Kerry O'Shea Gorgone

Law, marketing, and the fun stuff people do outside of work.

Meerkat, Periscope, Privacy and the Law: Is Live-Streaming Video Legal?

by Leave a Comment

meerkat-periscope-law

UPDATE: I’ve created a legal checklist for marketers using Meerkat and Periscope to live-stream for brands!

Meerkat, the media darling of SXSW 2015, and competitor app Periscope enable users to live stream video content from their mobile device. The content goes live in real-time, as you capture it, and you share a link on social media so people can watch your feed.

Live streaming video has changed the way people interact with one another and experience live events, like football games and concerts. Singer Katy Perry encouraged performers to “embrace the future,” and commented that “people used to applaud; now the more phones you see, you can just count it as the amount of applause that there would be.”

But is recording with Meerkat or Periscope legal?
As is the case with so many legal questions, the answer is “it depends,” but the legality of live-streamed video hinges on the same factors as other video and photographic content.

Are you capturing copyrighted content?
Both Meerkat and Periscope prohibit using the service to record copyrighted content. So, live streaming as you watch Furious 7 is a no-no, both under federal copyright law and under each app’s terms of use. (This is why the movie industry banned Google Glass and other wearable technology from theaters in 2014.)

Live streaming a concert performance potentially infringes in the copyrights of multiple parties, including the artist, the label, and the publisher. Many venues prohibit recording during concerts, to avoid the potential legal mess. Brands in particular should avoid live streaming at concerts: their deep pockets make them an enticing target for lawsuits.

League restrictions also apply while viewing a professional sporting event, like an NFL football game or an MLB baseball game. (GeekWire covers concerns about live streaming sports games in some depth.) Networks pay huge sums of money for the rights to broadcast games live, so anyone using apps like Meerkat or Periscope to stream games should expect teams to crack down on them.

Location, location, location
Your location factors into the legality of live streaming. If you’re in a public place, like a park, sidewalk, or bus, you have no reasonable expectation of privacy. Someone can take your picture, record or stream video of your activities and movements in public, and you wouldn’t have much legal basis to complain about it, unless they trespass. If they go beyond recording to harassing or stalking you, many states do have anti-stalking laws.

Attendees at a concert, sports game or conference fall into this “public” category. You’ve elected to go out in public, and if someone captures your picture or a video of you, it’s unlikely you can do much about it.

Two exceptions: commercial use and criminal peeping.
People cannot use the picture or video they capture of you for commercial purposes. In other words, Apple can’t just record people on Meerkat or Periscope using iPhones “in the wild,” then use that footage to promote its products.

Anyone featured in commercial or promotional content must sign a release, or the company could be liable for “appropriation,” or violating that person’s right of publicity (the right to choose if and how your likeness is used for promoting brands, products or services).

Also, perverts and peepers generally can’t use Meerkat or Periscope to look up your dress or down at your cleavage. The most commonly used term for this type of voyeurism is “upskirting,” and many states have statutes prohibiting it.

Just as photographing or recording videos of people’s “intimate areas” is illegal in most states (although apparently not in Oregon yet), using a streaming app to peep would also be against the law.

So, your privacy is relatively unprotected in public places, but the law does protect your right to privacy when you are at home or in some other place where privacy is expected (like a restroom or a doctor’s office).

Photographing or recording someone in a private place is generally illegal, so streaming video of them using an app like Meerkat or Periscope would also violate their right to privacy.

Here’s the bottom line: Streaming video with Meerkat or Periscope (or any similar service) in a public place is generally legal, but brands should obtain releases beforehand if they plan to use the content for commercial purposes.

And anyone using these apps, don’t be creepy. Even if you ultimately beat a criminal charge or defend yourself in a civil lawsuit, you’ll have spent thousands on legal fees before you’re vindicated.

Creeping can cost you!

 

Thanks to Christopher Penn for the topic suggestion, and to Matt Ridings for his feedback!

Online Giveaways: Just Because Rafflecopter Lets You Do It Doesn’t Make It Legal

by Leave a Comment

grumpy-cat-giveawayMy recent posts here and on Mark Schaefer’s {grow} blog have generated a lot of conversation among bloggers and brands about giveaways. The first question I set out to answer on my blog was “what is the difference between a contest and a giveaway, and how can I run each legally?” The next question I answered was “why is everyone else running giveaways illegally?”

Which brings me to this latest conundrum:
How can my giveaway be illegal if Rafflecopter (or Random.org or a WordPress plugin or a Facebook app) lets me do it?

Answer: Rafflecopter doesn’t protect you if you get sued. Your giveaways are your problem.

Maybe that’s harsh, but just because Rafflecopter or some other website or app developer gives you the mechanism to run a giveaway doesn’t mean that giveaway is legal where you are, or that it adheres to the terms of the site or social network you use to promote the giveaway.

Giveaway sites and tools specifically pass liability for illegal giveaways on to you—you might even have to reimburse them for their legal fees if they’re dragged into a lawsuit over your giveaway!

Here’s the key language from several commonly used giveaway websites and apps:

rafflecopter-logo-social-media-contestRafflecopter
I don’t mean to pick on these guys—they’re just the most commonly mentioned when bloggers contact me in a panic after reading one of my posts on the law governing contests and giveaways.

 

First, here’s the part where they shift liability running an illegal giveaway to you.

You acknowledge Rafflecopter is not responsible or liable for the failure of any Admin (or any third-party) to comply with the rules, terms, conditions, policies, and applicable laws, rules, or regulations governing any promotion or giveaway.

RAFFLECOPTER DOES NOT SPONSOR, ADMINISTER OR ENDORSE THE CONTENT OF ANY PROMOTION OR GIVEAWAY DISTRIBUTED THROUGH THE SITE UNLESS OTHERWISE STATED AND IS THEREFORE NOT LIABLE.

And here’s the part where they require you to reimburse them if they wind up involved in legal proceedings as a result of your illegal giveaway:

You further agree to indemnify, defend and hold harmless Rafflecopter and its parent companies, affiliates, and subsidiaries; and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors from any and all claims, losses, liability, damages and/or costs (including attorneys’ fees and costs) arising from your use of the Service.

However, this is not an anti-Rafflecopter rant. As services go, they’re easily the go-to favorite among bloggers, and for good reason.

Rafflecopter does make an effort to comply with the different social networks’ giveaway rules (they made changes to their service when Facebook updated their platform policy impacting third-party apps last year), but they don’t promise that all Rafflecopter features comply with all laws and regulations everywhere.

Use the service if you want. Even upgrade to the premium version, if you want access to more features. But don’t think that paying for a Rafflecopter account means that any of the giveaways they enable you to run pass muster from a legal standpoint. That’s on you.

Knowing the law as it applies in your jurisdiction is your responsibility. NO company is going to insure you against your own ignorance. 

If you get sued, you’re on your own.

 

RandomRandom.org
Another site bloggers frequently mention, Random.org helps you to run giveaways that award prizes to an entrant at random. (I know, who saw that coming?)

Here’s the language they include in their Acceptable Use Policy that places the blame for an illegal giveaway squarely on your shoulders:

You may not use our site…in any way that breaches any applicable local, national or international law or regulation.

In other words, you are responsible for a) knowing what the applicable local, national or international law or regulation is in your area and b) complying with it.

Here’s the bit where they shift liability for any mistakes in that regard to you:

We exclude liability for actions taken in response to breaches of this acceptable use policy. The responses described in this policy are not limited, and we may take any other action we reasonably deem appropriate.

Even if you use their interactive services to run a promotion, Random.org disclaims liability:

[W]e are under no obligation to oversee, monitor or moderate any interactive service we provide on our site, and we expressly exclude our liability for any loss or damage arising from the use of any interactive service by a user in contravention of our content standards, whether the service is moderated or not.

In other words, any problems that arise with a promotional draw or giveaway are your problems, not Random.org’s, and you’ll have to deal with them.

wordpress-logoWordPress Plugins
Some sites operating on WordPress use plugins like Golden Ticket and Give It Away Now to run on-site giveaways. Most of these plugins use the Free Software Foundation’s GNU General Public License, Version 2 (GPL2), putting a note under “License” in their plugin documentation (usually “readme.txt” in the download folder) that you are adopting the GPL2 license.

Arrow-WP-License

Here’s the pertinent language in the GPL2 license:

Because the program is licensed free of charge, there is no warranty for the program, to the extent permitted by applicable law. Except when otherwise stated in writing the copyright holders and/or other parties provide the program “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The entire risk as to the quality and performance of the program is with you. Should the program prove defective, you assume the cost of all necessary servicing, repair or correction.

This is broader language (not specific to giveaways), because it applies to all types of WordPress plugins that use this license. Still, it seems clear that any problems—whether with the functionality or copyright law or other issues—are your problems, not the developer’s.

Facebook Apps
There are too many Facebook giveaway apps to cover them all, but here’s the applicable language from two popular tools: Giveaway Tab and Woobox.

giveaway-tab-logoGiveaway Tab

Any problems that arise from the giveaway, should be taken up with the third party, not Facebook, or the Giveaway App.

Not as polished as most lawyers would like to see, but you get the point.

 

wooboxWoobox

You expressly relieve Woobox from any and all liability arising from your use of any Sponsor or third party website or service. Accordingly, we encourage you to be aware when you access some features of a website or services which are provided by, with or through a Sponsor or a third party, to read the terms and conditions and privacy policy of each third party’s website and service that you access.

“Any and all liability” means “any and all.” Your giveaway, your concern, and if Woobox gets dragged into it, you’ll have to cover their legal bills.

You further agree to hold harmless Woobox and its parent companies, affiliates, and subsidiaries; and their respective officers, directors, employees, consultants, agents, representatives, professional advisors, and contractors from any and all claims, losses, liability, damages and/or costs (including attorneys’ fees and costs) arising from your use of the Service.

“Hold harmless” means to protect them from liability, for example by covering their attorneys’ fees if they have to defend against a lawsuit brought by one of your giveaway entrants or the FTC.

Bottom line: you’re responsible for making sure your giveaway complies with all applicable laws (state and federal), as well as the requirements of the specific social network or site you’re using (e.g. Facebook).

Don’t take any of this to mean that I dislike giveaways (or contests—a safer, merit-based alternative). But as is the case with any tool, users need to learn how to use Rafflecopter, Woobox or your app of choice responsibly, and with a full understanding of the risks involved.

Laws vary depending on which state (or country) you’re in, so if you want to consult with an attorney, I recommend Sara F. Hawkins. Like me, she’s an attorney who’s well versed in social media. Unlike me, she’s still practicing! (I develop training programs for MarketingProfs and speak at conferences and events about the law as it impacts marketers, bloggers, and brands.)

Questions? Let’s talk on Twitter!

Influence Marketing and the FTC’s 4Ps of Disclosure

by Leave a Comment

Influencers and brands alike should be aware of the FTC’s guidelines for making necessary disclosures in sponsored content. The guidelines have been in place since 2000, but were updated in March of 2013.

I’ll give you the short version: if bloggers receive anything of value (free samples, payment, sponsored trips, etc.), this needs to be made clear to the reader up front. Like this. (Nice job, Chris Brogan!)

 

Disclosure rules apply to your social networks, too. If you’re tweeting about how great the new Mercedes-Benz is, and you received a week-long test drive of the car for free, you need to disclose that in the tweet. Like Steve Garfield does:

Yes, 140 characters doesn’t give you much space. No, the FTC doesn’t care. Disclose. If necessary, use a short URL that clearly indicates important disclosure information is available, and when using hashtags, use #ad or #sponsored. Readers don’t all understand what #spon means.

That said, adding a hashtag doesn’t necessarily make or break your disclosure. After all, when was the last time you searched Twitter for #SPON or #AD? Save the space and just say “Ad” or “Sponsored.” Most people will understand that you’ve received something in exchange for the post, or at least that you received something for free that might make you more favorably disposed towards the product or company mentioned.

Make sure that disclosures display properly on mobile, as well.

Responsive design is an amazing thing, but it’s your responsibility to ensure that site visitors see the any required disclosures without having to scroll.

Realistically, you can’t know how your site will display on every browser and device, so you’ll want to present the disclosure and acknowledgement as an obstacle for site visitors: don’t let them proceed to make a purchase or visit the sponsor’s site until they acknowledge having seen the disclosure.

When disclosing, pay attention to the 4Ps:

  • Placement (Put disclosures close to the claim they qualify.)
  • Proximity (Don’t make users scroll or zoom to see disclosure)
  • Prominence (Make it stand out on the page.)
  • Presentation Order (Make it “unavoidable” that consumers see disclosure before they can proceed.)

Even 140-character tweets must comply with FTC guidelines. The FTC has made it clear that if you can’t fit your disclosure on a platform because of limited space, then you shouldn’t use that platform. Sending a series of tweets (with the disclosure in one of them) is not sufficient, because people most likely won’t read every tweet in succession.

Also be aware that it’s your responsibility to monitor your website’s analytics and confirm that site visitors are seeing your disclosures. If there’s any reason to suspect they’re not, you need to correct it by adjusting the placement, proximity, prominence, and presentation order of the disclosures until everyone sees them before proceeding. If you don’t correct the problem, you’ll run into trouble if someone files a complaint with the FTC.

Blogger outreach and influence marketing are great additions to a company’s marketing mix, but everyone (influencers and brands alike) needs to ensure that any content they create complies with consumer protection laws and truth in advertising laws.

And don’t think you’re off the hook if it’s just your employees tweeting on behalf of the brand: the FTC recently settled a lawsuit against Sony and agency Deutsch LA for encouraging Deutsch LA employees to promote the Sony PS Vita on their personal social media accounts without also telling them to disclose their connection with Sony.

Err on the side of caution and disclose. “So excited my employer, Sony, is rolling out the PS Vita!” Incidentally, phrasing disclosures in natural language also makes you more human to readers, which is always a good thing.

For more information, visit FTC.gov.

UPDATE: In June 2015, the FTC updated its “What People Are Asking” guide to clarify their answers to common questions that arose after the 2013 revision to their Dot Com Disclosures. I’ve provided my analysis of the changes here.