NLRB Judge Rejects Company Mandated Disclaimer on Employee Social Media Sites

An NLRB administrative law judge recently found various provisions of The Kroger Co. of Michigan’s online communications policy to be impermissible. One such provision includes a company mandated disclaimer to be used by employees when they identify themselves as being associated with the company or publishing anything about the company.  The decision reflects the importance of carefully crafting corporate social media policies with one eye on protecting the organization and the other on compliance with the National Labor Relations Act.

The offending disclaimer provision reads, “If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: “The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of the Kroger Co. family of stores.”

Administrative Law Judge David I. Goldman writes, “The ultimate issue, then, is whether requiring a disclaimer for every posting by an individual identified as a Kroger employee that conveys “work-related” information unduly burdens legitimate Section 7 communication to an extent that would be likely to chill employees’ willingness to engage in it.”  Section 7 of the Act provides:

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, and shall also have the right to refrain from any or all of such activities.

The issue as framed by the ALJ was answered in the affirmative.  “Kroger’s rule is manifestly broader than its legitimate interest.  It seeks to protect Kroger’s interest by requiring the imposition of a disclaimer on every identifiabl[y]-employee communication conveying work-related information.”  Earlier in the decision ALJ Goldman notes, “It would include an online comment made in response to a news article, on Facebook, blogs –examples are endless.”

This recent decision continues to make the balance between managing one’s corporate reputation and adhering to federal law particularly challenging within the context of online communications.

You can read the full decision here.  

Court Rejects Lawsuit against Facebook Claiming Misuse of Minors’ Photos

A U.S. District Court Judge has dismissed a proposed class action lawsuit against Facebook. The suit claimed that the social media company is impermissibly using the names and likenesses of minors in its advertising.

Judge Richard Seeborg, of the U.S. District Court for the Northern District of California, rejected the plaintiff’s assertion that, even if permission for such use was acquired via the plaintiffs’ acceptance of Facebook’s Statement of Rights and Responsibilities (“SRRs”,) since the plaintiff class is made up solely of minors the SRRs are unenforceable against them under California law.  Judge Seeborg writes, “Plaintiffs’ arguments largely flow from an opposite and incorrect presumption, that minors generally do not have the power to contract.”  Under California’s Family Code §6710, “Except as otherwise provided by statute, a contract of a minor may be disaffirmed by the minor before majority or within a reasonable time afterwards or, in case of the minor’s death within that period, by the minor’s heirs or personal representative.”  “Although this section almost certainly would allow [p]laintiffs to disaffirm the SRRs, they have never plainly expressed an intent to do so, and they do not dispute that they continued to use their Facebook accounts long after this action was filed.  While Plaintiffs argue that a minor may disaffirm a contract without restoring any of the benefits he or she has received, they have offered no explanation as to how the principle would somehow retroactively vitiate the consent they had given through the SRRs at the time their names and profile pictures were used,” writes Judge Seeborg. 

According to Facebook it only republishes information users have already voluntarily shared with certain Facebook friends with those very same friends and “sometimes alongside a related advertisement.”

The order dismissing the complaint is available here.

James Dean Rumbles With Twitter Over Alleged Trademark Infringement

A complaint, originally filed in an Indiana state court, was moved to federal court last week alleging that Twitter’s failure to terminate the @JamesDean handle and site violates various laws including, among other laws, right of publicity, trademark infringement and false endorsement under the Lanham Act.

Indiana, which is home to one of the most expansive right of publicity laws, is also home to CMG Worldwide, which manages the commercial estates and licensing rights of many deceased celebrities, including James Dean.  The complaint was brought by James Dean, Inc. against both Twitter and certain John Doe defendants who are the currently unidentified owners of the James Dean Twitter site.  According to the complaint, “On numerous occasions since October 11, 2012, CMG, by and on behalf of its client, JDI, has contacted TI [Twitter, Inc.] in an attempt to have the Unauthorized Use’…’ceased.” 

The complaint notes that JDI holds federally registered trademarks to the James Dean name and that both Twitter’s and Does’ conduct “is likely to cause confusion, to cause mistake, or to deceive as to source, sponsorship, connection, association or affiliation between CMG, JDI, and TI and Does.”  The JDI complaint also asserts both Indiana state statutory and common law right of publicity violations.  Among other remedies, the complaint seeks an injunction requiring Twitter to turn over the names of the site’s owners, which Twitter has so far refused to do.  Interestingly, in correspondence attached to the complaint, CMG in early correspondence with Twitter asserts that the @JamesDean site is in violation of Twitter’s own trademark policy and guidelines for “Fan Accounts,” writing “First, you state that ‘the username should not be the trademarked name of the subject of the news feed, commentary, or fan account. Here, the subject of the Twitter feed is James Dean, and the username @JamesDean consists solely of the trademarked name.  Second, you state that ‘[t]he profile name should not be the trademarked name of the company or include the trademarked name in a misleading manner.  The profile name for the account in question is listed as ‘James Dean.”  “Your third guideline states, “The bio should include a statement to distinguish it from the real company, such as ‘Unofficial Account,’ ‘Fan Account’ or ‘Not affiliated with…”.  The @JamesDean account’s bio contains none of these distinguishing statements.” 

A piece in the Hollywood Reporter notes, “Over the years there have been many disputes over Twitter handles, but not quite like this one.  The social media site has an “impersonation policy” that forbids accounts portraying another person in a confusing or deceptive manner as well as a trademark policy,” but apparently the service has drawn a line in the sand when it comes to dead celebrities.”

Tweet in NY Times Ad Ruffles Feathers

The BBC reports that a full page advertisement appearing in The New York Times, which included an actual tweet, raises copyright concerns regarding the reprinting of tweets for such purposes.

The ad was a promotion for the film, Inside Llewyn Davis and the tweet belonged to the New York Times’ very own film critic, A.O. Scott.  Scott, apparently a fan of the Inside Llewyn Davis soundtrack, tweeted, “You all keep fighting about Wolf of Wall St. and Am Hustle. I’m gonna listen to the Llewyn Davis album again.  Fare thee well, my honeys.”  Scott said the firm behind the full-page ad had originally sought his permission to use a portion of the tweet, which he denied stating that it was “a slippery slope and contrary to the ad hoc and informal nature of the medium.”  Regardless, the edited version of the tweet appeared in the ad.

Of interest here is the convergence of copyright, advertising and contract law.  Namely, Scott’s ownership of his tweet, the use of his tweet as an endorsement for a product and Twitter’s apparent prohibition against using tweets in ads without the user’s permission.  With respect to Twitter’s own rules, it states that one must get the user’s permission before, among other things, “creating an advertisement that implies the sponsorship or endorsement on behalf of the user.”

While it does not appear as though Scott will be taking any action other than registering his annoyance with the film promoter’s actions, the incident does serve as a reminder that, when using content found on social media, one must be careful to consider both the intellectual property rights of the creator as well as the terms and conditions of the social media site itself.

You can read A.O. Scott's piece on the episode here.

LinkedIn Brings John Doe Claim Against Scrapers

LinkedIn has filed a lawsuit in the U.S. District Court for the Northern District of California claiming that bots have been used to impermissibly scrape data from the profiles of hundreds of thousands of users. Thousands of fake accounts were created with the objective of using the bots to collect information from the profiles of legitimate accounts. While LinkedIn claims to have traced the accounts to an Amazon Web Services account, the identity of the actual culprits is still undetermined leading the social media site to identify the defendants as “The Doe Defendants.”

“Bots” refers to automated software applications that execute tasks over the Internet.  “Scraping” refers to the extraction of information from websites and is often restricted by a site’s terms of use, including LinkedIn’s.

Three important issues tied to the scraping include (i) the mere fact that the information was collected by parties who have not signed on to LinkedIn’s terms and conditions, (ii) determining how the scraped information will ultimately be used; and (iii) the impact on the integrity of LinkedIn’s profiles if many are found to be fake.  Moreover, in an InformationWeek article, LinkedIn’s concern with the degrading of its LinkedIn Recruiter services is noted.

LinkedIn is currently seeking the names of the owners of the fake accounts from Amazon.