Category Archives: Communications/Telecommunications Law

Treatise Update – Advertising and Commercial Speech: A First Amendment Guide (Second Edition)

Advertising and Commercial Speech: A First Amendment Guide offers a practical examination of how the U.S. Supreme Court’s commercial speech doctrine impacts advertising across nearly 50 industries and professions. The book explores legal standards for defamation, false commercial speech, and disparagement along with developments around advertising for alcohol, financial institutions, professional services, medication, real estate, tobacco, and more.

Among the many topics discussed in this new release are the following:

Compelled editorial transparency: New section 12:13 discusses laws passed in Florida and Texas targeting social media platforms’ efforts to combat user-generated disinformation posted on their websites.
On-site and off-site signs and billboards: Section 13:2.1[A][7] covers the Seventh Circuit’s ruling regarding whether to apply strict scrutiny or intermediate scrutiny to an ordinance limiting digital displays and off-premises signs.
Drugs & drug paraphernalia: Section 14:14 explores a case from the Washington Court of Appeals rejecting a challenge to the state’s advertising restrictions on marketing cannabis products.
Regulation of advertising content: Revisions to chapter 14 include:

The ruling of a Florida judge regarding whether part of the state’s Stop W.O.K.E. Act, which forbids companies from undertaking mandatory employee DEI training programs designed to limit or avoid discrimination practices, is unconstitutional (see section 14:16 on fair employment); and
The Eastern District of Arkansas’ final ruling in the Tofurky case involving marketing of plant-based foods (see section 14:20 on food).

In addition, this release includes an updated Table of Cases, Defendant-Plaintiff Table, and Index.

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Treatise Update – Advertising and Commercial Speech: A First Amendment Guide (Second Edition)

Written by First Amendment experts, Advertising and Commercial Speech: A First Amendment Guide focuses on how the Supreme Court’s commercial speech doctrine affects advertising in nearly fifty industries and professions including for the services of accountants, doctors and dentists, lawyers, pharmacists, educators, and more.

Among the many topics discussed in this new release are the following:

Lanham Act and misappropriation claims: New material in section 9:2 discusses two major post-Ariix decisions from federal courts in San Francisco involving failed lawsuits seeking to leverage the Lanham Act as a basis for challenging Facebook’s efforts to police its website against the spread of online misinformation.
Compelled commercial speech—housing: A revised section 12:11 examines a case from the Eastern District of New York involving a challenge by “five small landlords” to an emergency state eviction moratorium law enacted in the middle of the COVID-19 pandemic.
Taxation of media: An update to section 13:4.1 covers a case from the Ohio Supreme Court regarding whether a billboard tax violated the First Amendment’s protections for freedom of speech and freedom of the press.
Regulation of advertising content: Cases added to chapter 14 include:

Florida proceedings challenging the state’s law that prohibited cruise lines from requiring passengers to provide COVID-19 vaccination or post-infection recovery documentation prior to boarding (see section 14:2); and
Fair housing cases dealing with a Seattle ordinance that precluded landlords from taking adverse action against tenants and prospective tenants based on criminal history and a case in New York involving a law that prohibited landlords from “threatening” residential or commercial tenants based on the tenant’s COVID-19 status (see section 14:17).

In addition, this release includes an updated Table of Cases, Defendant-Plaintiff Table, and Index.

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New Edition! Social Media and the Law

PLI Press is proud to announce the publication of the new edition of Social Media and the Law.

This book can help to minimize the risk of litigation and other legal problems arising from the use of social media platforms by analyzing it in various legal contexts, including privacy, civil litigation, employment, criminal activity and prosecution, intellectual property, defamation, advertising, and regulated industries. Relevant legislation, court opinions, usage trends, and industry responses are discussed.

Notable developments covered in the new edition are:

Use of technology by Human Resources departments (Chapter 6): Recent statistics on the growing use of AI, big data, and data analytics in employment recruitment are discussed.
Deceptive practices (Chapter 8): A new section discusses two self-regulatory programs operated by the Better Business Bureau that are of relevance to social media advertising: the National Advertising Division and the Children’s Advertising Review Unit, the latter of which issued revised guidelines that became effective on January 1, 2022.
Required disclosures in advertising (Chapter 8): In October 2021, the FTC began sending a series of Notices of Penalty Offenses to large numbers of businesses following an April 2021 Supreme Court decision that stripped the FTC of its authority to obtain monetary redress without first engaging in administrative proceedings.
Privacy of victims of crime (Chapter 9): A new section discusses the privacy and ethical issues arising from the provision of social media information about victims of crime.

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Treatise Update: Social Media and the Law

Social Media and the Law (2020 Edition) examines the use of social media in a variety of legal contexts, including privacy, civil litigation, employment, criminal activity and prosecution, intellectual property, defamation, advertising, and regulated industries. Relevant legislation, cases, usage trends, and industry responses are discussed.

Among the new developments covered in the 2020 Edition are:

Deepfakes — videos made using a new technology that falsely shows people saying or doing something that they did not say or do. See section 5:4.5.
Boeing standard under the NRLA: In one of the first decisions applying the Boeing standard, the NLRB found an employer’s confidentiality rule presumptively lawful under the first step in Boeing and found unlawful an employee handbook policy that workers should not post “derogatory information about the company” on social media sites and instead should use the normal channels for raising grievances and complaints. See sections 6:4.2[B][2][a] and 6:4.2[B][2][b][ii].
Guidance for financial services industry: In 2019 FINA released new guidance on disclosure innovations in advertising and other communications with the public. See section 7:3.2[A].
Medical Device Vulnerabilities: A draft guidance issued by the FDA in October 2018 recommends medical device manufacturers and healthcare delivery organizations take steps to ensure appropriate security safeguards are in place. See section 7:3.3[D].
Platform Criminality, whereby criminal activities are enabled and funded through data-rich platforms such as Facebook, Amazon and Uber. See section 9:2.11.

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Technology Transactions Update

Technology Transactions: A Practical Guide to Drafting and Negotiating Commercial Agreements is an indispensable guide to drafting, reviewing, and negotiating technology transaction agreements. Editor Mark G. Malven, with more than twenty years of experience handling thousands of tech transactions and representing customers as well as technology vendors, combines his legal expertise and that of eleven other contributors from the legal and business worlds to deliver streamlined, practical, easy-to-access guidance.

This release presents the latest developments in the field, affecting most of the chapters in the book. Among the changes are:

Chapter 10, Information Security Agreements: This new chapter covers the drafting, review, and negotiation of information security (“InfoSec”) agreements. InfoSec agreements have become more prevalent in service provider relationships as a result of the explosion of electronic data coupled with increasing legal and regulatory risk associated with privacy breaches. InfoSec agreements go beyond the basic limitations on use and disclosure of confidential information covered by NDAs, for example, by imposing specific obligations for each information type covered, imposing obligations as to how the recipient must safeguard information, and allowing for audits of the recipient’s treatment of information. A sample InfoSec agreement is included.
Chapter 21, Enforcement of Online Terms and Conditions: This new chapter provides an introduction to enforceability considerations when drafting online terms and conditions, including browsewrap, clickwrap, and in-box contracting. It includes discussion of arbitration clauses in such contexts.
Chapter 17, Privacy: HIPAA and Business Associate Agreements: New section 17:6, Enforcement Actions, discusses recent enforcement activity by the U.S. Department of Health and Human Services Office for Civil Rights (OCR), including an action against the University of Texas MD Anderson Cancer Center for violations arising from the loss of a laptop computer and two thumb drives, each of which stored unencrypted PHI, resulting in the OCR’s imposition of $4.3 million in penalties, and another action against Anthem, Inc. pertaining to the unauthorized disclosure of nearly 80 million unencrypted patient records, resulting in a resulting in a resolution agreement with a settlement of $16 million, the highest settlement amount to date associated with an OCR-enforced unauthorized disclosure matter.

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.