Category: Legal Issues

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EEOC AntiDiscrimination Guidelines

eeoc antidiscriminationAntidiscrimination:

Some states passed antidiscrimination legislation protecting LGBT employees and customers. Others decided to go the other way making compliance very confusing for the average small and medium size business, so what are small business owner or entrepreneur responsibilities wen it comes to preventing discrimination.

Lucky for you, the U.S. Equal Employment Opportunity Commission (EEOC) has released a free, one page guide to help startups comply with federal anti-discrimination laws.

Here are some of the highlights:

Download the free guide (PDF)

 

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Publishing Unapproved Campaigns Could Get You Fired

Publishing Unapproved Campaigns Could Get You FiredYou may have created the campaign, it may not have been approved by the client but he still owns it and posting it to showcase your work without the client’s approval could put your agency in a tough spot and could get you fired

Call it friendly fire. An agency art director posts an unsanctioned version of a TV ad for a client on his personal website to enhance his portfolio. It was the cut he worked on and fought for—even if that particular version didn’t make the cut.

The problem is, he doesn’t own the work, and neither does his agency. The clip belongs to the client, making the art director guilty of copyright infringement.

It’s a scenario that’s become all too familiar at agencies. Copyrighted content routinely finds its way online, as creatives aim to burnish their own brands as much as the brands for which they work. But too often, career aspirations clash with a marketer’s need to protect its intellectual property. Clients pay agencies hefty fees and, naturally, expect loyalty rather than an art director going rogue.

Creative chiefs attempt to prevent such digital dustups, though clearly they can’t police everyone all the time. So, they have taken to schooling employees on the importance of protecting the client’s property—stressing that their very job security is at stake.

Posting work without permission can land not just employees but also their employers and even the client in hot water. Ford was forced to apologize in 2013 after a creative team at JWT India posted spec posters that never ran, including one that featured an illustration of the Kardashian sisters tied up and gagged in the trunk of a Ford Figo. The copy read: “Leave your worries behind with Figo’s extra-large boot.” The piece ended up on the blog Ads of the World and sparked a public backlash.

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HIPAA Often Misinterpreted

HIPAA mythsIntended to keep personal health information private, the law does not prohibit health care providers from sharing information with family, friends or caregivers unless the patient specifically objects. Even if he or she is not present or is incapacitated, providers may use “professional judgment” to disclose pertinent information to a relative or friend if it’s “in the best interests of the individual.”

Hipaa applies only to health care providers, health insurers, clearinghouses that manage and store health data, and their business associates. Yet when I last wrote about this topic, a California reader commented that she’d heard a minister explain that the names of ailing parishioners could no longer appear in the church bulletin because of Hipaa.

Wrong. Neither a church nor a distraught spouse is a “covered entity” under the law.

Last month, Representative Doris Matsui, Democrat of California and co-chairwoman of the Democratic Caucus Seniors Task Force, who has heard similar complaints from constituents, introduced legislation to clarify who can divulge what and under what circumstances. The proposed bill would require the Department of Health and Human Services, which last year issued new Hipaa “guidance,” to make that statement part of its regulations and to create model training programs for providers and administrators, patients and families.

“A lot of times it’s just misunderstanding what is and isn’t allowed under Hipaa,” Representative Matsui said in an interview.

So, what is and isn’t?

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FTC Social Media Endorsements Guidelines

FTC endorsements guidelinesEndorsements and reviews are big in social media, they can be effective decision making tools for consumers if they are truthful.  the FTC published endorsement guidelines to help brands and businesses stay out of trouble

Suppose you meet someone who tells you about a great new product. She tells you it performs wonderfully and offers fantastic new features that nobody else has. Would that recommendation factor into your decision to buy the product? Probably.

Now suppose the person works for the company that sells the product – or has been paid by the company to tout the product. Would you want to know that when you’re evaluating the endorser’s glowing recommendation? You bet. That common-sense premise is at the heart of the Federal Trade Commission’s (FTC) Endorsement Guides.

The Guides, at their core, reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading. An endorsement must reflect the honest opinion of the endorser and can’t be used to make a claim that the product’s marketer couldn’t legally make. Continue reading “FTC Social Media Endorsements Guidelines”

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Facebook Cannot Challenge Search Warrants

Facebook Cannot Challenge Search WarrantsA New York state appeals court ruled on Tuesday that Facebook had no legal standing to challenge search warrants on behalf of its customers, a decision that dealt a blow to civil libertarians and social media companies seeking to expand Internet privacy.

Upholding a lower court decision, the five-judge panel in Manhattan said that under state and federal law only a defendant can challenge a search warrant, and it must be done during a hearing before trial. At that point, defendants can move to have evidence thrown out as the fruit of an illegal search.

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Are Attorneys Allowed to Advise Clients to Clean Up Social Media Profiles

Are Attorneys Allowed to Advise Clients to Clean Up Social Media ProfilesAre Attorneys Allowed to Advise Clients to Clean Up Social Media Profiles?  Social media has become a major source of discovery in litigation cases, we freely expose our life through visual platforms like Facebook, Instagram, Pinterest, Twitter without thinking about potential consequences until… we are part of a lawsuit.

The question then becomes, can we or should we clean up out profiles?  Personally, and this is not legal advice, I advise in my workshops to avoid posting anything they would not want their mother, a potential employer or university to see.

Self censorship is probably the first thing to think about when posting on social media.

Now, that’s a preventive approach, most, unfortunately do not think about it and when part of a lawsuit go into curative mode trying to clean up their postings of potentially damaging postings.

I cannot tell you if it is legal or not, I am not an attorney, but I will assume that removing postings material to a law suit is probably not legal.

Keep in mind that even though you are removing them, they don’t disappear, they are still on servers somewhere, owned by the social media platform or on other users’ walls if they have commented or liked the posting, especially if you tried to clean your postings prior to the legal proceedings and can be subpoenaed

More importantly, are Attorneys Allowed to Advise Clients to Clean Up Social Media Profiles.  Their position was murky too, they are probably seeing a lot of postings on clients profiles that led them to roll their eyes or pull their hair. Continue reading “Are Attorneys Allowed to Advise Clients to Clean Up Social Media Profiles”

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Social Media Guidance For Physicians

Social Media Guidance For PhysiciansLack of social media guidance for physicians

Professionals in healthcare have been slow to embrace social media and one of the reasons is the lack of social media guidance for physicians.  Physicians face a number of issues related to compliance (HIPAA and in some cases FDA), maintaining trust in the patient/physician relationship and the integrity of the profession

Professional associations steps in

In some cases, professional associations, concerned with the potential negative impact of social media  on the profession at large, have tried to fill the gap and issued guidance.

One of these associations, the American College of Physicians offers physicians a set of social media guidance to explain the pros and cons of social media as well as issue recommendations and safeguards for the proper use of social media

The goal of the recommendations being to preserve the trust in the patient/physician relationship and the integrity of the profession.

Recommendations and guidelines Continue reading “Social Media Guidance For Physicians”

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What Worries Compliance Officers?

what worries complaince officersWhen it comes to regulated markets, compliance is a major issue, especially when it comes to social media, it worries compliance officers and has held back the use of social media in regulated markets.

So, what keeps compliance officers up at night and what do they do about it.

In short, anything posted on social media is amplified and can have an impact on the brand and the reputation and once the cat is out of the box, getting it back in the box is rather difficult.

As Warren Buffet said:“It takes 20 years to build a reputation and five minutes to ruin it.”

Of course, there are ways to mitigate risk. For one thing, a social media policy explaining who can post on social media sites, how they post and what they can or cannot say, what requires compliance approval before posting.  Yous social media policy should also define the steps to follow in case of crisis

The other challenge is what employees post about the company on their personal social media accounts.  Their post can be perceived as representing the views of the companies and can have an impact on the company reputation and/or have repercussions from the regulatory authorities

What makes it even more challenging is that be it in healthcare or financial services there are no set social media rules.  The regulatory authorities (FDA, FINRA, SEC, OCC and others) have not created a framework to regulate social media, they have only issued guidance on how to apply traditional communication with the public regulations to the electronic era and social media. The guidance seems to be a lot clearer though in the financial markets; in the medical market, the FDA is still going back and forth and the guidance can be confusing at best.

In addition, social media platforms are diverse and so are the posting modes and the number of character allowed creating challenges especially when it comes to disclosures.

Read more about what keeps compliance officers awake in financial services.

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FDA Social Media Guidance Controversy

FDAUnder the new FDA social media guidance, manufacturers would be responsible for monitoring their social media platforms for comments considered inaccurate, misleading or related to non approved or off label use.

They would also be liable when third party websites they have collaborated with publishes or do not filter articles, posts, ads or comments considered inaccurate, misleading or related to non approved or off label use.

All three major industry trade associations – the Pharmaceutical Research and Manufacturers of America (PhRMA), the Biotechnology Industry Organization (BIO) and the Advanced Medical Technology Association (AdvaMed) warn FDA of significant flaws in the agency’s proposed regulations on the use of social media.

Their contention being that information and comments published online by third party comes under the first amendment and they should not have to monitor, correct or remove them even if they are misleading

The first amendment argument has been widely used to justify misleading information in non regulated industries but in the healthcare industry, misleading information, even by third party can have wide ranging consequences on the health of patients, raise false hope and create undue pressure by ill patients on doctors. Continue reading “FDA Social Media Guidance Controversy”

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FTC latest online ad rules

Advertisers should think twice about placing promotional messages on mobile and social media platforms like Twitter if those ads require disclosures or disclaimers to avoid being deceptive or unfair, the U.S. Federal Trade Commission said on Tuesday.

The updated guidelines for online advertising represent the commission’s attempt to catch up to more than a decade of fast-evolving new technology, from the advent of the mobile revolution to an explosion in social media like Facebook and Twitter.

This year, as in the last report issued in 2000, the FTC holds online advertisers to the same standards of honesty and full disclosure as newspapers and television.

But the limited space available on mobile platforms maintained by Twitter, Facebook and others means that it is difficult to place appropriate disclosures close enough to the ad, or prominently enough, to ensure users see it.

“Advertisers should make sure their disclosures are clear and conspicuous on all devices and platforms that consumers may use to view their ads,” the FTC’s Lesley Fair said in a blog post accompanying the 53-page report.

“That means that if an ad would be deceptive or unfair (or would otherwise violate an FTC rule) without a disclosure — but the disclosure can’t be made clearly and conspicuously on a particular device or platform — then that ad shouldn’t run on that device or platform,” Fair wrote.

And the FTC discouraged the use of pop-ups for disclosures since they are so often blocked.

“Most webpages viewable on desktop devices may also be viewable on smartphones,” the FTC said in the report. “Advertisers should design the website so that any necessary disclosures are clear and conspicuous, regardless of the device on which they are displayed.”

Twitter already requires celebrities and others who endorse products to disclose that they are being paid. Facebook had no immediate comment.

“Many of the themes about social media were already surfaced (by the FTC) a few years ago,” said Eric Goldman, Professor of Law and Director of the High Tech Law Institute at Santa Clara University School of Law.

He said the FTC’s guidelines placed the burden more on advertisers and users who take payments, than on platform companies such as Twitter or Facebook. “I don’t see anything that specifically tells Twitter, Facebook or other platforms how they have to design their platform.”

“The guidelines don’t have the force of law. but the FTC is trying to let industry know what it expects industry to do, and when the industry doesn’t do what the FTC wants, the FTC tends to get cranky.”

Original article

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