FDA’s First Facebook Enforcement Action

In what may signal regulators’ growing focus on advertisers’ use of social media, particularly in regulated industries, on July 29, 2010, the FDA issued its first Facebook-related citation in connection with Novartis’ use of Facebook’s share function on its Tasigna® website. By clicking on the “share” button on the website, consumers could post Novartis-created information about Tasigna® (“Shared Content”) on their Facebook profile walls, which would then be sent to the consumers’ “friends” via the newsfeed.  It also allowed a consumer to send a separate message containing the Shared Content to their “friends” on Facebook.  The FDA cited four (4) ways in which the website and the Facebook “share” widget violated the Federal Food, Drug and Cosmetic Act and the FDA implementing regulations: (i) omission of risk information, (ii) broadening of drug indication, (iii) unsubstantiated superiority claims/overstatement of efficacy, and (iv) failure to submit. Read more »

FTC Settles Charges Against Twitter

If you promise customers that their personal information is secure, you had better deliver on that promise. That is the message of last week’s settlement between the FTC and Twitter — the FTC’s first case against a social networking service. It’s a message the FTC has sent to industry before.

The matter arose when hackers twice secured administrative control of Twitter in early 2009. (How? In one case, an automated password-guessing tool smoked out the administrative password – ”a weak, lowercase, letter-only, common dictionary word,” according to the complaint.)  The breach led to a series of phony tweets from a number of user accounts — including one from then President-elect Obama. Hackers also reviewed non-public user information. Read more »

Viacom v. YouTube and Google

We reviewed Judge Stanton’s comprehensive decision in this closely watched case. If upheld on appeal, it’s a victory not only for YouTube and Google, but for all Internet service providers (ISPs).

If you haven’t followed the case, Viacom had sued Google and YouTube for intentional and contributory copyright infringement, alleging “tens of thousands of videos on YouTube … were taken unlawfully from Viacom’s copyrighted works without authorization.” In defense, Google and YouTube asserted DMCA section 512. This so-called ”safe harbor” limits ISP liability for copyright infringement in certain situations. Whether defendants in copyright cases enjoy the limitation of liability is based on, among other things, their knowledge of — and response to – infringing activity on their service of which they become aware. Read more »

FTC Posts Endorsement Guide FAQs

Yesterday, the Federal Trade Commission released answers to frequently asked questions about its Guides Concerning the Use of Endorsements and Testimonials in Advertising. These FAQs provide helpful additional guidance regarding the FTC’s revisions to the Guides.  Key issues addressed by the FAQs include: Read more »

Alleged Prostitution Ads Continue to Dog Craigslist

A New York Times article reports on the increasing attention Craigslist is receiving from law enforcement officials for its alleged failure to remove ads for prostitution from its site. As we have reported, Craigslist has so far been able to deploy the Communications Decency Act’s safe harbor provisions to elude legal liability for posts that violate prostitution laws. The article notes that Craigslist is on track to boost revenue 22% this year, “largely from its controversial sex advertisements.” UPDATE MAY 4: The Times is now reporting that the Attorney General of Connecticut has served a subpoena on Craigslist. The article quotes the attorney general’s position: ”We are asking Craigslist for specific answers about steps to screen and stop sex-for-money offers — and whether the company is actually profiting from prostitution ads that it promised the states and public that it would try to block.”

FCC Incurs Net Loss in Battle for Net Neutrality

The FCC’s mission of promoting Internet neutrality suffered a significant setback yesterday when the D.C. Court of Appeals ruled in Comcast Corp. v. Federal Communication Commission  that the FCC lacked authority to prohibit Internet service providers from monitoring and restricting their subscribers’ use of certain peer-to-peer applications.

The controversy arose in 2007 after Comcast subscribers noticed that the company was impeding their use of BitTorrent, an open source, peer-to-peer networking protocol that has rapidly grown in popularity due to its speed and efficiency, but has notoriously been exploited for the unlawful exchange of copyrighted material.  Read more »

Do You Use SSL On Your Site?

If you are a provider of sensitive Web-based services, do you send all data exclusively using secure sockets layer (SSL) protocol?  The Electronic Frontier Foundation — citing a March 17th FTC “roundtable” speech by Commissioner Pamela Jones Harbour  –  reports that SSL is now on the FTC’s agenda.  While the largest Web services (Yahoo!, Facebook) will give a lot of thought to Commissioner Jones’ comments, we believe all providers of cloud-based services that trade in sensitive information should give their users the option of using SSL (or, better yet, default to SSL).  Not only does this demonstrate a commitment to protecting sensitive information about customers, it also helps minimize online fraud and data theft.

Federal Court: Whether UGC Trumps CDA Is a Jury Question

A recent ruling by a U.S. District Judge for the District of Connecticut suggests that a Web site operator may not be entitled to immunity under Section 230 of the Communications Decency Act (”CDA”) when hosting certain user generated content. It’s an important decision for any advertiser that solicits creative work from its customers.

This dispute centered on an advertising campaign created by Quiznos to highlight the differences between its sandwiches and Subway sandwiches. After launching a television ad campaign, Quiznos partnered with iFilm on an Internet contest called the “Quiznos v. Subway TV Ad Challenge.” Quiznos asked entrants to create videos showing “why you think Quiznos is better.”  Quiznos and iFilm posted sample videos on the contest site, as well as contestant videos.  

Read more »

Maine Ready to Repeal Online Marketing Law

We reported last year about the passage by Maine of a sweeping law governing online marketing to minors under 18 years old. After being challenged as unconstitutional by a coalition of major Internet companies that included Yahoo and AOL,  a committee of the Maine legislature last week voted to repeal the law, according to a report in Media Post. The full Maine legislature will vote on the repeal in the coming weeks, according to the article.

Legal Win for Google AdWords

A California federal court has handed Google a legal victory in a battle over its successful AdWords platform. 

The plaintiff in Jurin v. Google Inc. sells building materials to contractors and homeowners. Plaintiff sells the materials under its ”StyroTrim” trademark. The plaintiff was upset to learn that Google’s AdWords program had “suggested” StyroTrim as a keyword. Competitors allegedly bid on the term and then appeared in the “sponsored links” accompanying searches for StyroTrim — sometimes in a higher “position” than Jurin’s company. Plaintiff alleged Google’s AdWords infringed the StyroTrim trademark and constituted false advertising under the Lanham Act. Plaintiff also alleged the AdWords “sponsored links” constituted a “false designation of [the] origin [of Styrotrim materials]” under that act. Finally, plaintiff claimed Google had negligently and intentionally interfered with plaintiff’s contractual relations with its customers. Google moved to dismiss these claims. Read more »