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Safeway agreed in settlement of a lawsuit brought by visually-impaired customers in California and Washington State to ensure that its website, which allows people to order groceries online and have them delivered to their homes, is accessible to persons with disabilities.  Safeway has already made significant enhancements to its online shopping website to meet the agreed-to standard and will continue to do so over the next year pursuant to the settlement.
Continue Reading Safeway Settles ADA Accessibility Lawsuit, Makes Grocery Website Accessible to Visually Impaired

On October 22, Rep. Marsha Blackburn (R-TN) introduced a bill serving to “provide for regulating medical software, and for other purposes” in the House of Representatives.  The bill, entitled the Sensible Oversight for Technology which Advances Regulatory Efficiency (“SOFTWARE”) Act (“the bill”), was co-sponsored by a bi-partisan group of lawmakers.

The bill creates a regulatory scheme based on three newly defined categories of software—“medical software,” “clinical software,” and “health software.”  Although the bill proposes to carve out “medical software” from the definition of “device” in Section 201(h) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 321) (“the Act”), medical software would be subject to the same regulatory requirements as medical devices under the Act.  In contrast, “clinical software” and “health software” would not be subject to regulation under the Act.

The bill defines medical software as software intended for human or animal use that is intended to be marketed (1) “to directly change the structure or any function of the body of man or other animals;” or (2) for “use by consumers and makes recommendations for clinical action that (i) includes the use of a drug, device, or procedure to cure or treat a disease or other condition without requiring the involvement of a health care provider; and (ii) if followed, would change the structure or any function of the body of man or other animals. . . .”  Medical software does not include software “whose primary purpose is integral to the functioning of a drug or device” or software that is a “component of a device;” such software presumably would continue to be regulated as part of the “parent” device or drug product.
Continue Reading House to Consider Bill Excluding Clinical and Health Software from Regulation as Medical Devices

On Monday, FDA released a final version of its guidance document, Mobile Medical Applications: Guidance for Industry and Food and Drug Administration Staff.    The guidance describes FDA’s approach for regulating certain mobile applications (apps) as medical devices under the Federal Food, Drug, and Cosmetic Act (FDCA).

Although the final guidance retains the basic framework…
Continue Reading FDA Releases Final Mobile Medical Apps Guidance

News organizations are more likely to be liable in privacy lawsuits if their reporting is factually incorrect, according to a federal court opinion issued this week.

Shana Edme, who was pursuing a modeling career, uploaded her modeling photographs to Modelmayhem, an industry website.  She alleges that in 2011, the site released pictures of her in…
Continue Reading New Opinion Examines Privacy Claims Against Online Media

 By Kurt Wimmer and Jeff Kosseff

The Senate Judiciary Committee on Thursday approved a bill that would prevent federal prosecutors, agencies and civil litigants from forcing journalists to reveal their confidential sources without court approval.

In a 13-5 vote, the committee approved S. 987, the Free Flow of Information Act (FFIA), which is sponsored…
Continue Reading Senate Judiciary Committee Approves Media Shield Law

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

The recently enacted federal ban on libel tourism is making it more difficult for plaintiffs to sue U.S. defendants in countries that afford weaker free speech protections.  Last week, in the first federal appellate opinion to apply the new statute, the U.S. Court of Appeals for the Fifth Circuit held that plaintiffs cannot collect damages…
Continue Reading Federal Court Blocks Enforcement of Canadian Defamation Judgment

Yesterday, the U.S. Senate Subcommittee on Consumer Protection, Product Safety and Insurance held a hearing entitled, “Stopping Fraudulent Robocall Scams: Can More Be Done?”   The hearing takes place two weeks after the FTC celebrated the ten-year anniversary of the its implementation of the Do Not Call Registry and on the heels of the FTC’s recent announcement that Mortgage Investors Corporation has agreed to pay $7.5 million (the largest Do Not Call fine the FTC has ever collected) to resolve FTC allegations that it violated provisions of the FTC’s Telemarketing Sales Rule (TSR).  The Federal Communications Commission, which has authority under the Telephone Consumer Protection Act of 1991 (TCPA) to regulate prerecorded and auto-dialed calls, shares jurisdiction with the FTC over so-called robocallers.

Witnesses from both agencies participated in the hearing and highlighted their respective enforcement efforts.    Lois Greisman, Associate Director, Division of Marketing Practices, Bureau of Consumer Protection, FTC, noted that there have been 105 FTC enforcement actions since the Commission began enforcement of the Do Not Call provisions.  Eric Bash, Associate Bureau Chief, Enforcement Bureau, FCC, noted that the FCC has issued more than 500 citations for robocall violations pursuant to its authority under the TCPA.  Mr. Bash’s written testimony describes the FCC’s enforcement authority:

In this day and age of heavy mobile phone use, it may be worth repeating that the FCC’s rules flatly prohibit all autodialed or prerecorded calls to mobile phones made for a non-emergency purpose without the called party’s permission. It does not matter whether the call is to persuade the called party to buy some thing or to support some cause. And, despite common mischaracterizations of the law, it does not matter whether the called party is charged for the call, or whether the content of a message is blasted by text or voice. (The FCC has been clear that “autodialed” text messages fit within the restriction.)

The applicability of the FCC’s rules to text messages has been the source of a significant volume of litigation.

Mr. Bash urged Congress to give the FCC the authority to pursue robocall violators without having to issues citations, expand the statute of limitations from one year to two, extend robocall prohibitions outside of U.S. jurisdiction, and give the FCC authority over third-party spoofing providers. 
Continue Reading FTC, FCC Testify Before Senate On Robocall Fraud

By Dan Cooper and Oliver Grazebrook

On 20 June 2103, the Court of Rome in Italy ruled that the Wikimedia Foundation (the charitable organisation that operates Wikipedia) could not be liable for defamatory content posted by users on its site.  The court deemed that Wikimedia fell within the exemptions in the Italian transposition of Articles…
Continue Reading Italian Court Finds that Wikimedia is Not Liable for Defamatory Comments

We are pleased to share that The Lawyer has recently shortlisted our London technology and media group for its TMT Team of the Year Award (2013). The publication further recognized the firm’s data protection and sports law work over the past year and our involvement in the 2012 London Olympic and Paralympic Games. We congratulate…
Continue Reading ‘The Lawyer’ Recognizes Covington’s Technology and Media Group