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Kids, Popular Culture, Social Media (and The Law)

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I spent a significant amount of time over the past several years closely monitoring the epic Barbie v. Bratz battle in California.  Much of the case, as many reporters have noted, centered on efforts by toy companies to recapture the highly prized demographic of girls between the ages of 9 and 12.   Once upon a time, these girls were major doll consumers — I vividly remember girl classmates talking about Barbies in 5th (and maybe even 6th) grade.  Of course, my youth was during the Pleistoceine era, so my memory may not be perfect.

Today things have changed, and doll play has moved younger and younger down the age chain — a fashion doll that would have once been the province of a 10 year old is now the plaything of a six year old.  The industry even has a catchy name for this phenomenon: GPOY (girls playing older, younger).   By the time girls are 12, in many cases they have largely abandoned toys altogether — a problematic development, as you might imagine, for companies that make toys.

The Official Son of Legally Social is 13, so I get a chance to observe this demographic from up close on a regular basis.   And with this perspective, it seems to me pretty obvious how — and why — this has happened over the past two decades.   But more importantly, the transformation we see in kids today holds a lesson for all of us who think about social media, and what we can expect as the future hurtles towards us at alarming speed.

But first some history: Kids are self-evidently creatures of popular culture, but this has not always been the case.  In fact, popular culture is a fairly new phenomenon itself.  Before the media age, the notion of a non-localized popular culture was simply non-existent.  This is critical to keep in mind, because the rapid changes of the past few years are completely consistent with the changes that have taken place over the past 100 years in our society at large, and the implications for how we address the legal concerns that arise in this context are dramatic.

Once upon a time, speech was inevitably a limited phenomena.  Literacy was fairly restricted, and the only form of communication in most scenarios was oral.  This led to social silos (fairly limited social groupings that had interests in common, geographically isolated).  As Gregory Clark discussed in his epic A Farewell To Alms, until the beginning of the 19th century most of the world, including most of the Western world, lived in fashion no different than our Stone Age ancestors.  This was not that long ago — in fact, the grandson of President John Tyler (born in 1790) is still very much alive today.

So the media age, as we understand it, is in human terms something still in its infancy.  We have gone from letterpress pamphleteers to Facebook in a handful of generations.  My grandparents were the first generation to experience radio, and my parents the first to experience television.  But while this is startling to adults who remember the 8 track tape, this is even more dramatic in its impact on kids, and how our culture and its laws will develop over the next several years.

Kids historically had little social autonomy.  The classic film A Christmas Story vividly describes a world where kids talked to their neighborhood friends, and the grapevine of misinformation was an endless game of operator.  Kids could receive some information, but could not broadcast it on their own.  They had no freedom to develop an aesthetic, because they had no freedom to do anything in particular, because their world was limited, and they didn’t have access to anything other than advertisements in the newspaper and the holiday window at Higbee’s department store.

It goes without saying that today’s world is saturated with popular culture.  Every square inch of your life is filled with commercial advertisements, music, hundreds of channels of content, millions of websites offering fellowship based on the narrowest or broadest of criteria, and mobile devices that can connect you at a moments notice to any piece of information imaginable.  If you are an adult, and have well developed filters to sift through this deluge of content, it’s still difficult to assimilate:  There are privacy settings on every platform.  There are restrictions on the sharing of content in some contexts, but not others.  Some things on the Internet appear to be freely copied, while others will get you fined.  The same water-cooler conversations that took place for decades may now get you sued for defamation, or fired.  All of the legal restrictions on the flow of information that have always existed but were irrelevant to individuals now apply to you.

But imagine if you are a kid.  Now everything becomes “old” in record time, as the newest “new” thing comes into your vision only days (hours?) after your last experience.  Something that may have been enjoyable for years in a prior generation is now replaced by a yearning for the next experience almost immediately.  You become jaded sooner, become a teenager sooner, become a consumer sooner.  You have the ability to communicate your thoughts and desires to the world, not just to your friends.  You have a mobile device on you at all times, and every thought that enters your mind can now be broadcast with or without the application of judgment you may or may not have had a chance to develop.  One teenaged daughter of a friend was recently offended that her parents might want to look at her tumblr — “my tumblr is for me” she said, even though it was visible to millions of people and had thousands of followers.

The law doesn’t think about any of this.  Oh, sure, the FTC just revised its approach to the Children’s Online Privacy Protection Act (COPPA), to take into account the fact that social media and geolocation exist, but that hardly matters.  The social context for social media and mobile communication is moving so much faster than the law can possibly adapt, and kids are the bleeding edge of that transformation.  They are not only playing older at younger ages, they don’t even realize that they are playing anymore, using adult tools.

So what does this all mean?  It means that your social media policy is probably out of date, even if you just put it together last year, because having a social media policy (and a privacy policy, and terms of use) is no longer a static requirement.  You need to be aware of what is going on all the time, and think about whether your approach to the legal risks is correct, sufficient, or even relevant.  Having policies is now a process that continues on, forever, mutating your approach as the technology and the social contract are altered in real time.  The intellectual property that you never thought about may be the only form of recognition you have in this new world of branded media, and you may want to consider how and whether you protect yourself.  In other words, you need to audit yourself, and your approach, to electronic communication, all the time, as a reflex.

So be systematic, and think about these issues now before you have a problem.  You can’t be reactive in a world that moves too fast for adults.

I heard you gave up your blog for Twitter….I heard, that you gave up Twitter for Pinterest….I heard…

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You may have noticed that I have been spending a great deal of time on Twitter over the past several months, and far less time on this blog.  That is, as far as I can tell, the trend for many folks in the social media world.   That isn’t to say that I haven’t been writing (you can find two of my recent blog posts at the awesome LifeSciencesNow site put together by my colleagues at Drinker Biddle & Reath — those posts, on IP and the Life Sciences, and the FTC’s recent privacy guidance, are here and here) but it means that the immediate interactivity of Twitter has become increasingly important, and attractive

Recently, I live-tweeted a DBR webinar on healthcare and social media (you can find the discussion on Twitter at #dbrhealth) and a number of sessions at the International Trademark Association annual meeting in Washington DC (you can find those discussions at #INTADC).  So does this mean that the long-form blog is a thing of the past?  Of course not.  Many subjects simply cannot be discussed in 140 characters or less, and extended analysis will always be needed.   But, the growth of Twitter as a platform means that quick reference to important news can be made on the fly, and that that discussions can take place in a public space.

So (and you knew this was coming, right?) what are the legal implications?  If people spend more and more time in the hit-and-run atmosphere of Twitter, they are less likely to read disclaimers, they are less likely to understand (or even perceive) larger contexts, and they are far more likely to say things in the heat of passion.  Endorsement issues (still a concern of the FTC) become magnified in an environment where the only way you can communicate that you are a paid shill (I mean, spokesman) is through a hashtag (although many companies are working on technical solutions using the appearance of the tweet to indicate the source).

Again, all of this means that companies and individuals must (as always) seriously consider their social media activities — do you have a policy, what is that policy, and why do you have that particular policy.  Social media use should be an excuse to engage in systematic introspection — why and how are you engaging with others on social media, and what are the implications for you, your brand and your lawyers?

If you work in social media, you can’t simply adopt a position and expect it to have relevance a year later.  You need to constantly be reconsidering your approach, and whether the legal landscape has changed.  Only through constant vigilance can you maintain an edge in this wired world.

California: Making Social Media Policy For America

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Apparently, while I was spending several months in a courtroom and away from this blog (although not from Twitter!) the state of California officially became ambivalent about social media and the Internet Age more generally.   Of course, as is usually the case, California’s discomfort may create rules for the rest of us.

Allow me to explain.

This next paragraph represents a completely simplistic and borderline inaccurate description of our government, but is important to understand why California has such an out-sized impact in our country: In the United States, we like to think of ourselves as having a federalist system: the individual states make most of the rules unless there’s a law or regulatory scheme at the Federal level.  But implicit in all of this is that the laws of one state don’t have much of an impact on the laws of another state — that’s why, for example, states can’t collect the sales tax spent on companies with no presence in their borders, permitting Amazon and Zappos to thrive and local merchants to seethe with anger.

But some states are more important than others.  It doesn’t behoove companies to have 50 different approaches to their customers, so they often craft their policies to fit the states with the most customers, or the most significant risks.  Thus, a single state can often impact how the rest of us interact with our consumer experience.

California is often that state.  And now, in two separate bills, California’s legislature is trying to get out in front of the national debate on Internet privacy by creating rules that will, in all likelihood (and for better or worse) affect us all.

The first bill, SB242, would force social networking sites to let users set their privacy settings when they register, rather than after they’ve already joined (and often never will).  The bill would also force those same sites to default to certain privacy settings to keep more information private.   Of course, the social media sites are opposed, saying that all of this limits consumer choice, but the legislators who introduced the bill are not impressed, and a $10,000 fine per violation could easily add up to real money for even the largest sites.

The other bill, SB761, would create the “do not track” rules that privacy advocates have hoped for on the Federal level for some time.  The bill, which is far reaching in its scope, would effectively prevent websites from tracking their users.

At all.

In other words, you can effectively opt out of any of the benefits that companies get from interacting with you, even as you interact with them.  This goes quite a bit further than, say, Jay Rockefeller’s proposal in the U.S. Senate introduced this week, a bill that does include exceptions that industry believes to be necessary for modern e-commerce.

Now will these California proposals become law? Probably not in their current forms, but in this atmosphere of paranoia about Internet privacy it is not at all a bad bet that something will pass.  And if it does, social media sites (and, in fact, almost everyone who does business on the ‘net) will have to decide how far they can go in carving out California customers for special treatment, and whether they will simply have to give America the rules that California has chosen.

Social Media Policies: What Should They Say?

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I have repeatedly warned everyone to consider the value of having a social media policy.   You need to think about what your employees and colleagues are saying in your name.  You have to consider what type of social media engagement they(and you!) are permitted to engage in on the job.  You need to think about your brand, about content.  

Whew — you’re thinking — that’s a lot.  And it is.  But that shouldn’t stop you from doing it, and not because some law or regulation requires it.  Rather, you need to think about how the world engages with you through social media, and how you intend to engage with the world.  It’s a fairly broad proposition, and it has frozen the collective consciousness of folks around the world who have refrained, en masse, from actually creating social media policies (as opposed to talking about them, of course!)

So — taking a page from some of the big players that have taken the big step and crafted a social media policy — let’s think about (a non-exhaustive list!) of some of the things that you should consider when creating a social media policy.

  1. EMPLOYEE USE: YES OR NO? Do you want your employees and colleagues using social media at work?  This is, obviously, quite controversial.  There are some who believe that the only proper approach to social media in the workplace is to ban it.  Others think that companies are shooting themselves in the foot bycutting off their personnel from valuable communication tools.  In truth, the answer is likely to vary from company to company, and perhaps even within companies.  Rather than assume a  “one size fits all” solution, you need to work with counsel to determine what, if any, restrictions are appropriate.  Are you in the securities industry? FINRA may have some guidance for you, and the optimal policy will differ from, say, that of Zynga.
  2. WHAT ARE YOUR EMPLOYEES AND COLLEGUES ALLOWED TO SAY? An obvious follow-up to the question of employee use is what, exactly, they are allowed to say, and whether the company should take a position on what they do on their spare time in their own name.
  3. WHAT SHOULD THE COMPANY “DO” WITH THINGS IT LEARNS THROUGH SOCIAL MEDIA?  This is a bigger problem than it may initially appear — so much so that I will also discuss this at a later date in greater detail.  But think about it: You and your colleagues are going to learn all sorts of things from social media: you may learn about product defects.  You may learn about dangerous drug interactions.  You may learn that one of your colleagues is a racist.  You may learn that one of your colleagues is engaging in price fixing.  You may learn that one of your subordinates is pregnant.  You may discover that one of your products needs to be recalled.  The list is endless — and can create almost endless forms of liability.  Again, there is no universal solution to a complex problem — but the problem calls for some serious soul searching in order to determine how far this should actually be pushed.
  4. WHAT ARE THE RULES FOR USING CONTENT ON YOUR SITE? If your social media presence is worth even a fraction of the time it will take to do it right, there will be content.  Hopefuly, valuable content.  Who owns it?  Do you have the rights to it?  What type of process do you have in place? Do you need?
  5. IS THERE REGULATED ACTIVITY ON MY SITE? Are there sweepstakes or contests as part of my social media strategy? Coupons? Rebates? Financing offers? Am I marketing to minors? Am I marketing to folks in other countries?  Just because you’re on the Internet doesn’t mean that the law stops applying to your activities — and in some cases that regulation becomes more complicated than it would have been if you simply had a store.

Of course, this is just a taste, but should inspire you to consider whether your failure to have a social media policy is also a lost opportunity for valuable self-reflection.  A social media policy is not merely something to have so that some random regulator will be happy.  Instead, it is a critical tool for understanding how you can and should interact with a powerful new medium of expression.

About that privacy policy of yours that no one ever reads…

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It goes without saying that you should have a privacy policy if you are accepting personally identifiable information through your web presence or social media initiative.  The Federal Trade Commission, by the way, agrees — and trust me, you don’t want the FTC taking an interest in you or your business.

But ironically, all of that time, money and brainpower you spent on crafting a best-of-breed privacy policy may result in a document read by…no one.  Go ahead — check your analytics — see how often someone takes a look at your privacy policy, or even your terms and conditions.  Not a big source of hits, is it?  That one person who looked at your privacy policy last week?  That was me. 

And even when consumers have independent access to information about privacy, they don’t seem to be paying attention.  According to one recent study, even on Facebook (the subject of endless media focus on privacy) 25% of users don’t use privacy controls.  So if users don’t care, why should you?  Believe it or not, I get this question all the time: “Can’t I just copy a privacy policy from someone and then just paste it into a link?”

Yet even if no one (and I mean literally no one) looks at your privacy policy, if you accept personally identifiable information you need one.   A good one.  One customized for you and you alone.  Beyond the regulators-will-get-exceptionally-angry explanation (and you should not underestimate the power of an irritated regulator), there is another, self-interested reason for this — and it is both aspirational and practical. 

If you do not have a policy, your organization will have no sense of its limits.  Putting one together forces you 9and your team) to decide what it wants to be doing, and why.  It forces you to weigh the benefits against the risks.  In other words, it forces you to have a strategy

That normative function is great — but having a privacy policy also forces you to do an empirical analysis of what you’re doing right now.  A good privacy policy describes your activity with clear-eyed accuracy.  The process of drafting a privacy policy forces you to engage in a review of your marketing practices that allows you to get your arms around what is actually happening in your organization.  I can assure you that even sophisticated folks are often surprised by what they find.

So do people read your privacy policy?  Probably not.  Should you have one? In the immortal words of my eleven year-old son: duh!

On the internet, no one knows you’re a dog…

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…or 10 years old.  Given that commercial interaction with both minors and children under the age of 13 is both regulated and difficult to control, that simple fact should give all businesses pause for thought.   “But Legally Social Guy,” you say, a tear running across your downy cheek.  “I sell heavy machinery.  Or consulting services.  Or cars.  I don’t have to worry about such things!”  Oh yes you do! 

I have been fascinated to watch the Internet activities of my son and his friends, curious to see how parents view use of the Internet and whether there are any real controls on their online behavior.  As one might imagine, the situation is somewhat mixed: some parents are quite watchful, and others are shockingly laissez faire.  But regardless of parental involvement, you can be sure that children are looking at your web site.  Why?  It’s because of what I call “search habits.”

The search habits of kids today are quite different than what adults experienced all those years ago.  Because information is presumed to be at your fingertips at all times, questions are meant to be answered, not left for another day.  Today, every time a child thinks a strange thought, or overhears a phrase that he or she does not perfectly understand, the first idea that crosses their mind is “I should go look that up on the Internet!”  On their phone.  Right now. 

Did your child just see a cool car?  She wants to look at every site that talks about that model.  Did your child see a bulldozer or a crane?  That will be his next search term.  Was there a billboard on the highway?  A commercial on television?  A pharmaceutical ad?  Kids look these things up — the idea that your site is “not attractive to children” has been, as they used to say in college theory classes, problemitized

What does that mean?  It means that instead of just considering whether you are intending, explicitly, to sell your wares or services to minors, you need to consider (a) whether there are scenarios that might attract children or minors to your site, and (b) what types of activity might actually take place there.  The details will, of course, vary significantly depending on your site and the manner in which you use it for your own marketing efforts, but do not assume that your site will never be viewed or accessed or used by folks without the ability to contract with you, and without the consent of parents.  Instead, consider the real world, and whether it has any impact on your obligations under the law.

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