1. What you don't
know, can hurt
you!

2. Melfi & Associates, PC
"I resolve legal issues for my clients and protect
their digital assets and valuable proprietary rights
and provide results oriented and financially
responsible legal services for forward thinking
clients who operate within a Web 2.0 world.”
 Trademarks, Copyrights & Patents
 Intellectual Property Litigation
 Infringement & Enforcement Matters
 Document drafting (vendor contracts, Terms &
Usages Agreements and Privacy Policies)
 Social Media Policies

3. WEB 2.0
 Web 2.0 is a term coined in 1999 to describe
web sites that use technology beyond the
static pages of earlier web sites.
 Web 2.0 sites may allow users to interact
and collaborate with each other in a social
media dialogue as creators of user-
generated content in a virtual community, in
contrast to websites where people are
limited to the passive viewing of content.

4. Reputation Attacks/ Digital
Defamation
 A libelous expression must be published to a third
party, at minimum.
 A libelous expression must result in some harm to the
plaintiff. (evidence you have been injured)
 The libel must specify an individual or entity in such a
manner as to clearly indicate to the average reader
who the individual or entity is.
 The libelous expression should be based on provable
assertion.
 Defamation per se occurs when published libelous
expressions are actionable at face value. (accusation
of a crime, sexual misconduct, loathsome disease or
unfit to run their business)

5. What it is not . . .
 Someone writes and publishes something
negative about you that is improvable.
Opinions are not defamatory.
 Someone writes and publishes something
about you that is true. Age, race, beliefs
etc. that are true are not defamatory.
 Someone writes and publishes something
negative about you without malice –when
you are a public figure or celebrity. Libel
must be intentional and without
justification or it is not defamatory.

6. Steve Wynn v. Joe Francis

7. Steve Wynn v. Joe Francis
(con’t.)
 Francis: "Wynn threatened to kill me. He said he would hit me in
the back of the head with a shovel and bury me in a hole in the
desert.‖
 Wynn: ―Joe Francis represents a new kind of criminal type: the
digital assassin. He takes advantage of the protection afforded
by the Internet to issue intentionally destructive charges against
someone’s reputation, knowing full well that in the age of the
Internet those statements will live forever. His actions present a
new challenge to society created by technology and the
instantaneous news cycle. The inflammatory information goes
up instantly and stays forever, unchallenged and unproven, to
the misery and detriment of any citizen that is a victim. The only
remedy is a long road, an expensive road, to a trial before 12
fellow citizens. Most citizens don’t have the time or the
resources to defend themselves and find the truth in a
courtroom before a jury of their peers.

8. Right of Publicity (RoP)
 The Right of Publicity can be defined as the right to control
the commercial use of one’s identity.
 The elements typically comprising the Right of Publicity are
referred to as ―name, image and likeness.‖
 The majority view is that the Right of Publicity extends to
every individual, not just those who are famous. But as a
practical matter, Right of Publicity disputes usually involve
celebrities, since it is they who possess the names and
images that help hype advertisements and sell products.
 Right of Publicity and copyright considerations can
simultaneously be implicated in a single usage. An
advertisement featuring a celebrity’s picture may require
authorization from the photographer for the copyright use,
and from the celebrity for the Right of Publicity use.

9. RoP Examples
 Midler v. Ford Motor Co. 849 F.2d 460 (9th Cir. 1989) and Waits
v. Frito-Lay, Inc. 978 F.2d 1093 (9th Cir. 1992) - Bette Midler
and Tom Waits declined to lend their distinctive voices to
advertising jingles. Advertisers found sound-alike performers.
 White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th
Cir. 1992). Samsung utilized a robot that looked and acted like
Vanna White of ―Wheel of Fortune.‖ This usage was an
infringement because Samsung had deliberately pawned the
image and popularity of White and because White was readily
identifiable from the context of the use.
 Infringing a celebrity’s Right of Publicity can be a costly error
 the ability to control commercialization in the first place is as
much a policy objective of the Right of Publicity as is providing
revenue streams for the rightful recipient.

10. Social Media Policies
 A social media policy is a corporate code of
conduct that provides guidelines for
employees who post content on the Internet
either as part of their job or as a private
person.
 The goal of a social media policy is to set
expectations for appropriate behavior and
ensure that an employee's posts will not
expose the company to legal problems or
public embarrassment.
 Range from specific to general – depends
on the culture of the organization

11. NLRB & Social Media
Lawsuits
 According to the U.S. Chamber of Commerce, there is a
rising number of cases before the NLRB questioning an
employer’s ―overbroad‖ policies restricting use of social
media and those of an employer that unlawfully discharged
or disciplined an employee over contents of social media
posts.
 Employers must take appropriate precautionary steps.
Circulate and maintain an updated employee handbook that
not only identifies the ground rules governing the
workplace, but also addresses the new challenges
presented by mobile technologies and social media.
 The considerable threats for employers posed by an
employee’s use of social media include suits involving
defamation, First Amendment
considerations, privacy, confidentiality and trade
secrets, hiring and training concerns, online harassment —
not to mention potential loss of business or bad press.

12. Stolen Identity
 Identity theft is a form of stealing
someone's identity in which someone
pretends to be someone else by assuming
that person's identity, typically in order to
access resources or obtain credit and other
benefits in that person's name.
 Identity theft occurs when someone uses
your personally identifying information, like
your name, Social Security number, or credit
card number, without your permission, to
commit fraud or other crimes.

13. Stolen Identity Remedies
According to the FTC:
 Place a fraud alert on your credit reports,
and review your reports.
 Close the accounts that you know, or
believe, have been tampered with or opened
fraudulently.
 File a report with your local police or the
police in the community where the identity
theft took place.
 File a complaint with the Federal Trade
Commission.

14. Impersonation/ Personality
Theft
 An impersonator is someone who imitates or
copies the behavior or actions of another.
 Examples might be illegal immigrants, people hiding
from creditors or other individuals, or those who
simply want to become "anonymous" for personal
reasons.
 Another example are posers, a label given to people
who use somebody else’s photos and information
through social networking sites. Mostly, posers
create believable stories involving friends of the real
person they are imitating.
 No punishable crime, might just be classified as a
―hoax.‖

15. Cybersquatting
 Registering, trafficking in, or using a domain
name with bad faith intent to profit from the
goodwill of a trademark belonging to
someone else. The cybersquatter then offers
to sell the domain to the person or company
who owns a trademark contained within the
name at an inflated price.
 Some cybersquatters put up derogatory
remarks about the person or company the
domain is meant to represent in an effort to
encourage the subject to buy the domain
from them

16. Cybersquatting Remedies
 Domain name disputes involving alleged bad-faith
registration are typically resolved using the Uniform
Domain Name Resolution Policy (UDRP) process
developed by the Internet Corporation for Assigned
Names and Numbers (ICANN).
 Under UDRP policy, successful complainants can
have the names deleted or transferred to their
ownership.
 Under the ACPA (Anticybersquatting Consumer
Protection Act) a cybersquatter can be held liable for
actual damages or statutory damages in the amount
of a maximum of $100,000 for each name found to be
in violation, although application of this act in the form
of actual fines assessed are few in number.

17. Question
&
Answer