Information Intersection > Troutman Sanders LLP

Category — The Internet & Social Media

FTC Takes on Video Game “Influencers”



When the FTC revised its Endorsement Guides in 2009, it signaled that it would focus more of its efforts on deceptive advertising conveyed through social media and evolving methods of online advertising. The FTC warned advertisers that they risk enforcement action when material connections between an endorser and an advertiser are not disclosed, regardless of where the endorsement appears.

Since then, the FTC has kept that promise, and last week announced that it settled a case against Machinima involving its deployment of “influencers” who were paid to “build an early buzz” surrounding the launch of Microsoft’s Xbox One console in late 2013.

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September 9, 2015   No Comments

OMG! FDA Cracks Down on Kim Kardashian Social Media Drug Endorsement

Forbes / Kim Kardashian / Instagram

Forbes / Kim Kardashian / Instagram


Tens of millions of people around the world follow Kim Kardashian’s every move on social media. So apparently does the FDA’s Office of Prescription Drug Promotion. Last week, the FDA issued a Warning Letter to Canadian drug manufacturer Duchesnay concerning Kardashian’s social media posts promoting the morning sickness drug Diclegis. The FDA warned that the posts unlawfully misbranded Diclegis under the Federal Food, Drug, and Cosmetic Act. [Read more →]

August 13, 2015   No Comments

Are the Reviews In? Using Online Review Evidence for Advertising Claim Support

one-935157-sIt is a fact of modern commerce that consumers consider online reviews when deciding how to spend their dollars on everything from music, to local restaurants, to electronics.  But what happens when a business wants to use those reviews to formulate advertising claims? [Read more →]

August 25, 2014   No Comments

Labor Unions Want Your Email System Too!

If you have a union in your workplace, or if unions have tried to organize workers in your workplace, you know that unions need ways to communicate with your employees.  Before the current digital age, unions relied primarily on communicating through informational picketing and leafleting, posters and mailings, and individual and group meeting to encourage unionization or to communicate with members and represented employees.  Today, with the modern workplace and internet-connected workers, communications can be conducted far more quickly, efficiently, cheaply and often more effectively through electronic means, such as email.  But historically, unions have not been permitted access to company email systems.  The current rule is that “employees have no statutory right to use the[ir] Employer’s e-mail system” for non-work-related purposes. If unions and the current Presidential administration get their way, that all might change.




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July 22, 2014   No Comments

Update: A Potential Roadblock for Cloud-Based Media Avoided

Twice previously this year, we posted about the potential consequences to cloud-based media from the legal dispute between streaming video service Aereo and the television broadcast industry. Last week, the Supreme Court, in a 6-3 opinion, resolved much of the uncertainty detailed in those earlier posts. While the Court ruled against Aereo – holding that its transmission of the broadcasters’ content amounted to a public performance and thus violated the networks’ copyright – the majority’s decision took pains to limit its decision to the facts at issue. Justice Breyer, delivering the opinion of the Court, noted that “we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content.”

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June 30, 2014   No Comments

The Risky Business of Background Checks, Online and Otherwise

Over the past few years, both the Equal Employment Opportunity Commission and the Federal Trade Commission have been closely scrutinizing the time-honored practice of employee background checks.  We’ve posted about background checks before – particularly the risky business of relying on online information brokers instead of, or in addition to, a bona fide credit reporting agency.  But the EEOC and FTC recently took the very unusual step of jointly issuing two guides on employment background checks, so we thought it might be helpful to give our readers a refresher.

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May 1, 2014   No Comments

Are You Ready for a World in Which More People Own a Mobile Device than a Toothbrush? You Better Be – It’s Already Here

In January 2014, we published a post on Why Social Media Matters.  If you didn’t read that post, you should. Regardless, at the end of that article, we included a link to a YouTube video produced by a guy named Erik Qualman.  He leads an increasingly influential organization, which started as a blog, called “Socialnomics.”  Qualman founded Socialnomics to provide “social & mobile statistics, studies & surprises.”  His passion and analysis regarding social media has led to a top-selling book and high-paying gigs as a keynote speaker.  But Qualman’s thoughts on social media have been most widely distributed through social media itself — the popular YouTube video linked at the end of our post.  Its various versions have been viewed millions and millions of times.  It’s full of mind-boggling statistics.  It’s entertaining.  But, most of all, it’s thoroughly thought provoking.

This week, Qualman published the latest version –  #Socialnomics 2014.  If this video doesn’t give you and your business something to think about, we don’t know what will.

And, yes, the claim that More People Own a Mobile Device Than a Toothbrush is apparently true.  So, the question really isn’t whether you are ready for such a world, because it’s already here.  The question is — if you’re not ready, when are you going to start?

April 18, 2014   No Comments

Discovering Cloud Data in Litigation


Your litigation in 2014 will involve requests for production of electronically stored information (“ESI”), and there is a good chance that some of that information is stored somewhere in “the cloud.”  ESI stored in the cloud has unique challenges and opportunities.  Determining what relevant, discoverable ESI resides in the cloud; assessing whether it is, or should be, within the scope of your discovery plan; and executing a process for preserving, collecting, and producing it all require an understanding of the legal and practical issues impacting cloud storage.  Here are a few key considerations to help you navigate the process.

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April 17, 2014   No Comments

Obtaining Verifiable Parental Consent Under COPPA

In January, we posted about the FTC’s announcement that it denied the first application seeking approval of a new verifiable parental consent method under the agency’s revised COPPA rules.  Since this initial denial, the FTC has addressed two other applications seeking approval of verifiable parental consent mechanisms under COPPA that we’d like to bring to your attention.



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April 4, 2014   No Comments

California’s Do-Not-Track Law: Are you in Compliance?


It has now been a few months since AB 370, California’s new “Do-Not-Track” law, went into effect on January 1, 2014.  So, now seems like a good time to ask: are you in compliance with AB 370’s mandates?  AB 370 requires that operators of websites and other online services and mobile applications, to the extent they collect personally identifiable information through the Internet, must either: (1) disclose how they respond to do-not- track signals from Internet browsers; or (2) provide a clear and conspicuous hyperlink to an online location containing a description of a consumer choice privacy program the operator follows and explain the effects of that program.  The law also requires these operators to disclose the type and nature of any third-party tracking occurring on their sites, services, or applications.  Technically, AB 370 is limited to online services directed to California, but if your online service is NOT directed at more than 12% of the country’s population, you may need to revisit your online marketing strategy.  Regardless, it’s the first do-not-track law in the country and, as such, merits attention. [Read more →]

April 1, 2014   No Comments