a resulting review is used in advertising.

When signing up for service, customers of AmeriFreight were offered a $50 discount for providing an online review.  The offer was presented to prospective customers up front in the written sales quote and the order confirmation form.  In fact, the $50 discount was baked into the deal.  The discount was described as a contingent “Instant Discount” that would disappear if the consumer did not leave a review within seven days from delivery of the customer’s vehicle.  One could opt out of the deal by simply indicating a desire to pay the additional $50 and not worry about writing a review.  Thus, writing a review was made part and parcel of the service contract.

It’s not entirely clear that that baked-in deal alone should have been sufficient for the FTC to allege a section 5 violation.  The FTC’s standard for determining whether a disclosure of material connection is required is that omitting the disclosure is deceptive if “there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience)….”  16 C.F.R. § 255.5 (2014).  The FTC in the complaint implicitly alleges that people would not reasonably understand that a service contract might have a provision that contractually obligates the purchaser to leave feedback.  Further, the FTC presumes that finding out that there was a contractual provision requiring feedback – good or bad – would affect the weight one gives to the review.

None of the examples in the FTC’s Guides Concerning the Use of Endorsements and Testimonials contemplates a contractual provision that per se constitutes a “material connection.”  The closest example is that of the “college student” who is provided with free video games by the advertiser, “as it has done in the past,” and then the student is asked by the advertiser to write a review.  In that case, the scenario implies that there is some sort of quid pro quo whereby the student blogger will only continue to receive the free games to review if he is kind in his reviews.  But, in the case of AmeriFreight, there is no such requirement.

Or is there?

The FTC alleged that AmeriFreight presented customers with “Conditions for receiving a discount on reviews.”  In this written document, AmeriFreight stated that potential customers were also eligible for an award of $100 for the “Best Monthly Review Award” for the most “creative ‘Subject Title’” as well as “informative content.”  What was AmeriFreight communicating to those who take advantage of the Instant Discount?  AmeriFreight seemed to be offering a skill contest that invited customers to vie for a monthly prize of $100 based on the advertiser’s determination of the “best” review. AmeriFreight did not tell customers they had to write positive reviews; however, the terms of the “Best Monthly Review Award” contest certainly suggested that a positive review would have a better chance of winning, particularly since AmeriFreight was the judge.  Thus, in the context of this user-generated content (UGC) contest, according to the FTC, the sponsor implicitly promised customers a prize for positive reviews.  That sort of incentive is contemplated in the FTC Endorsement Guides and is clearly something that should have been disclosed along with the reviews.

Thus, the FTC alleged that both the contractual provision that required a customer review in order to save $50 and the chance to win $100 in exchange for the “best” review were violations of section 5.  While the UGC contest entry is probably not that much of a surprise (especially after the Cole Haan closing letter from a year ago), the articulation of a separate “material connection” arising from contractual provisions concerning feedback generally is new and it may be a stretch for the FTC to take the position that such a provision is the same as payment for an endorsement.  One fact that the FTC has chosen not to emphasize in its complaint or press release is that the “Conditions for receiving a discount on reviews” exhorts the customer to write a “fair” review but not necessarily a “positive” review.  This is interesting because a slew of cases across the country have dealt with contractual provisions that seek to impose liquidated damages on customers who write nasty reviews.  The validity of those provisions is generally addressed through common law principles of unconscionability and unenforceability.  In this case, AmeriFreight probably went too far in its instructions as to what was a “fair” review.  As stated in the written materials attached as an exhibit to the FTC complaint, AmeriFreight defined a “fair review”:

A fair review implies that customer will base the review mainly on the services of AmeriFreight acting as an agent on behalf of customer to arrange and assign a carrier to ship the customer’s vehicle. Errors and/or damage caused by carriers should not be considered in the review. Instead a seperate [sic] review can and should be left regarding the carrier’s services in such a case. A fair review does not indicate that a customer is required to leave a positive only review.

The molding of the customer review probably had something to do with the FTC’s discomfort with this practice, notwithstanding the statement that a “fair review” does not necessarily mean a positive one.

In the consent order, AmeriFreight and its principal agreed to the following:

  • To not misrepresent that reviews are unbiased
  • To disclose material connections between endorsers and themselves

Despite the simplicity of the order, the case is important because:

  • It represents an enforcement action that didn’t occur in the Cole Haan situation.  It is now clear that offering a prize in exchange for UGC reviews and then failing to disclose that the reviews resulting from that UGC contest were sponsored or incentivized, will expose you to liability under section 5.
  • It effectively creates a new “example” under the FTC Endorsement Guides.  Where the contractual relationship between an advertiser and a customer includes a provision that ties a monetary benefit (only monetary?) to writing a review, and where the instructions to the customer suggest what kind of review is expected., i.e., “fair”;  then failure to disclose that contractual benefit exposes you to liability under section 5.

There may be ways to contractually limit customers from writing nasty reviews.  But, if you want to go down that road, combining such methods with a customer review generation strategy becomes very tricky and requires some careful review and drafting.

Stay in Tune with SAG-AFTRA – Town Hall Meeting in Miami

Join us on Thursday, March 5, for the Joint Policy Committee’s Miami Town Hall Meeting, hosted by ALMA.  Our discussion will include:

  • Resolution of SAG-AFTRA CBA issues
  • Overview of the audit process
  • Recent SAG-AFTRA arbitrations
  • Discussion of the experimental waiver for “made fors”
  • AFM update
  • Ad-idMiami Town Hall Invite

Register now:
RSVP to Adriana.Hoak@AlmaAd.com (space is limited)

Date and Time:
Thursday, March 5th
9:30 am – 10:00 am  |  Breakfast & Networking
10:00 am – 11:30 am  |  Stacy Marcus, Miami Town Hall
11:30 am – 12:00 pm  |  Questions & Answers

Location:
ALMA
2601 South Bayshore Drive, 4th Floor
Coconut Grove, FL 33133
Map and Directions

Today’s Hot Topic: Network Clearance Top Ten Tips

From time to time, I like to remind clients about the simple things they can do to help facilitate the network clearance process.

A few years ago, we published a list of helpful tips advertisers and agencies should keep in mind when clearing commercials with the networks.  Below is an updated version of the previous list adapted for today’s standards:

  1. Be sure to send supporting documents (e.g., claim substantiation, product labeling, date of national distribution, etc.) in one packet whenever possible.  The network editors prefer to review all supporting documents at once rather than in piecemeal.  This also helps expedite the clearance process.
  2. Be sure to include scripts when clearing rough-cuts.  The editors need to see the copy when reviewing rough-cuts.
  3. Ensure final commercials are properly slated with an ISCI/Ad ID Code.
  4. Be sure to clear 15-second versions of approved 30-second spots. 
  5. If you will be running both the standard (SD) and high definition (HD) versions of the same commercial, you only need to submit the HD version for final network approval.
  6. Avoid sending compressed video files for clearance via e-mail.  While they may be easy to send, they are usually poor quality, thus making legal disclaimers/supers difficult to read.  It is best to send a link to an FTP site where a large video file can be downloaded and viewed.
  7. Be sure to clear “non-new” versions of approved “new” spots.
  8. Be sure to pre-clear substantive revisions to existing spots. 
  9. Ensure as-produced scripts include the name of the advertiser and the product being advertised, as well as the title, ISCI/Ad Id Code, length and date of the commercial.  They should also include all legal disclaimers/supers appearing in the commercial. 
  10. When in doubt, ask questions.  This can save a lot of time and effort down the road.

Marilyn Colaninno is Director of Rights and Clearances for Reed Smith and is responsible for clearing commercials for the firm’s many clients in the advertising industry.  If you have specific questions, please contact Marilyn directly at 212-549-0347 or at mcolaninno@reedsmith.com

Disclosures Become a Focal Point for Regulators

In a recent Compliance Week article, Keri Bruce and Kevin Madagan discuss the FTC’s and FDA’s increased attention to disclosure practices, reminding companies to review their existing measures.  The article underscores the importance for companies to reeducate themselves and reevaluate approval processes to help avoid enforcement.

Appeals Court Sides with FTC in POM Wonderful Advertising Case

On January 30, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld claims of false advertising by POM Wonderful LLC (“POM Wonderful”), finding that the government could prohibit the pomegranate juice company from advertising its products as being effective in fighting heart disease, prostate cancer and erectile dysfunction.  The court sided with the Federal Trade Commission (“FTC”) on most issues in the case, while rejecting POM Wonderful’s argument that the advertisements and claims were protected by the First Amendment.

However, the court invalidated a requirement imposed by the FTC that POM Wonderful obtain support from two clinical trials before making disease-fighting claims, instead holding that one clinical trial was sufficient, and put the burden on the FTC to show why an additional study would be needed.  The court rejected POM Wonderful’s claim that even performing one clinical study is too onerous a requirement, but held that a requirement of two clinical studies could have the effect of denying consumers “useful, truthful information about products with a demonstrated capacity to treat or prevent serious disease.”

FTC Chairwoman Edith Ramirez issued a statement on the decision, saying, “Today’s decision by the D.C. Circuit is a victory for consumers.  It is in keeping with established law that advertisers who market products for serious health conditions must have rigorous science to back up those claims.  The court specifically recognized that this applies to food and dietary supplement marketers such as POM.  It also held that requiring a randomized, well-controlled human clinical study for future disease benefit claims is an appropriate remedy based on POM’s conduct.”

FTC Ignores the First Amendment with $9 Million Fine Against Weight Loss Supplement Company

On January 26, the manufacturer of a green coffee bean extract (GCBE) agreed to pay the Federal Trade Commission $9 million to settle charges brought by the FTC that the manufacturer deceptively advertised weight loss benefits of GCBE.

Lindsey Duncan, through his companies Genesis Today, Inc. and Pure Health, LLC (the “defendants”), promoted GCBE on shows like “Dr. Oz” and “The View,” claiming that the supplement could cause consumers to lose 17 pounds and 16 percent of their body fat in just 12 weeks without diet or exercise. The defendants sold more than $50 million in GCBE supplements.  The FTC charged that the claims made by the defendants were deceptive, unsubstantiated and based on a severely flawed study.  As part of the FTC settlement, the defendants will pay the FTC $9 million for consumer redress and will stop making the purported deceptive claims.

Although the complaint was supported by all of the commissioners, two out of the five commissioners dissented from the proposed stipulated order settling the matter.  Commissioners Maureen Ohlhausen and Joshua Wright wrote that the redress improperly included sales attributed to protected non-commercial speech by Dr. Oz and Duncan.  Particularly, the commissioners highlighted that some of the statements were non-commercial in nature because Duncan never proposed a commercial transaction on screen and did not pay to appear on Dr. Oz’s show.  The commissioners warned that suppressing all speech about a potential public concern simply because the speech is considered unreliable or unproven would produce a chilling effect, and would “far exceed the government’s proper role in regulating commercial speech.”

FTC Report Offers Privacy and Security Guidance for ‘Internet of Things’

On Tuesday, January 27, the FTC issued a 71-page Staff Report on the privacy and security issues with the Internet of Things.  As we’ve noted in our previous blog posts, the Internet of Things (“IoT”) refers to the growing ability of everyday devices to monitor and communicate information through the Internet.  This FTC Staff Report follows up on the FTC’s public workshop over concerns with the IoT, as well as the FTC’s first enforcement action brought in September 2013.

In the Staff Report, the FTC referenced the various potential security risks that IoT products present.  Such connected devices could, if exploited, lead to consumer harm by enabling the unauthorized access and misuse of personal information; facilitating attacks on other systems; and creating risks to personal safety.  In addition, potential privacy risks could flow from the collection of personal information, habits, locations, and physical conditions over time.  To address these risks, the FTC recommended that companies developing IoT products take the following concrete measures in the areas of security, data minimization, and notice and choice:

  • Security. The FTC recommended that companies: (1) build security in their IoT devices at the outset; (2) train all employees about good security; (3) retain service providers that are capable of maintaining reasonable security and provide reasonable oversight for these providers; (4) implement a “defense-in-depth approach” by considering security measures at several levels; (5) implement reasonable access control measures to limit the ability of an unauthorized person to access a consumer’s device, data, or network; and (6) monitor products throughout the life cycle and, if feasible, patch known vulnerabilities.
  • Data Minimization. The Staff Report also encouraged companies to examine their business needs and develop policies and practices that impose reasonable limits on the collection and retention of consumer data. The FTC noted, though, that this recommendation is flexible and intended to give companies options. Per the FTC, companies can decide not to collect data at all; collect only the fields of data necessary to the product or service; collect data that is less sensitive; or de-identify the data collected. If none of these options is consistent with the companies’ business needs, they can seek consumer consent for collecting additional, unexpected categories of data.
  • Notice and Choice. The FTC incorporated certain elements from a use-based approach. In other words, if a use of the data by the company is consistent with the context of the interaction with the consumer (i.e., an expected use), then a choice need not be offered to the consumer. For uses that would be inconsistent with the context of the interaction (i.e., unexpected), the FTC recommended that companies offer clear and conspicuous choices. In addition, if consumer data collected is immediately and effectively de-identified, then the FTC stated that a choice need not be offered to the consumer. The FTC encouraged legislators and multistakeholder frameworks to help guide companies on what types of users of certain consumer data are permissible or impermissible, and address other concerns.

Finally, the FTC acknowledged that IoT-specific legislation at this stage would be premature. However, it did reiterate previous recommendations for Congress to enact broader, general data security legislation. Commissioner Joshua Wright dissented, citing the lack of empirical evidence and questioning whether the recommendations in the Staff Report would even improve consumer welfare. Said Commissioner Wright, the FTC should “at a minimum, undertake the necessary work not only to identify the potential costs and benefits of implementing such best practices and recommendations, but also to perform analysis sufficient to establish with reasonable confidence that such benefits are not outweighed by their costs at the margin of policy intervention.”

IoT has been a hot topic lately, garnering a lot of attention from the FTC. With the Staff Report finally released, companies now have a loose playbook on how to develop such products while keeping privacy and security in mind. With the FTC promising more enforcement in this area, we will be watching closely to see how the FTC translates its Staff Report into practice.

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