Articles Posted in Social Media Policies



 A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.



Surprise: Facebook Is The Tech Company That Reports The Blowout Quarter
The social network surprised on the massive upside. Its mobile business is maturing at an even quicker clip than some aggressive estimates.


SEC Says Texas Man Operated Bitcoin Ponzi Scheme
Regulators have cracked down on an alleged Ponzi scheme involving the virtual currency bitcoin as they issue a more general warning about the dangers of such scams for investors. 


Upcoming Event: How to Comply With Social Media Regulations While Building Deeper Customer Relationships
In this webcast, IBM and Integritie will explore the opportunities that social media channels now give all organisations to build deeper relationships with their customers and how their solution SMC4 meets the strict compliance regulations set by the FCA, FINRA, SEC and NASD. Using social media is something that worries many organizations across all industries, but particularly concerns Financial Services and highlights the communication risks that could potentially occur thus leading to brand and reputation damage, or worse.



On May 28, 2013, the New York Advisory Committee on Judicial Ethics issued an opinion stating “that the mere status of being a ‘Facebook friend,’ without more, is an insufficient basis to require recusal.” (Emphasis in original). The sole act of friending an individual on Facebook does not create an appearance of impropriety, nor does it allow the questioning of a judge’s impartiality.

The unknown justice inquired if recusal is necessary in a criminal matter in which he or she is Facebook friends with the parents or guardians of certain minors allegedly affected by the defendant’s conduct. The justice indicated that the parents are mere acquaintances and that he or she can be fair and impartial.

The Committee cited previous opinions finding that there is nothing inherently inappropriate about a judge making use of a social network. Because interpersonal relationships are unique and fact-dependent, judges must ultimately determine the nature of their relationships.

Various judicial advisory committees have weighed in on judges’ use of social media, with each reaching slightly different results.

In 2011, the Oklahoma Judicial Ethics Advisory Panel issued one of the most restrictive opinions, categorically prohibiting social media “friendships” between judges and court staff, law enforcement officers, social workers, attorneys, and others who may appear in the judge’s court.

Several months ago, an opinion by the American Bar Association Standing Committee on Ethics and Professional Responsibility provided judges with a great deal of latitude in their online personas. While judges should disclose information believed to be reasonably relevant to a possible motion for disqualification, the mere fact than an online relationship exists is not automatically grounds for recusal. For example, a judge might disclose a social media connection with a party, lawyer, or witness, but state “that the judge believes the connection has not resulted in a relationshop requiring disqualification.” Judges must take care, however, not to publicly endorse candidates for public office by “liking” online content.

For more information, see:


Please join us at the Video Games and Digital Media Conference on June 10, 2013. Pillsbury attorney Cydney Tune is co-chairing this upcoming conference hosted by the American Bar Association Forum on the Entertainment & Sports Industries. She is also speaking on the topic of “Data Privacy, PII, and Online TOU/Privacy Policies.” Jim Gatto will be speaking on the topic of “Gamblification! Interaction Between Social Games and Online Gambling.”


The SEC has provided guidance to publicly reporting companies on how to use popular social networking sites, such as Facebook and Twitter, consistent with federal securities laws. For more information, please read Safe Tweeting: SEC Provides Guidance on Social Media and Regulation FD Compliance.


Most companies have employment policies, various website compliance policies and other audit and compliance practices to mitigate risk. Many companies have not yet integrated social media into those policies. Of those that have made some attempt to do so, most have ineffectively or incompletely done so. In fact, a Wall Street Journal report indicates that in a recent Protiviti survey of internal audit professionals, more than half do not assess social media risk and of the ones that do 80% admit to less than fully effective capabilities.

In a climate where regualtory actions are increasing, you can not read the daily tech/legal news without seeing another enforcement action for social media violations. Record fines are being levied. Dont be the next target. There is no time like now to mitigate your risk.

We have previously written about some of the reasons that companies need to conduct legal audits of social media risks and develop effective policies to do so. Pillsbury’s Social Media team has a cost-effective approach to doing so. 

To see our recent presentation on Social Media Audits please click here

Questions? Contact Us.


On March 15, the Securities and Exchange Commission (SEC) issued the first in a new series of guidance releases aimed at addressing emerging legal issues.  In that edition of “IM Guidance Update”, the SEC focused on clarifying filing and disclosure requirements associated with investment companies’ use of social media, identifying several types of electronic communications and materials on investment companies’ websites that are not required to be filed for review by the Financial Industry Regulatory Authority (FINRA). This release comes, according to the SEC, because many such organizations have been filing materials located on their social media sites with FINRA “out of an abundance of caution”. You can read the SEC’s press release and access the full IM Guidance Update: SEC Issues Guidance Update on Social Media Filings by Investment Companies.


Hiring a lawyer for a general counsel role – either in-house or by retaining outside counsel to perform that role – can benefit organizations in countless ways. Unlike outside attorneys who are consulted on a piecemeal basis, corporate or general counsel are very familiar with the organization’s operations, leadership, and goals. Because they are often privy to and included in discussions of key business decisions and developments, they can ground their legal advice on a thorough understanding of the organization and its history. That intimate connection to the organization’s business life, however, operates as a double-edged sword. As some court decisions illustrate, the regular inclusion of general counsel in business communications can strip communications with corporate counsel of the presumption that they are protected by attorney-client privilege.

For more information, please click here.


social-media-work.jpgAs use of social media continues to increase, so do concerns by employers regarding employee use of social media as it relates to the workplace. In response, many employers are drafting new or revised policies covering use of social media particularly as it pertains to confidentiality, privacy, intellectual property, and contact with the media and government agencies.

The Acting General Counsel of the National Labor Relations Board (“NLRB”), Lafe Solomon, has released a report on employer social media policies.  In many cases, some or all provisions of employers’ policies governing the use of social media by employees have been found to be unlawful. Provisions are found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act. Consider the following examples, which may be surprising.

In one case, the NLRB addressed an employer’s rules on communication of confidential information via social media.  The employer’s social media policy provided in relevant part:

If you enjoy blogging or using online social networking sites such as Facebook and YouTube, (otherwise known as Consumer Generated Media, or CGM) please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles . . . Don’t release confidential guest, team member or company information. . . .

The NLRB concluded these rules were unlawful as they could chill the exercise of Section 7 rights (e.g., self-organization, collective bargaining, etc.) in violation of the National Labor Relations Act. More specifically, the instruction that employees not “release confidential guest, team member or company information” was interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment as well as the conditions of employment of employees other than themselves.

In another case, the NLRB focused on an employer’s social medial policy for protecting company information, which provided in relevant part:

Employees are prohibited from posting information regarding [Employer] on any social networking sites (including, but not limited to, Yahoo finance, Google finance, Facebook, Twitter, LinkedIn, MySpace, LiveJournal and YouTube), in any personal or group blog, or in any online bulletin boards, chat rooms, forum, or blogs (collectively, ‘Personal Electronic Communications’), that could be deemed material nonpublic information or any information that is considered confidential or proprietary. Such information includes, but is not limited to, company performance, contracts, customer wins or losses, customer plans, maintenance, shutdowns, work stoppages, cost increases, customer news or business related travel plans or schedules. Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers. . . .

The rule prohibiting employees from posting information regarding the employer that could be deemed “material non-public information” or “confidential or proprietary” was found unlawful by the NLRB. This was chiefly due to the terms “material non-public information” and “confidential or proprietary” being vague and/or overbroad, and the associated risk of limiting Section 7 rights.

Some other trends in the guidance provided by the NLRB include that expression of opinions by employees is largely protected, and prohibitions on activities in social media used by unions for communication or organization are particularly safeguarded.  On the other hand, the guidance appears to enable employers to protect themselves against “rants” by individual employees, and to enforce important workplace policies (like sexual harassment, workplace violence, and/or other workplace policies) in employee use of social media.

As can be seen from the examples above, employers should work with counsel to carefully craft their social media policies to both protect their own interests while not impeding employee rights under the National Labor Relations Act.


Thank you to everyone who joined us in both New York and Washington, DC for our Social Media Week events – Game On!

Special thank you to all of our panelists: Randy Leibowitz, Mike Scafidi, Tim Ettus, Lou Kerner, Peter Corbett, Jim Gatto, Sean Kane, Lauren Lynch Flick and Tina Kearns (many featured in the picture and video below). 

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In conjunction with Social Media Week, please join us in our New York office on Wednesday, February 20th from 5 – 7 pm for Game On! Social Media Contests, Sweepstakes and Promotions.

The use of social media-based contests, sweepstakes and other promotional techniques is rapidly increasing. So too is the regulatory scrutiny and enforcements of them. The social media slant to these long-used tools creates new legal issues that must be understood and addressed.

Our panel, led by Jim Gatto and Sean Kane, will discuss some of the most important issues and trends relating to social media contests, sweepstakes and promotions.

Topics will include:

•           Understanding the FTC Endorsement Guidelines as they relate to blogging and endorsement

•           Avoiding crossing the line into illegal gambling

•           Rewarding consumers for creating product reviews or recommendations

•           Protecting your unique business model

•           Leveraging endorsement-based advertising

•           And much more…

As always, along with the great business opportunities come some legal and regulatory issues of which companies need to be aware.


Please join Jim Gatto, Steven Kaplan, and Laura Lynch Flick in our Washington, DC office for a similar program on Thursday, February 21st from 3 -6 pm. Following the session on Social Media Contests, Sweepstakes and Promotions, we will have another panel on Social Media Audits: Why you need one.

The rapidly increasing use of social media is changing the way companies do business. However, companies are not adapting their legal practices and corporate policies as quickly to reflect these changes. Additionally, the law is changing quickly in some respects, but it lags behind the rapid advances in social media technology and business methods in others. Companies have been caught by surprise as the legal decisions and regulatory enforcements unfold. For these reasons, every company needs to be more proactive in this area.

Our panel will cover some of the most important components, including:

•           Developing a Written Social Media Policy

•           Intellectual Ownership and Protection

•           User Generated Content (DMCA)

•           Virtual Currency, Virtual Goods and Stored Value

•           Mobile Applications

•           Privacy and Date Use