MediaTech Law

By MIRSKY & COMPANY, PLLC

Website Policies and Terms: What You Lose if You Don’t Read Them

Posted July 15, 2015 by Roman Vayner 0

When was the last time you actually read the privacy policy or terms of use of your go-to social media website or you favorite app? If you’re a diligent internet user (like me), it might take you an average of 10 minutes to skim a privacy policy before clicking “ok” or “I agree.” But after you click “ok,” have you properly consented to all the ways in which your information may be used?

As consumers become more aware of how companies profit from the use of their personal information, the way a company discloses its data collection methods and obtains consent from its users becomes more important, both to the company and to users.  Some critics even advocate voluntarily paying social media sites like Facebook in exchange for more control over how their personal information is used. In other examples, courts have scrutinized whether websites can protect themselves against claims that they misused users’ information, simply because they presented a privacy policy or terms of service to a consumer, and the user clicked “ok.”

The concept of “clickable consent” has gained more attention because of the cross-promotional nature of many leading websites and mobile apps. 

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RTs are Not Endorsements – Social Media Policies

Posted January 18, 2012 by Andrew Mirsky 0

“RTs do not = endorsements.” We’ve all seen it on Twitter bios, usually bios belonging to members of the media.

These kinds of disclaimers, disassociating the tweets from the people who retweet them, are common. The Twitter bio belonging to Brian Stelter of the New York Times (@brianstelter) notes, “RT & links aren’t endorsements.”

A Social Media Policy Addressing RTs and Linking

But for some, those disclaimers are not enough.  Last fall, the Associated Press introduced an updated social media policy for its reporters and editors.  As recently reported in Yahoo! News, the AP memo advised reporters and editors that “Retweets, like tweets, should not be written in a way that looks like you’re expressing a personal opinion on the issues of the day. A retweet with no comment of your own can easily be seen as a sign of approval of what you’re relaying.” The guidelines note, “[W]e can judiciously retweet opinionated material if we make clear we’re simply reporting it.”

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Who Needs a Privacy Policy?

Posted March 15, 2011 by Andrew Mirsky 0

A privacy policy?  Who needs a privacy policy?  Privacy is a mess.  You’re building an online business, and you figure you have to have a privacy policy.  But why?  Is “because everyone else has one” a good enough reason?  Ever wonder what you really need to know about privacy law?  I mean … what you have to comply with as a business operating in an online environment?

Here, then, the first of several Frequently Asked Questions about privacy policies.  Or to be more precise, here now some practical answers on privacy practices:

FAQ #1: Can I simply post a privacy policy and forget about it?  Short Answer: No.  Longer Answer: No, because as between posted statements and actual compliance, actual compliance is what’s required.  

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Update: Social Media Policies Violate Federal Labor Law?

Posted February 8, 2011 by Andrew Mirsky 0

Last month I wrote about an NLRB complaint against a Connecticut ambulance company, American Medical Response (AMR), for wrongful termination of an employee who had complained on Facebook about her supervisors and the company. The NLRB had begun proceedings against AMR for violating the employee’s rights under the National Labor Relations Act, specifically rights to take “concerted activity” related to working conditions.

The New York Times reported yesterday that the company had reached a settlement with the NLRB. In particular, The Times reported that the company agreed to modify its workplace policies “to ensure that they do not improperly restrict employees from discussing wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”

It is believed that this case was the first of its kind, where the NLRB took action against an employer related to an employee’s comments and conduct on a social media site like Facebook.

According to the San Jose Business Journal, the company reached a separate private settlement with the fired employee, the terms of which were not disclosed by the NLRB, the company or the employee.

Interestingly, while the case obviously did not get to a full precedent-setting decision, a publicly-acknowledged condition to the settlement was the company’s acknowledgment that outside discussions of work conditions could not be acted upon detrimentally by the company. And without explicitly stating so, these outside discussions obviously included facebook and other social media outlets.

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Podcast #1: FTC’s recently issued privacy proposals

Posted January 12, 2011 by Andrew Mirsky 0

Podcast #1: December 30, 2010


In today’s podcast, we discuss the Federal Trade Commission’s recently issued privacy proposals. My guest is Karen Neuman, a founding partner of St. Ledger-Roty Neuman & Olson LLP, a Washington, DC law firm that focuses on regulation of information technologies and communications law, including privacy & data security, mobile communications, the Internet, media, telecommunications and related transactional matters.

At the core of the new privacy proposal is the idea that the current system of self-regulation does not provide enough consumer protection.  Basically, from the FTC’s perspective, people do not pay enough attention to the data-collecting activities of websites and not enough companies are up-front about the data they do collect from visitors to their sites.  The FTC says that while many companies detail their data collection through privacy policies, consumers bear too much of a burden in having to sort through such long, legalistic documents.

Among other proposals, the FTC’s new framework would require a “Do Not Track” option, much like the one we currently have to avoid telemarketers.  “Do Not Track” would essentially prevent companies from tracking things like your browsing history and buying habits, making it much more difficult for them to target consumers with personalized ads.  The proposal also aims to have companies incorporate more consumer protection into their business practices through simpler, more transparent options and by allowing consumers more access to the data being collected about them.  The FTC issued its proposed rules just last week, and requested public comment from both businesses and the public.

Please click play on the audio player below to hear the podcast.

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Social Media Policies Violate Federal Labor Law?

Posted December 22, 2010 by Andrew Mirsky 0

A Connecticut company suspended and then fired an employee for making disparaging comments on Facebook about the company and about her supervisor.

Not in dispute is that the employee’s actions violated the company’s social media and other personnel policies, which (among other things) prohibited depicting the company ‘in any way’ on Facebook or other social media sites or from “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.”

In dispute is whether that social media policy – and the company’s actions in enforcing the policy – violated public policy, in particular Federal labor law.  This came into fast relief when the National Labor Relations Board (NLRB) subsequently filed a complaint against the company, charging the company with violations of the employee’s rights under the National Labor Relations Act (NLRA).

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