I love college basketball.  Given that my Missouri Tigers haven’t given me much to talk about, I thought we could discuss the efforts by this upset Duke fan to have her image removed from the Internet captured during the Miami – Duke game that snapped Duke’s incredible 41-home-game winning streak.  You can read about it here.

I am not a Duke basher (nor fan) and I don’t want to pile on this poor fan.  Believe me, after what Kentucky did to Mizzou last night, I felt worse.  This does, however, raise some interesting legal questions.

How do you remove images from the Internet?

 

1. Copyright

The primary way is to use the Digital Millennium Copyright Act.  If you own the copyright to the image, it is usually pretty easy to get images removed from websites operated in the U.S. and to have the search engines de-index them.  You can read more about the DMCA here.  Generally, if you take the picture, you own the copyright.  The copyright to this image belongs to ESPN and probably the ACC or NCAA.  You know that really quick copyright notice for broadcasts – any use of images is prohibited, blah, blah, blah.  Screen shots would be included.  The fan could ask ESPN to get these images removed.  ESPN may be a little busy, however, because I think Tom Brady may have sneezed.

2.  Invasion of Privacy

There is little expectation of privacy in the stands of a nationally televised sporting event.  Do a search for certain NSFW conduct at sporting events to see how people forget this sometimes.  Also, look at the back of your ticket next time you head to a game.  There is a lot of fine print about the lack of privacy you may experience.  Nevertheless, let’s go through the common law claims of intrusion upon seclusion, publicity to private facts, appropriation of likeness and false light.

Intrusion upon seclusion.  The elements of the claim are: (1) intentional intrusion; (2) upon private affairs of another; (3) that is highly offensive to another.  Being upset at a basketball game is not a private affair.  Most states follow the stand in doctrine which provides that if the media stands where the general public could observe the events, then there is no intrusion.

Publicity to private facts.  To prevail on a claim, the information must not be a matter of legitimate public concern and its publication would be highly offense to a reasonable person.  I am not suggesting comments to a blog are true indications of what is offensive, but a quick view of them reveal that using that screenshot is not highly offensive to most.

Commercial appropriation of likeness.  This requires the (1) appropriation of one’s name or likeness; (2) for a commercial purposes.  Although ads are sold on blogs, the use of the name is not for a commercial purpose.  This cause of action usually applies to celebrities when a store tweets about them without permission or makes video games about them.  If a UNC fan used this picture to start selling t-shirts, then she may have a claim, but not for the use of the image on Twitter or blogs.

Portrayal in false light.  It requires: (1) publishing information that creates a false impression; (2) thereby casting the person in a false light; (3) creating emotional (as opposed to commercial) harm; and (4) the act is highly offensive.  I suspect there is nothing false about this fan’s feelings.  Like I said, no one saw me in my living room with a look of disgust last night, but there is nothing false impression about how she is feeling and why she is upset.

3.  Approach the websites

According to the article, the first image appeared on Twitter.  Under the Twitter Rules, posters are not supposed to abuse others, infringe on the rights of others or violate copyrights.  If you ask nicely and point out how posts violate a site’s terms, sometimes the wesbites will take it down although they may not legally have to.  In fact, in the terms of service, Twitter says it may not monitor the tweets and:

You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive.

In addition to being at the mercy of Twitter’s whims that day, the problem is now that the image is on many other sites as well.

The Streisand Effect

We have talked about the Streisand Effect before.   It’s the name given to the phenomena resulting from increased attention to online posts, stories, websites, etc. only after someone complains about them or raises a legal issue about them.  Had the fan not asked to remove the image, I would not have read about it and would not be blogging about it. Sometimes, the wiser move is to let it go (no, I will not sing it).  It’s a bad business development strategy on my part, but is often the best advice I have ever given.

On the bright side, at least the fan was not wrongfully accused of being caught cheating on her boyfriend at the Ohio State v. Alabama game.

http://www.youtube.com/watch?v=-2QQj1n57ok

 

 

 

 

5.  Using Images Without Permission is No Monkey Business

From the Wikimedia Commons website

This was one of the more interesting stories of the year – does the photographer who set up everything to allow for a monkey to take a selfie own the copyright to that selfie?  This year we learned that no, the photographer does not.

 

 

 

4.  Infographic: The Use of Images From The Web on Your Site, Newspaper or Broadcast – Enough Said:

3.  The Law on Unpaid Interns – This post makes the list almost every year because I repost the guest post by Michael Kelsheimer of the Texas Employer Handbook every year as tech start-ups look to hire unpaid interns.  It’s a little more complicated than you may think.

2. #SMH-butnotacontestorasweepstakes – Check your online promotion hashtag or face scrutiny from the FTC – This post covered the surprise investigation of the Wandering Sole contest by Cole Haan.  The FTC basically said if you are going to have customers “endorse” your products by and through a contest, you better make sure the connection between the endorsement and contest is disclosed.  The legality of online contests is a popular topic with an older post Is Your Online Sweepstakes or Contest Legal still remaining popular.

1.  When Online Behavior Crosses the Line – The Law on Threats, Libel and Just Being Rude – Online defamation and related topics continue to be popular.  In fact, this post from 2012, remains one of the most popular on the site, How to Identify the Anonymous Online Defamer.  My suspicion is that SEO on these topics leads to more page views.  Nevertheless, it continues to be a very important issue for individuals and businesses and will likely continue in 2015.

 

The full name of the book is Civility in the Digital Age: How Companies and People Can Triumph over Haters, Trolls, Bullies, and Other Jerks.

Author Andrea Weckerle gave me a free copy* to look over Chapter 9 entitled “Legal Aspects of Online Disputes and Conflicts.”  The legal basics are adequately covered, but I found myself more intrigued by the rest of the book for good reason.

I would encourage any brand manager, PR professional, lawyer that work with brands and social media, dispute resolution professionals and marketing people to read this book.  This is a rare book that looks at how to handle online criticism from all of these angles with a nice mix-in of sociology and psychology as well.

I was able to implement some of the gems while reading the book.  Being an attorney and counselor at law requires more than simply explaining and advocating a client’s legal rights.  There is meaning behind the “counselor” aspect of our profession and this book helped me advise of ways to quietly and quickly handle and resolve more than one online issue before it reached a full-blown crisis.

There are lists of resources you can immediately use, sample policies and plans.  Before the book culminates with a 30-day action plan to “for better conflict management online,” it includes a chapter with real world good and bad examples along with hypotheticals to implement the concepts and strategies explained in the book.

This book is not a cure-all and by reading it, you will not avoid online criticism or disputes.  It also won’t let you lose 20 pounds without exercising or eating less either.  By reading it though, you and your organization, will be better equipped to react to online issues and even better yet, be proactive to manage conflict and criticism.  I plan to keep the book handy to share its insights with clients and colleagues.

When not writing books, Andrea runs Civilination.org which is a non-profit that promotes more civility in our online discourse.  When trying to resolve some of our online bullying disputes, we often discuss a donation to a non-profit entity to show the aggrieved party is not after the money.  Civilination is now on that list.

*Notice the online disclosure – practicing what we preach about online endorsements.

After looking at the most popular posts from 2012 in our last edition, today we look at what are likely going to be the big trends for 2013 in internet and marketing law.  

Privacy and COPPA – Although this issue is not likely to dominate the general business population, privacy and COPPA will continue to dominate the media’s coverage of internet law issues — just look at Instagram’s latest dustup.  Right before the new year, the FTC officially passed their COPPA regulations.  Although the changes have been in the works for almost a year, it will take a while for companies covered by the Children’s Online Privacy Protection Act – generally websites targeted or directed to users under 13 – to comply.  Surprisingly, respected folks like Nickelodeon have had COPPA issues and the FTC is watching the mobile app industry

Cyber-Security – An issue likely to catch people off guard is cyber security legislation that may be written broad enough to cover more than just the major telecoms.  Last year, efforts like the Cyber Intelligence Sharing and Protection Act (CISPA) and the Cybersecurity Act of 2012 failed to become law.  Both the CSA and CISPA drew critics mainly related to personal privacy.  The President may simply act by executive order.  The business question remains how broad will any laws be, what sites and service providers will have to comply, what will that mean and how much will that cost?  For more, David Gewirtz outlines the 14 Global Cybersecurity Challenges for 2013 on ZDNet.

Software and Tech Patent Reform – Whenever a programmer finds out I am a lawyer, I instantly get a tirade about our broken patent system.  I’m guessing Apple, Samsung and Motorola would agree.  In the well-covered battles,, the only winners appear to be the lawyers.  Although I don’t practice patent law (it is not a field where one dabbles, so I leave that to my colleague David Henry), I have a hard time deciphering what was to be learned from those expensive battles and what developers should do.   Maybe there is some hope for sensible patent reform

Amending the Communications Decency Act – The CDA is the law that prevents people from suing the likes of Yelp and RipOff Report for reviews generated by users.  It certainly makes sense not to allow lawsuits against Facebook and Google for defamation from other people’s content which would cripple those services.  But online defamation remains a hot issue and more people are fighting back.  I’m not sure if there will be any changes as the law is applied to consumer review sites, but what about loosening the law as it applies to sites whose whole sole purpose is to slander and then extort?  Sites that call people whores with photos and run SEO’ed pure gossip sites of private individuals, but then offer “reputational protection” services for a fee to remove the materials.  I purposefully don’t mention names or link to them so you won’t go check them out.  Instead, if you are interested, go to a good advocacy group like CiviliNation.   

The New Advertising Model – The FTC may push harder on Do Not Track legislation that could interrupt behavioral or targeting online advertising this year.  Facebook and everyone else is still trying to figure out mobile marketing.  I waxed philosophically at the end of last year about where advertising and user generated content may be going.  (Are the YouTube commercials you can’t escape getting longer and do I want to wait to see a 30 second video I am already skeptical about?)  Kirk Cheyfitz of PandoDaily says the best online ads of 2012 were not sctually ads.  There are bright minds trying to figure this out and I expect by the end of the year, we will talking about one of them and a new product, service or idea we haven’t heard of before.

Yes, it’s the lazy way to do a post during the week before Christmas and New Year.  In my next post, we will use this information to help predict the trends of legal issues for online media, marketing, internet law and start-ups for 2013.

1.   SOPA The Debate in Plain English and the SOPA Update and Editorial

The two posts were actually numbers 1 and 3 respectively and if you click on the Update and Editorial, you can see the original post.  The original post was done in December 2011, but as Congress debated the issue in early January 2012, the readers kept coming.  These two posts were the most popular ever for this blog and there was a lot of angst about what Congress.  As we sit here with three days before the end of 2012, it almost seems quaint that Congress fought about SOPA rather than a made up self-imposed fiscal cliff.

2.   The Law of Using Images from the Web on Your Blog

This tells me there is a need for some Internet Law 101 type of information.  On my list of things to do in 2013 is to put together a series of these types of posts for a more permanent placement.  Should I self-publish an e-book?

3.  City of Paris Ordered to Pay for Reverse Domain Name Hijacking

This was the most interesting litigation matter I worked on this year.  If you are a domainer the decision was very important.  Or, if you just think the French are rude or still don’t like Zinedine Zidane from his 2008 World Cup headbutt, you might just find this story interesting.

Yes, that was a gratuitous French soccer snub.  Now, to collect against the City of Paris in 2013.

4.  The three-part series on online defamation that included (1)  Protecting Yourself Online Does not Have to Include Legal; (2) How to Identify the Anonymous Online Defamer; and (3) Conclusion – Anti-SLAPP

This may have been popular because I often send potential clients there.  If you think you have been wronged on a review site or by some blogger, read this series for a basic understanding of your options and the role a lawyer can play.

5.   The Cost of Fake Online Reviews Goes Beyond Morality

This tells me businesses are really concerned about online reviews.  The DMCA protects the review sites, but should there be changes to this law?  Of course, the review site is protected, but you should know by now that if you provide the review and it crosses the line, you could be liable.

On an interesting note, just out of the top five most viewed posts in 2012 was a post I did back in 2009 entitled Online Harassment Becomes Law Today.  That tells me not much has been written about the Texas law and it probably has not been used too often.  I often tell potential clients about it suggesting they visit with a local D.A. about enforcing the penal provision.  I’ve not had anyone come back and tell me the D.A.. agreed to prosecute.

 

 

I confess.  I am not necessarily an early adopter.  I got my first iPhone about three months ago and my five-year-old son knows more about it than I do at this point.

But, focusing on internet law, I do have an excuse for playing around with new services and products.  I generally give a product about thirty minutes to figure out if I can get some value from it.  Otherwise, I merely become a statistically-counted subscriber, but someone who has not checked in for months.  Some examples are FourSquare, Quora, Diaspora and dare I say it Google+ for now although I am willing to revisit my initial impression like I did with Twitter. 

Recently, I tried Summify.  The website says “Summify creates a beautiful daily summary of the most relevant news from your social networks, and delivers it to you by email, web or mobile” by going through your blog reader, Facebook and Twitter Feeds.  I was intrigued because the hardest part about writing this  blog is reading everything to figure out what to write and not the actual writing. 

It’s easy to sign up and I have found it interesting.  It seems like it pulls (at least for me) the most retweeted stories that happen to come across my Twitter feed more than anything else.  I don’t see it replacing my blogreader as my go to source for material, but I do see stories there I might have otherwise missed because my Twitter time is usuall spent trying to see the latest on whether Mizzou is going to the SEC more than reading interesting business stories.

Here is a shorterned version of the email Summify sent me today.  It’s kind of ironic a service meant to save time is sending me stories about cars that read your texts and finding time to blog.  Can Ford make a car that can blog? 

In the future, I may simply post my summaries if the content seems appropriate. 


Ford Vehicles Will Now Read You Text Messages While You Drive

mashable.com mashable.com

Ford is installing a feature in its new vehicles — and many of its older ones — that can read text messages out loud. The feature, which is intended to reduce texting while driving, is part of…

about 8 hours ago

1 more story from mashable.com

  1. “Walking Dead” Breaks TV Ratings, Makes Big Moves in Social TV


Haven’t Had Time to Blog

chrisbrogan.com chrisbrogan.com

I met with someone yesterday who said to me that he didn’t have any time to blog. Moments later, he told me what was happening on “Ice Loves Coco.” Earlier in the day, a woman…

138 tweets & 39 shares


What Are Mobile Marketing Opt-ins and Why Are They Importa…

socialmediaexaminer.com socialmediaexaminer.com

Are you considering mobile marketing? Wondering how mobile opt-ins differ from social opt-ins? Keep reading to discover how mobile opt-in marketing is unique from social media marketing. In a previous post discussing how to combine…

about 6 hours ago

38 tweets & 17 shares


Support Your Community | Aviva Community Fund

avivacommunityfund.org avivacommunityfund.org

Aviva is giving you the chance to share in the $1,000,000 Aviva Community Fund by creating an idea for lasting change in your community.Create an IdeaIf you’ve got the imagination, we’ve got the resources.…

about 4 hours ago

2606 tweets & 9080 shares


Hamas frees Israel’s Gilad Shalit in prisoner swap

cnn.com cnn.com

From Paul Colsey and Kareem Khadder, CNNupdated 3:05 AM EST, Tue October 18, 2011 Israeli captive set for freedomSTORY HIGHLIGHTSNEW: The freed soldier’s father says this is the happiest day of his…

about 11 hours ago

152 tweets & 2053 shares


Yes, somehow it all made sense, blended together and related to internet law.  This Week In Law, hosted by Denise Howell and Evan Brown, invited Taxgirl Kelly Phillips Erb and me to join them for this Friday’s show.  

We covered taxes for ecommerce and its impact on behemoths like Amazon, the mom and pop e-retailers and the consumers.  We also hit on patent trolls, using social media to strike back the liability of employers and German porn.    Denise Howell has the summary notes here if you don’t want to watch the hour long show.

Notwithstanding my area of practice, I have so far successfully avoided the iPhone craze.  In fact, I have managed to avoid the entire i-craze.  No iPhone, no iPad, no iPod. 

I’m not trying to make some social statement against the closed nature of Apple products.  I’ve just gotten by with other mp3 players.  On the phone, our firm used to be tied to Blackberry and I was tied to Verizon.  Our law firm will now support the iPhone and if the predictions are right, the iPhone will be on the Verizon network tomorrow.

Then, my friend in the oil and gas business is trying to shame me into getting a tablet.  An oil and gas business CFO?  Of course, his biggest selling effort was some game he and his kids play. 

Then, I spent last week reading all the CES coverage.  Click here for the Wired two-minute video recap.

So, thoughtx?  Go iPhone?  Stick with the Blackberry touchscreen and get a tablet?  Is the Samsung Galaxy really better than the iPad?  Hit me with your best shot other lawyers, marketers, and yes, even the oil and gas CFO’s.

While I love staying up with the online legal issues, I have been more focused on trying to conquer mountains, rocks and rapids this past week.

 img00525-20100908-13131.jpg

So, that means I will just send some links of some interesting things I’ve read while on the road.

Yelp! successfully defended its defamation and DTPA case from Evan Brown

Lawyers can Google potential jurors

I can stalk u using twitter.

Check out what the UK is doing to regulate online advertisers.

Before I left for vacation, I attended a Houston Interactive Marketing Association presentation on accessibility of the web for those with disabilities.  Regretfully, it was something I had not spent much time thinking about, but the Government is.

Then, there were two articles questioning the Texas Attorney General’s anti-trust investigation of Google:  one from Professor Goldman’s Technology and Marketing Law Blog; and one from the LexDigerati blog.

Are Yahoo’s cost-per-click prices falling?  From Domain Name Wire.

For my partner’s Texas Physician Law Blog by Darrell Armer, here is a story on using social media to recruit medical study participants.

Why competitor vs. competitor pay-per-click trademark litigation is so much hotter from Professor Goldman.  I’ll sue one of the search engines if you really want me to–the retainer is three times as much.

Arrested for not tweeting

Losing insurance benefits because of Facebook?

Google apologizes for racist image of Michelle Obama, but won’t remove it.

I’m thankful there’s so much to discuss and thankful that I don’t really have time right now to discuss it all.  Happy Thanksgiving.