Marketers are always looking for more effective ways to entice consumers, with the goal to build a brand and sell more products and services. Long ago, armed with the knowledge that people enjoy winning prizes, savvy promoters began offering promotional contests and sweepstakes, which encourage consumers to participate in a marketing initiative in exchange for the chance to win certain giveaways. Winners of sweepstakes are chosen by luck of the draw, while contest prizes are typically awarded to entrants who best perform a given task. When administered effectively, these promotions can create buzz around a particular product or service, drive traffic to a storefront, produce user-generated advertising content and build marketing lists.
As time progressed, sponsors began redeploying the age-old concepts of promotional contests and sweepstakes on the Internet through the use of high-tech websites and social media platforms. However, as promotions have become more interactive and publicly accessible, sponsors become more susceptible to certain legal risks surrounding intellectual property (or “IP”) – including images, names, symbols, designs, written text, inventions and other materials. This article explores many of these IP-related legal concerns and considers some steps that sweepstakes and contest sponsors may take in an effort to minimize risk.
The Stored Communications Act, as it stands now, with no further legislation, creates an issue for modern technology that will only be exacerbated by the innovation of new technology services and platforms. The simple request of a decedent’s Facebook information implicates several historical legal issues of privacy, ownership of content, and fiduciary rights, which all seem to further muddy the already murky water created by the SCA. It has been noted that Facebook is used for more than just a storage or communication service. It offers many different services that seem to expand and evolve each year, which will only continue to compound the issue with no change in the current laws.
While much of this tangled area of the law is a creature of failure to update and evolve the laws regulating an evolving market, some fault can be placed on service providers such as Facebook. The Terms of Service agreements entered into are at focus of this issue and are currently the easiest and fastest way to achieve clarity. Facebook and other service providers should update their terms of service to (1) give express “authorization” to fiduciaries to access these accounts, (2) explicitly state that lawful fiduciaries have been given “lawful consent” to access the account’s content, and (3) explicitly give notice to account holders whether their information will be transferable upon death. Simply put these changes would take fiduciaries out of harm’s way of criminal penalties, allow Facebook to voluntarily distribute materials to fiduciaries and give notice to account holders.
Facebook Allows You to Report Suicidal Users
Facebook plans to release new tools that will make it easier for users to inform Facebook about other users who are demonstrating suicidal thoughts. Once Facebook receives the information about the user in distress, it will reach out to that user to see if he or she needs help. At present, Facebook does offer some support to users who may be feeling suicidal but it is primarily in the form of a referral service. This new feature goes much further and involves direct contact by Facebook, which does raise some privacy concerns. To read more about Facebook’s initiative go here.
Judge Fined $11.5K for Facebook Post
Abstract: “Revenge porn,” referring to the distribution of sexually explicit images without the consent of those featured, is a growing problem in the United States. New Jersey and California were the first states to criminalize the practice, but state legislatures around the country have been passing and considering similar laws in recent months. Proponents of legislation, however, are confronting critics who protest that the First Amendment precludes criminal liability for distributing lawfully acquired true material.
This Note provides the first in-depth analysis of how obscenity law can and should be used to criminalize revenge porn within the boundaries of the First Amendment. While no state legislature has characterized revenge porn as obscenity, this Note argues they should because the obscenity context provides the greatest insulation from a First Amendment challenge. If drafted to prohibit ob- scenity, such laws would enable states to robustly and constitutionally criminalize revenge porn, even when the photographer is the person objecting to distribution or the distributor acts without intent to cause serious emotional distress. The hope is this Note will guide legislatures to draft constitutionally responsible legis- lation to combat revenge porn.