Volume 7, Issue 1, January 2016 SOCIALLY AWARE 2011 BEST Law FIRM NEWSLETTER THE SOCIAL MEDIA law UPDATE IN THIS ISSUE Three Steps to Help Ensure the Enforceability of Your Website’s Terms of Use Page 2 FTC Continues Enforcing Ad Disclosure Obligations in New Media and Issues a Warning to Advertisers Page 4 The Top Social Media Platforms’ Efforts to Control Cyber-Harassment Page 5 California Passes Four Bills Protecting Privacy Rights Page 7 How UK Brands That Use Vlogger Endorsements & Social Media for Marketing Can Stay on the Right Side of the Law Page 8 EDITORS John F. Delaney Aaron P. Rubin Happy 2016! Welcome to the newest issue of Socially Aware, our CONTRIBUTORS Burton Award-winning guide to the law and business of social media. Adam J. Fleisher Aaron P. Rubin In this edition, we offer practical tips to help ensure the enforceability Libby J. Greismann Scott M. Sawyer Susan McLean Miriam H. Wugmeister of website terms of use; we discuss the FTC’s ongoing efforts to Julie O’Neill Daniel A. Zlatnik enforce disclosure obligations in social media advertising; we examine Dom Rothbarth efforts by top social media platforms to control cyber-harassment and explicit material; we take a look at four recently passed laws protecting FOLLOW US Californians' privacy rights; and we explore legal issues that UK brands Morrison & Foerster’s need to consider when engaging in vlogger endorsements and social Socially Aware Blog media marketing. @MoFoSocMedia All this—plus an infographic listing 2015's most popular social media trends. For example, in Nguyen v. Barnes & Instead, such website operators THREE STEPS TO Noble, Inc., Barnes & Noble did include present a link to the terms alongside HELP ENSURE THE a relatively clear link to its website a checkbox or button. Courts have terms on its checkout page, but nothing ratified this type of implementation as ENFORCEABILITY required users to affirmatively indicate long as it is abundantly clear that the that they accepted the terms. The Ninth link contains the website terms and OF YOUR Circuit held, therefore, that Barnes & that checking a box or clicking a button WEBSITE’S TERMS Noble could not enforce the arbitration indicates acceptance of those terms. provision contained in the terms. This was essentially the implementation OF USE While the specific outcome in Barnes at issue in a 2012 case from the By Aaron P. Rubin and & Noble arguably is part of a Ninth Southern District of New York, Fteja Daniel A. Zlatnik Circuit trend of declining to enforce v. Facebook, Inc. Specifically, signing arbitration clauses on the grounds that up for Facebook required users to Operators of social media platforms and no contract had been formed, nothing click a button labeled “Sign Up,” and other websites typically manage their in the opinion limits the Ninth Circuit’s immediately below that button was risks by imposing terms of use or terms holding to arbitration provisions. The the text, “By clicking Sign Up, you are of service for the sites. As we previously case is an important cautionary tale for indicating that you have read and agree wrote, websites must implement all website operators. to the Terms of Service.” The phrase such terms properly to ensure that “Terms of Service” was underlined they are enforceable. Specifically, and operated as a link to the terms. users must be required to manifest The gold-standard The court reasoned that whether the acceptance of the terms in a manner plaintiff read the terms of service was that results in an enforceable contract. implementation is to irrelevant because, for the plaintiff But what specifically constitutes such display the full text and others “to whom the internet is acceptance, and what steps should an indispensable part of daily life,” website operators take to memorialize of the website terms clicking on such a link “is the twenty- and maintain the resulting contract? above or below that first century equivalent” of turning over This article attempts to answer these checkbox or button. a cruise ticket to read the terms printed practical questions. on the back. As sure as vacationers know they can read the small print on USE BOXES OR BUTTONS their cruise tickets to find the terms TO REQUIRE AFFIRMATIVE To avoid the Barnes & Noble outcome, they accept by embarking on the cruise, ACCEPTANCE website operators should implement the plaintiff knew where he could two key features when users first Website operators should avoid read the terms of use he accepted by attempt to complete an interaction with the cardinal sin in online contract using Facebook. The parties formed an the site, such as making a purchase, formation: burying terms of use in a enforceable contract once the plaintiff registering an account, or posting link at the bottom of a website and clicked the “Sign Up” button. content: (1) present website terms attempting to bind users to those conspicuously, and (2) require users to This reasoning, however, does terms based merely on their use of click a checkbox or an “I accept” button not necessarily mean that an the website. Outside of some specific accompanying the terms. The gold- implementation like the one at issue (and, for our purposes, not particularly standard implementation is to display in Fteja will always will result in an relevant) circumstances, such the full text of the website terms above enforceable contract. Because it relied approaches, often confusingly referred or below that checkbox or button. If on the plaintiff’s admitted proficiency to as “browsewrap” agreements, will not they fit on a single page, that is helpful, in using computers and the Internet, result in a valid contract because there but an easy-to-use scroll box can work the court likened the “Terms of Service” is no objective manifestation of assent. as well. Website operators taking the link to the backside of a cruise ticket. (Note, though, that even so-called scroll box approach may consider This leaves room to argue for a different browsewrap terms may be helpful in requiring users to actually scroll outcome when a website operator some circumstances, as we described in through the terms before accepting should expect that novice computer this post.) them. users will be among its visitors. The Moreover, even website terms simple way to avoid that (perhaps Many website operators, however, presented through a “conspicuous” link far-fetched) argument is to expressly choose not to present the terms may not be enforceable if users are not identify the hyperlink as a means to themselves on the page where a user required to affirmatively accept them. read the contract terms. That approach is required to indicate acceptance. 2 Socially Aware, January 2016 succeeded in Snap-On Business Solutions v. O’Neil & Assocs., where the website expressly instructed users, “[i]mmediately SOCIAL LOOK following this text is a green box with an arrow that users may MEDIA BACK click to view the entire EULA.” These cases illustrate how important it is to expressly connect users’ affirmative actions to the terms of use. In particular, the checkbox or button and accompanying text should clearly indicate that the user’s click signifies acceptance of the website terms. The terms should be presented in a clear, readable 2015 typeface and be printable, and the “call to action” text should be unambiguous—not susceptible to interpretation as anything other than acceptance of the website terms. • Most discussed topic (U.S.): Here are some examples: U.S. Presidential Election (2nd—Marriage Equality) • “By checking this box, I agree to the ‘Terms of Use’ • Most talked about athlete (global): presented above on this page.” Floyd Mayweather, Jr. • “By clicking ‘I Accept’ immediately below, I agree to the Facebook1 • Most talked about entertainer (global): ‘Terms of Service’ presented in the scroll box above.” Ed Sheeran • “Check this box ¨ to indicate that you accept the Terms • Most talked about movie (global): of Use (click this link to read the Terms of Use).” (In this Star Wars: The Force Awakens example, the website terms would be presented through a link, as in the Fteja case. The added instruction, “click this link to read the Terms of Use,” avoids any potential • Most liked photo: Kendall Jenner’s Heart Hair argument that a Fteja-type implementation only works • Most used hashtag: #LOVE where users can be assumed not to be novice computer • Most followed account: Taylor Swift users.) • Most followed brands: National Geographic, Nike, and Victoria’s Secret ENSURE YOU CAN PROVE AFFIRMATIVE ACCEPTANCE 2 Instagram Even website operators that properly implement website terms often neglect another important task: making sure they can prove that a particular user accepted the terms. One • Most popular hashtags: Overall: #LOVE, common approach—to present declarations from employees— Music: #OneDirection, TV: #KCA (Kids’ is illustrated in Moretti v. Hertz Corp., a 2014 case from the News: Choice Awards), #jobs, #Quran, Northern District of California. The employees in that case #ISIS, #PrayForParis, #LoveWins affirmed via declarations that (1) a user could not have used the 3 • Most tech brands : #iPad, #SoundCloud, website without accepting the website terms, and (2) the terms #Android, #Periscope, and #iPhone Twitter included the relevant provision when the use took place. The approach in Moretti, however, has a potential weakness: it depends on declarants’ credibility and their personal memory • Top Trending videos of 2015 (global): of when the terms of service included certain provisions. - Silento—Watch Me (Whip/Nae Nae) Website operators can address that vulnerability by emailing a - Clash of Clans: Revenge (Official confirmation to users after they accept the website terms and Super Bowl TV Commercial) then archiving copies of those messages. To limit the volume of email users receive, this confirmation could be included - Crazy Plastic Ball PRANK!! 4 with other communications, such as messages confirming an - Love Has No Labels | Diversity & YouTube order or registration.