Private Online Groups May Not Be Private

Child’s Playhouse, Bayreuth, Germany by Dave Shafer from Flickr (Creative Commons License)

I was contacted by person who claimed to be a member of a private Facebook group. She asked if she had any options for recourse when another group member used statements from her post in another article online. This group member also used a pixelated version of the person’s Facebook profile picture. According to the person, she wasn’t recognizable in the altered image, but she feared people could figure it out if they compared to her profile picture to the pixelated one.

No Expectation of Privacy in Online Posts
To anyone in this type of situation, I’m sorry to dash your hopes for vindication, but in most situations, there is no expectation of privacy in what you post on the internet – especially on social media, regardless of the privacy settings. It’s too easy for someone to create a screenshot, save, and/or share a post. Moreover, you never know who is looking over a user’s shoulder or with whom they’ll share their screen when they’re viewing your post that is meant for their eyes only.

This is true even when an online group is labeled as “private” or “closed.”  In many private or closed Facebook group, other members can invite outsiders to join or a new person can join if their request to be added is approved by one member of the group. Even though a private group is meant for a limited audience, post with care. You never know where a post will end up. This is why one of my rules of thumb for the internet is “Don’t post anything online that you wouldn’t put on the front page of the newspaper.”

If You Want Real Privacy
If you want to have a private conversation, keep it offline with your closest confidants or someone with who you have a confidential relationship (e.g. doctor, lawyer, therapist, priest). In a professional setting, have a written non-disclosure agreement(NDA) where everyone is contractually obligated to maintained your confidences.

Even I use NDAs. I have certain people, where when we sit down for a drink, we start the conversation by saying, “Standing NDA” and we know nothing said between us will be shared with outsiders.

The Internet is Not a Place for Privacy
If there are times when you want to speak online while maintaining a level of privacy, you can reduce the risk of being connected to a statement by using an online alter ego. If you go this route, be prepared to be unmasked and live with the consequences at any time. You may use an IP address or post something that will give away your true identity.

If you want a resource regarding the legal dos and don’ts about the internet, including additional information about online privacy, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you need legal help regarding internet privacy, you can contact me directly or a social media lawyer in your community. I post about these issues on TwitterFacebookYouTube, and LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Trademark Rights in Website Domains

Business Entrepreneurs by Airsoftpal.com (Creative Commons License)

I regularly get questions about whether a person should use a business name based on whether their desired website domain in available. There is also the reverse – if a company has a registered trademark, is it a deal-breaker if you want to use a similar name for your business? For example, if a company has a registered trademark for The Ooga Booga and the domain theoogabooga.com for their children’s book series, does that mean you can’t have the domain, oogabooga.com for your business?

Ooga Booga is my default fake trademark when describing trademark concepts. As of this writing (3/5/2017), no one has a registered trademark in the U.S. for “Ooga Booga.”

Two Parts to a Trademark
There are two elements to every trademark – the mark itself and the product or service with which you are using it. It’s possible for two different companies to use the same trademark so long as the products and services with which they are using it are so different that no consumer will be confused about what they’re buying. That’s why it’s possible to have Delta Faucet, Delta Airlines, and Delta Dental. No one would think these products and services come from the same company.

Do your Homework when Selecting a Domain
When it comes to selecting your company or product name and the corresponding domain, be thoughtful. Do you some searches to see if other companies have similar domains and how they are using them.

If you see someone using a domain that is similar to yours, or a product or company domain that has a corresponding registered trademark, it’s not necessarily a deal-breaker for your business plans, but you may want to do further research. There’s nothing wrong with two companies have similar websites as long as you have a legitimate reason for using it and you’re not violating the other company’s rights.

Let’s say you wanted oogabooga.com as your website, examine the difference between your product or service and the registered trademark for The Ooga Booga. They sell children’s books; so as long as your product or service isn’t in the arena as children’s entertainment, education, or related products, you could be ok. Most likely, no one will think that your affiliated with this other company if you’re selling something like wetsuits, wine, or financial planning services.

If you’re in a situation where you don’t want other companies having a similar domain as yours, spend the money to buy these other domains. It’s cheaper and easier to have a slew of domains related to your product rather than invest time and money monitoring, sending cease and desist letter, or pursuing other legal action against these other companies.

Only the Trademark Holder is a Threat
The good news in this type of situation is only the person who owns the trademark or other intellectual property rights can go after you for suspected infringement. If they don’t know or don’t care about what you’re doing, you face any legitimate legal threats.

Of course, when in doubt, consult a trademark lawyer to discuss your thoughts about your business or product name and website domains. If you’re interested in discussing your trademark needs, you can contact me directly or an intellectual property lawyer in your community. I regularly post about legal issues impacting entrepreneurs on TwitterFacebookYouTube, and LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

More Information about Trademarks:

Photo credit: Airsoft Pal

How to have an Anonymous LLC

Anonymous by Poster Boy NYC from Flickr (Creative Commons License)

Here’s the easy answer: You don’t.

It may be impossible to own an LLC anonymously. There’s always a paper trail and financial records that eventually lead to you.

Burying Your Identity in Your LLC
Creating an LLC requires paperwork and money. The Articles of Organization that are filed with the State are public records. If you didn’t want to have your name on your company, you set up layers of companies that own companies that own your LLC so it would take longer to trace it back to you. You could also set up a blind trust where you are the beneficiary. That would keep your name off the public records, but there would still be documents somewhere that show the connection. (Because business filing are public records, I often recommend that clients not use their home address as their business address. There are many low-cost mailbox services.)

Even if your name is not on the company as an owner, there would still be the records of payments to you. It may require a court order for someone to gain access to this information, but it would be telling if the majority of payments from the company (or companies if you ran it through multiple entities) went to a single person.

When someone asks how to be an anonymous owner of a company, it raises a red flag for me about their motivations and their business activities. If a company or person is controversial or engaging in potentially malicious acts, it may raise enough eyebrows that someone will be motivated to take a closer look at its inner workings.

How to Run a Website Anonymously
Conversely, it may be possible to operate a website relatively anonymously. You would have to essentially divorce yourself from the website:

  • Use an email address for the website registration that isn’t otherwise connected to you. Don’t access this email using your phone.
  • Pay for the website with a pre-paid credit card.
  • Use a web hosting service that protects your information.
  • Only access the website using public wifi. Never access it from work or home.
  • Turn off your phone when working on your website – so the GPS in your phone will be turned off.
  • Consider using an app that masks or mocks your GPS location when you access the internet.

Even when you take all the precautions to be anonymous online, be prepared to be unmasked at anytime. Whatever you say anonymous, you best be ready to own it once your name and face are attached to it.

If you want a resource regarding the legal dos and don’ts regarding posts on the internet, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you need legal help regarding internet privacy, you can contact me directly or a social media lawyer in your community. I post about these issues on TwitterFacebookYouTube, and LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Lawsuit Filed to Unmask Anonymous Penis Sender

Don’t Mess with Texas by Jamie from Flickr (Creative Commons License)

Last week, Melody Lenox filed a lawsuit in Dallas County, Texas for a court order to determine who sent her a penis-shaped gummy candies via Dicks By Mail.

At first, this sounded like an extreme reaction. If someone spent $15 to send me candy via mail with a note that says “Eat a Bag of Dicks,” I’d probably laugh, and then eat them – because gummy candies are delicious. However, learning about the larger context of the situation, Lenox’s reaction seems reasonable.

The Bigger Story
Lenox is the head of human resources at Axxess Technology Solutions, a position that requires her to be the bearer of bad news to some employees. Prior to this unsolicited dick package, she allegedly had her car keyed and was the target of fake posts on Craigslist. She asserts that these acts are related.

In this context, pursuing a harassment lawsuit against the sender of these candies (assuming the same person(s) are committing these acts), makes sense. Ongoing acts like this are unacceptable.

What I suspect is happening in this case is Lenox filed a lawsuit against John Doe and then requested a court order to get the purchase information from Dicks By Mail. (Many companies have privacy policies that state they’ll protect your information unless they are required to provide it in response to a court order.) While it’s easy to key a car or post a fake Craigslist post anonymously, sending candy by mail requires a credit card, which will eventually lead to a real person – the suspected harasser.

Unmasking the Anonymous
Anytime you do something anonymously, be prepared to be unmasked. When you act anonymously online, there’s always a digital paper trail that shows the IP address of the internet connection used, the GPS location of your smartphone, the profile information of an anonymous website or social media profile, and in this case, the credit card information used for the transaction.

There have been plenty of situations where a person lost their job or found themselves in a lawsuit when their anonymous persona was unmasked. Using the internet is not an effective way to maintain your anonymity – unless you have mad skills in this area. (And if you have to question whether you have mad skills, you don’t.)

More about Dicks By Mail

Photo from Dicks By Mail

Dicks By Mail is a hilarious way to send a light-hearted sugar-filled message. The company does not endorse the use of their service to threaten or bully someone. If you receive Dicks By Mail it should only be for two reasons: “[S]omeone thinks you’re either a dick or wanted you to laugh!”

And they do caution people who come to the site with vindictive intent: If you are sending this with the intent to ruin someone’s day, then maybe it’s you who needs to eat a bag of dicks.”

In case you were wondering, yes, Dicks By Mail is a U.S.-based business, so if you want to stimulate the economy while telling your elected officials what you think of them, this may be a creative way to send a message (though, it may not be effective since they won’t know it came from a constituent).

The laws that apply to the internet are constantly evolving as the courts are encountering more internet-based problems. If you want to connect with me to keep up with my thoughts about social media law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

What’s Up with YouTube Pulling Ads from Videos?

Speak No Evil by Robert Young from Flickr (Creative Commons License)

Speak No Evil by Robert Young from Flickr (Creative Commons License)

In the last week, several people have posted that YouTube pulled the ads from their videos because their content wasn’t “advertiser-friendly.”

What’s Advertiser-Friendly Content?
According to YouTube policies, ads can only be run on content that’s all-ages appropriate. “It has little to no inappropriate or mature content in the video stream, thumbnail, or metadata (such as in the video title). If the video does contain inappropriate content, the context is usually newsworthy or comedic and the creator’s intent is to inform or entertain (not offend or shock).”

According to YouTube, you can’t run ads against content that contains the following:

  • Sexually suggestive content;
  • Violence
  • Profanity or vulgar language
  • Harassment
  • Promotion of drugs
  • Sensitive subjects – including, war, political conflicts, natural disasters, and tragedies

If a user repeatedly posts videos that violate this policy, YouTube may suspend monetization on your whole channel. This could be problematic for content creators who make a living in part from their YouTube channel(s).

Their Site, Their Rules
Reading the YouTube rules, it’s ok to create and post content that violates some of its advertiser-friendly guidelines, but not make money from it.

And don’t even think about trying to argue that YouTube is violating your First Amendment right to free speech. It’s their site so they make the rules. They’re not stopping you from creating and publishing content on your own forum, just setting the rules for their platform.

Compare this to a shopping mall. They control who can sell wares and what behavior is appropriate. If you break the rules – by screaming or walking a body bag through the food court (not that I’ve done that) – you can be asked to leave or even banned for a period of time. Likewise, if you scream obscenities on the street, the police might be called and you could get a ticket for disturbing the peace.

So, What’s Changed?
It appears that not much has changed on YouTube. The policy regarding advertiser-friendly content hasn’t changed, but rather how it’s enforced. Before, if a video violated this rule, they would merely turn off the monetization feature, and you may not notice the difference unless you checked your Video Manager. Now, YouTube is sending an email notice when they turn off monetization.

I went back and reviewed the law firm’s YouTube channel. I run ads on most videos, but I haven’t made a cent from YouTube. There’s only one video on which monetization was turned off. My other videos where I may occasionally swear and/or mention sexual content like “revenge porn” are still monetized. (Not that I expect to make money from my videos, but you never know.)

If you have an internet-based business that relies on another platform to make money, be sure you read the site’s terms of service before you design your business model around it. (Remember, there’s a good chance the site can change the rules at any time.) If you want to talk more about internet or social media law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Typical Sex Video Email Conversation

What Are You Looking At by nolifebeforecoffee from Flickr (Creative Commons License)

What Are You Looking At by nolifebeforecoffee from Flickr (Creative Commons License)

I regularly receive emails from people asking questions about the legalities related to intimate photos and videos – particularly situations when a third party has possession of them. Sometimes the third party allegedly obtained them nefariously and sometimes the people emailing me voluntarily sent the person photos or video and now they have concerns about what said person will do with them.

Now they have concerns?! These are questions they should have asked themselves before they sent the photos/video to begin with!

Here’s an example of how these conversations typically go. The text in italics are things I usually think, but don’t share with the other the person in the moment.

Prospective Client (PC): I made a video with my boyfriend and his ex got a hold of it. His ex is threatening to send it to my parents and post it. What can I do about this?

How did his ex get access to your sex video? This sounds like someone neither of you should have contact with.

ME: How old are you?

Please don’t be a child . . . please don’t be a child . . . please don’t be a child . . . (Yes, sometimes it’s a minor – or so they say.)

PC: 24.

ME: Thank goodness this isn’t a potential inadvertent kiddie porn situation.

You’re an adult. Besides being embarrassing, who cares if this person shows the video to your parents? (I’ve also had people email me claiming the third party is threatening to send it to the PC’s employer.)

ME: Where do you and the ex live?

In Arizona, merely threatening to post revenge porn is a felony.

PC: Nebraska.

Ok, well that’s outside the limits of my law license and revenge porn legal knowledge.

ME: Here’s the list of the current revenge porn and related laws in all 50 States. This will tell you how the laws in your State apply to these situations.

PC: I don’t know what to do. I want to go to the police but I don’t know if I can do that.

ME: Of course you can go to the police! Give them a call, explain your situation, and ask if there’s anything they can do to help you. They may be the best ones to know if this situation violates your State’s criminal law.

And maybe some local resources too that help people in these types of situations.

I get questions and hits on my site every day from people asking about intimate photos and videos, not all of which were taken with consent, and how to keep them from getting out. Unfortunately, I also get hits from people who want to post revenge porn without repercussions – which is disgusting.

When in doubt – don’t. Don’t create intimate photos or videos, don’t share them with others, and don’t post them online. What seemed like a good idea in the moment, may create long lasting regret, especially if it shows up when someone Googles your name. However, if you choose to create this type of material, do it with your device, keep it under password, and never let the files out of your control. Once this material is released, it’s hard to get it back or verify that every copy has been destroyed.

We’re still in the infancy of how we’re going to deal with intimate photos and videos from a social and legal perspective. If you want to chat with me about revenge porn, privacy, or any related topics, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here. If you think you’re the victim of revenge porn or threatened revenge porn, contact your local law enforcement agency.

Where to Put “#ad” on Instagram Posts

Free StuffLast month, Rosie and I attended BlogPaws – a conference for pet bloggers – where I taught a workshop with Chloe DiVita and Tom Collins on the Legal Dos and Don’ts of Blogging and Social Media.  We did a three-hour presentation that focused on copyright and the federal rules that apply to product reviews, campaigns, and promotions.

We reminded the audience that the Federal Trade Commission (FTC) requires people to provide their honest and accurate opinions when writing product reviews. If you have a relationship with a company – whether you got free product, you have a contract with them, or even if you have personal relationship with someone in the company, you always have to disclose these relationships – clearly and succinctly – in every post and platform you mention them. We also reviewed the Lord & Taylor fiasco. This was a good reminder for social media influencers not to assume the companies they work with will know these rules or provide proper guidance

After the workshop, I did one-on-one sessions with attendees. Per the conference organizers, each person only got 10-minutes, so it was like a legal information kissing booth – sit down, ask one question, and get out. One attendee asked, “I understand that I have to put #ad on all Instagram posts when I have a relationship with a company, but are there rules about where I have to put it?”

Hmm . . . that’s an interesting question, and one I’ve never heard before.

Rosie and I were happily the most underdressed on the BlogPaws red carpet. (Photo by Silver Paw Studio, used with permission)

Rosie and I were happily the most underdressed on the BlogPaws red carpet. (Photo by Silver Paw Studio, used with permission)

The purpose of the FTC rules is transparency. The law requires posters to inform others of potential bias due to a relationship with company so whomever reads the post can consider this in conjunction with the content of the post. This disclosure must be clear and conspicuous,  you can’t put it behind a link. The easiest way to make this disclosure is to include “#ad” on each applicable post.

I grabbed my phone and scrolled through my Instagram feed. Each post cuts off after the first three lines until you click on it to read more. Based on this, it appears the prudent place to put “#ad” on an Instagram post is to put it in the first three lines so anyone looking at their feed on their will know when you have a relationship with a company.

After the conference, I looked at Instagram’s Terms of Use. Although their terms are impressive and thorough, there are currently no provisions explicitly about when and where to use “#ad.”

The law is constantly trying to keep up with technology, including the internet. If you’re a social media influencer, keep up with changes in the FTC rules regarding disclosures on product reviews and promotions. and other rules that apply to your posts. If you have questions about internet law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Hat tip to Rosalyn of Golden Woofs and Sugar the Golden Retriever for this question.

The Paisley Dress and the FTC: A Cautionary Tale

Lord & Taylor by Mike Mozart from Flickr (Creative Commons License)

Lord & Taylor by Mike Mozart from Flickr (Creative Commons License)

If you want a story of what not to do when it comes to working with influencers and the Federal Trade Commission (FTC), look to Lord & Taylor.

To promote their new clothing line collection, Design Lab, Lord & Taylor sought out influencers on Instagram. They sent a piece from the collection – a paisley dress – to 50 influencers, and paid each of them $1,000-4,000 to post a picture of themselves wearing the dress on a specific day (“product bomb”). The agreement with each influencer was that they would use certain campaign designations and hashtags and that Lord & Taylor would review and approve these posts prior to the product bomb day.

The Infamous Paisley Dress

The Infamous Paisley Dress

This is where this story hurts my head:

  1. Lord & Taylor didn’t require the influencers to disclose that these posts were part of a campaign.
  2. When Lord & Taylor reviewed each post, they didn’t insist that the influencers add this information.
  3. None of the 50 influencers who were paid to post a picture of themselves wearing the paisley dress included the disclaimer or asked about it.

How can marketing professionals claim they’re competent at creating social media campaigns and not know about the basic FTC rules about native advertising?

How can an influencer who wants to use their social media platforms as a business and not know the basic rules of the game? The rules are not hard to follow:

  • Only give your truthful and accurate review of products, and
  • Always disclose when you have a relationship with a company.

If a company doesn’t want you to do this, send them a link to the FTC rules and run away as fast as you can. If they don’t understand these basic rules, they don’t know what they’re doing. I’d be worried about what else they’re doing wrong.

Companies should insist on these disclosures. When I did product reviews, my contract required me to include what I liked and didn’t like about the product and to always disclose that I got to use each product for free.

Luckily for Lord & Taylor, they appear to have gotten off with a warning. The FTC could have fined them or their influencers up to $11,000 per violation ($11K x 50 influencer posts = $550K). The next company that makes this mistake may not be so lucky.

I’m looking forward to speaking on this topic at BlogPaws to help bloggers avoid getting in hot water. If you want to talk with me about the FTC rules and social media law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.

 

Arizona’s New Revenge Porn Law

Bound by Connor Tarter from Flickr (Creative Commons License)

Bound by Connor Tarter from Flickr (Creative Commons License)

Arizona has rejoined the ranks of U.S. states that have criminal law against revenge porn. This bill was announced with much fanfare in January, but there was barely a whisper when Governor Ducey signed it into law earlier this month. And because this law was passed on an “emergency” basis, it became effective the moment it was signed.

The New Law
A.R.S. § 13-1425 makes it illegal to intentionally disclose the image of an identifiable person in a state of nudity or engaged in sexual activity, when the person has an expectation of privacy, with the intent to harm, harass, intimidate, threaten, or coerce the depicted person. Some important things to note, “image” includes photos, videos, and other digital recordings; and to “disclose” an image means to display, distribute, publish, advertise, or offer.

Offer. Just offering to share revenge porn could be a crime.
Let that sink in for a minute.

The Penalties
If you are convicted of revenge porn using electronic means (email, text message, or social media) under this new law, it’s a Class 4 felony, which is punishable by 1.5 years in prison and a fine up to $150,000.

If you’re convicted of threatening to post/share revenge without actually disclosing the image, that’s a Class 1 misdemeanor, punishable by 6 months in prison and a fine up to $2,500.

Additionally, it will be up to the judge’s discretion to declare whether your crime makes you a registered sex offender.

These are significant punishments for actions taken when you’re merely pissed off at an ex. It’s not worth the risk when the consequences are this severe.

What if I Sext Someone a Naked Picture?
One question I’m frequently asked is if someone texts or emails you a naked selfie, whether you can post that image online. If someone sends you an explicit image, they have not relinquished their expectation of privacy. If you post that image online or share it with others, it could be criminal revenge porn.

If you believe you are the victim of revenge porn or threatened revenge porn, contact law enforcement for assistance. I’m curious to see the outcomes of the first cases tried in Arizona under this new law. If you have questions about social media law or internet privacy that you want to discuss with me, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Don’t Do Stupid Sh*t – V-Day Edition

Christ-Facepalm by Doc from Flickr (Creative Commons License)

Christ-Facepalm by Doc from Flickr (Creative Commons License)

Someone recently asked what I would do if someone gave me an ad on the Super Bowl. Now, I don’t follow sportsball so I may not fully understand that demographic, but I would use my air time to share a simple PSA: “Don’t do stupid shit.”

In honor of this Hallmark holiday, I feel obligated to post an unsolicited reminder about being responsible regarding your intimate photos and videos.

Sending Explicit Content
If you have any doubt about whether your crush or significant other can be trusted with an intimate image of you, Don’t Send It! Once they have a copy of your naked selfie, you have no control over who they might show it to or where they might post it online. Sending a sexy image to someone is not a decision you should make lightly. What you might think is a brilliant idea today may become tomorrow’s regret.

Yes, if you find yourself in this situation, you could go after the person for violating your right to privacy or file a police report for revenge porn, but that doesn’t change the fact that this person posted your intimate photo or video online without your consent and there is no way to tell how many people will see it before you can get it removed.

Owning Explicit Content
If you are lucky enough to have a significant other who will send or make intimate content with you, respect that! Do the happy dance and consider yourself lucky. No matter what happens in your relationship, never ever ever post this material online or show it to a third person without your partner’s consent. And don’t even think about putting a hidden camera in your bedroom.

(If you even think about doing any of these things, it is undisputable proof that you are completely unfuckable, and no one should sleep with you again. Ever.)

In the best case scenario, if you share someone’s explicit photo or your sex tape, you will inform the world that you are a complete asshat. In the worst case scenario, you could be sued for invasion of privacy, lose your job, destroy your reputation, and be arrested for revenge porn (which if the new revenge porn law passes in Arizona, will be a Class 4 felony).

When in doubt, keep your camera out of your sex life. Better yet, don’t even bring it into the bedroom, or wherever you’re having sexy time. I get calls and emails almost every week from people who are concerned about revenge porn and their nude photos and sex tapes being posted online or shared with others without their consent. If you have a question about revenge porn or internet law, please contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

I’m also going to revive my newsletter later this year. If you want access to my exclusive content, please subscribe.