FCC Chairman Pai announced today that the FCC will move forward with a rulemaking to clarify the meaning of Section 230 of the Communications Decency Act (CDA).  To date, Section 230 generally has been interpreted to mean that social media companies, ISPs, and other “online intermediaries” have not been subject to liability for their users’ actions.

On July 27, the Trump Administration—acting through the National Telecommunications and Information Administration—submitted a Petition for Rulemaking on Section 230, and Chairman Pai announced on August 3 that the FCC would seek public comment on the petition.  That petition asked the FCC to adopt rules to “clarify” the circumstances under which the liability shield of Section 230 applies.  Citing the FCC General Counsel’s reported position that the Commission has the legal authority to interpret Section 230, Chairman Pai today stated that a forthcoming agency rulemaking will strive to “clarify its meaning.”


Continue Reading FCC Announces Section 230 Rulemaking

On July 29, 2019, the Court of Justice of the European Union (“CJEU”) handed down its judgment in the Fashion ID case (Case C-40/17).   The CJEU found that when a website operator embeds Facebook’s “Like” button on its website, Facebook and the website operator become joint controllers. The case clarifies the relationship between website operators and social networking sites whose plug-ins are embedded into websites for user tracking and online marketing purposes.  The ruling is expected to influence the contractual terms that companies will need to have in place when embedding such social plug-ins to their websites, and may also have ramifications for adtech practices more generally.

Continue Reading CJEU rules that Facebook and website operators are joint controllers if the website embeds Facebook’s “Like” button

On January 23, 2019, the UK’s Competition and Markets Authority (“CMA”) announced that it had secured undertakings from 16 social media influencers, including well-known names such as Ellie Goulding, Rosie Huntington-Whiteley and Rita Ora, that commit each influencer to increased transparency when they promote or endorse brands or services on social media on behalf of businesses.

The CMA stressed that applicable UK consumer law requires that it be made clear when posts are sponsored (i.e., paid or incentivized).  The CMA also disclosed that it has sent warning letters to other (unidentified) influencers and celebrities, and indicated it will continue to consider the role of social media platforms in this issue.

This enforcement action, together with the CMA’s recent success in court against secondary ticketing website Viagogo, and more recent threat to take Viagogo to court again, is evidence that consumer protection enforcement remains high on the CMA’s agenda.

Below, we summarise key elements of the undertakings in more detail, and also refer to further available UK regulatory guidance on how to advertise on social media.


Continue Reading UK Consumer Protection Regulator (“CMA”) Extracts Undertakings from Social Media Influencers to Increase Transparency in Sponsored Posts

BEREC, the Body of European Regulators for Electronic Communications, recently held its 34th public debriefing in Brussels. It confirmed, among other developments, that it has made 5G a strategic European priority for the next 3 years, and has opened a public consultation on the European Net Neutrality Rules – which will run until April 25 2018.

Continue Reading Covington Internet of Things Update: BEREC Confirms European 5G Strategy Priority and Opens Public Consultation on the European Net Neutrality Rules

On Wednesday, May 7, Covington attorneys Stefanie Doebler and Saurabh Anand will be participating in a webinar that might be of interest to many of the readers of this blog.  The presentation, entitled “Advertising Drugs and Health Care Products via Social Media,” will provide attendees with an overview of a recent FDA draft guidance addressing

On March 12, FDA’s Office of Prescription Drug Promotion (“OPDP”) posted an untitled letter on its webpage alleging that Institut Biochimique SA’s (“IBSA”) Facebook page for the drug Tirosint® misbranded the drug.  The untitled letter is particularly noteworthy for its focus on one statement on a firm’s Facebook page.
Continue Reading FDA Issues Untitled Letter Focused On Promotional Claims On Facebook

On January 13, 2014, FDA issued a draft guidance document entitled “Fulfilling Regulatory Requirements for Postmarketing Submissions of Interactive Promotional Media for Prescription Human and Animal Drugs and Biologics.”  This draft guidance addresses the procedural topic of submitting Forms FDA 2253 and 2301 when firms use social media such as blogs, microblogs, social

New Jersey has enacted restrictions on the ability of employers to access employees’ social media accounts, becoming the twelfth state to enact such legislation. More than 30 state legislatures have considered bills on the topic in 2013, according to the National Conference of State Legislatures.

New Restrictions in New Jersey

New Jersey’s new law, signed by Governor Chris Christie on August 29 and effective December 1, generally prohibits employers from requiring or requesting that employees or prospective employees “provide or disclose any user name or password, or in any way provide the employer access to, a personal account through an electronic communications device.” Employers also may not require individuals to waive the law’s protections or retaliate against individuals who refuse prohibited requests or file complaints with the Commissioner of Labor and Workforce Development about violations of the law. An earlier version of the law, passed by the legislature but vetoed by Gov. Christie, also would have allowed aggrieved individuals to file civil suits for injunctions, damages, and reasonable attorneys’ fees and court costs.
Continue Reading New Jersey Restricts Employer Access to Employees’ Personal Online Accounts

By Joanne Sum-Ping with research assistance by Susan Shao

After enduring weeks of attacks from Chinese state-owned media, Apple has announced a change in its warranty policy in China.  The attacks began on March 15 when China Central Television (CCTV) criticized Apple’s customer service policies during a special program observing World Consumer Rights Day.  CCTV’s report supposedly uncovered discrepancies between Apple’s warranty policy in China and its warranty policy in other countries.  According to the CCTV report, when Apple replaces faulty iPhones in China, it retains the back cover of the original phone unless the customer pays a fee to change the back cover.  This practice is supposedly to circumvent Chinese regulations that require extending the warranty by another year if the entire phone (including back cover) were replaced.   (Apple reportedly replaces the entire phone for free for customers outside of China.)
Continue Reading Apple Changes Warranty Policy in China Following State Media Attacks