Social Media

On Wednesday, May 7, Covington attorneys Stefanie Doebler and Saurabh Anand will be participating in a webinar that might be of interest to many of the readers of this blog.  The presentation, entitled “Advertising Drugs and Health Care Products via Social Media,” will provide attendees with an overview of a recent FDA draft guidance addressing…
Continue Reading Upcoming Webinar: “Advertising Drugs and Health Care Products via Social Media: FDA Regulation”

On March 12, FDA’s Office of Prescription Drug Promotion (“OPDP”) posted an untitled letter on its webpage alleging that Institut Biochimique SA’s (“IBSA”) Facebook page for the drug Tirosint® misbranded the drug.  The untitled letter is particularly noteworthy for its focus on one statement on a firm’s Facebook page.
Continue Reading FDA Issues Untitled Letter Focused On Promotional Claims On Facebook

On January 13, 2014, FDA issued a draft guidance document entitled “Fulfilling Regulatory Requirements for Postmarketing Submissions of Interactive Promotional Media for Prescription Human and Animal Drugs and Biologics.”  This draft guidance addresses the procedural topic of submitting Forms FDA 2253 and 2301 when firms use social media such as blogs, microblogs, social…
Continue Reading FDA Issues Draft Guidance on Postmarketing Requirements for Promotion on Social Media

A federal appellate court on Wednesday ruled that the First Amendment protects the act of “liking” on Facebook or other social media.

In Bland v. Roberts, a sheriff’s deputy “liked” the Facebook page of the candidate who was challenging the incumbent sheriff in the upcoming elections.  After the incumbent won re-election, the deputy was…
Continue Reading First Amendment Protects ‘Liking’ on Social Media

The Federal Trade Commission will host a workshop on December 4, 2013 in Washington, DC to examine so-called “native advertising.”  This term refers to the practice of blending advertisements with news, entertainment, and other content in digital media and is sometimes also referred to as “sponsored content.”  As an FTC blog post explains, “[w]hatever the name, it’s for sure ads in digital media are starting to look a lot more like the surrounding content.  What are the consumer protection implications now that those lines appear to be blurring?”

According to the Commission, the workshop builds on previous Commission initiatives, such as the Dot Com Disclosures guidance and the Endorsements and Testimonials guidance, to “help ensure that consumers can identify advertisements as advertising wherever they appear.”  The FTC noted a number of questions and topics that may be covered at the workshop, including:

  • What is the origin and purpose of the wall between regular content and advertising, and what challenges do publishers face in maintaining that wall in digital media, including in the mobile environment?
  • In what ways are paid messages integrated into, or presented as, regular content and in what contexts does this integration occur?  How does it differ when paid messages are displayed within mobile apps and on smart phones and other mobile devices?
    Continue Reading FTC Announces Workshop To Examine Native Ads

A North Carolina appellate court recently held that a statewide ban on sex offenders’ access to social media violates the First Amendment. The opinion is the latest in a string of recent federal and state court decisions to recognize a First Amendment right to access social media.

In 2008, North Carolina’s General Assembly enacted the…
Continue Reading Courts Recognize First Amendment Right to Social Media Use

New Jersey has enacted restrictions on the ability of employers to access employees’ social media accounts, becoming the twelfth state to enact such legislation. More than 30 state legislatures have considered bills on the topic in 2013, according to the National Conference of State Legislatures.

New Restrictions in New Jersey

New Jersey’s new law, signed by Governor Chris Christie on August 29 and effective December 1, generally prohibits employers from requiring or requesting that employees or prospective employees “provide or disclose any user name or password, or in any way provide the employer access to, a personal account through an electronic communications device.” Employers also may not require individuals to waive the law’s protections or retaliate against individuals who refuse prohibited requests or file complaints with the Commissioner of Labor and Workforce Development about violations of the law. An earlier version of the law, passed by the legislature but vetoed by Gov. Christie, also would have allowed aggrieved individuals to file civil suits for injunctions, damages, and reasonable attorneys’ fees and court costs.
Continue Reading New Jersey Restricts Employer Access to Employees’ Personal Online Accounts

Alibaba, China’s largest e-commerce company, recently made headlines by committing to purchase an 18% stake in Weibo, China’s largest microblogging platform, for $586 million. The deal reportedly gives Alibaba an option to increase its stake to 30%.

The alliance will allow Alibaba to drive more web traffic to its e-commerce sites.  With over…
Continue Reading Chinese E-Commerce Giant Joins Forces with China’s Largest Microblogging Platform

On April 29, Craigslist was successful in fighting off a motion to dismiss filed by three screenscraping sites (3Taps, Padmapper and Lovely) in its pending litigation in the Northern District of California.   In Craigslist Inc. v. 3Taps Inc., No. CV 12-03816 (N.D. Cal.), Craigslist sued these sites, alleging that their scraping of Craigslist content…
Continue Reading Craigslist wins first step against screenscapers – lesson for drafting TOUs

The SEC has confirmed that public companies can use social media outlets like Facebook and Twitter to disseminate material information, provided that investors are alerted in advance that information will be disclosed in this fashion.

This guidance came in a Report of Investigation under Section 21(a) of the Securities and Exchange Act of 1934, issued on April 2, 2013.  The underlying investigation concerned Netflix, Inc., and its CEO Reed Hastings.  Last July, Hastings announced on his personal Facebook page that June 2012 marked the first month that Netflix had streamed more than one billion hours of content.  No press release or Current Report on Form 8-K accompanied the Facebook post.  Despite prior announcements that it was nearing a billion hours of monthly streamed content and the fact that its revenue model is subscription-based, the price of Netflix common stock increased 16% over the next trading day.


Continue Reading SEC Approves Use of Social Media to Communicate With Investors, But Warns Companies to Proceed With Caution