Taylor Swift, Sexual Assault & Miss Americana

Taylor Swift, Sexual Assault & Miss Americana

Why Miss Americana Matters

I wouldn’t consider myself a Taylor Swift fan, however, Miss Americana is a must-watch in my book. In Miss Americana  Taylor Swift goes from candidly talking about body image and seeking external validation to her sexual assault case. Taylor shares an unrestricted look into her experiences without veiling her emotions behind lyrics, and I am here for all of it.

Taylor highlights both the plight of staying relevant while not being taken seriously as both an artist and a businesswoman, as well as the blaming and shaming that happens to women when they report sexual assault.  With over 10 years as a Deputy District Attorney, I worked with more victims of crime than I can count. Victims of sexually violent crimes and fraud crimes suffered a different type of shame than victims of violent crimes. They often blame themselves, wondering if they should have done something different, or should have prevented what happened in some way. Often there is also a feeling of shock that the thing even happened.  In both fraud crimes and sexual assault, the perpetrator is the one who made the decision to cross that line, it is not the victim’s fault. 

From Harvey Weinstein to Taylor Swift

Taylor Swift talking about her experience highlights how prevalent negativity towards victims is. The Harvey Weinstein trial highlights how much backlash victims can face.  In an interview with The Daily Podcast, one of Harvey Weinstein’s Attorneys  Donna Rotunn was asked if she had ever been a victim of sexual assault and she stated “I have not because I would never put myself in that position,” she said. “I’ve always made choices from college-age on where I never drank too much. I never went home with someone that I didn’t know. I just never put myself in any vulnerable circumstances ever.” This attitude that women somehow ‘put themselves’ in the position to be assaulted is horse shit.

The Taylor Swift Assault

Taylor Swift was assaulted while she was at work. In 2013 she was at a meet and greet before a concert when a Radio DJ waiting to take a picture with her, in her words, grabbed a handful of ass.  She immediately told her security team, the radio station was informed and the DJ lost his job two days after the ass grab incident. It seems that Taylor Swift seemed to keep this incident quiet and out of the media. Then in 2015, the radio DJ sued Taylor Swift for Defamation requesting 3 Million in damages, Taylor countersued for the assault for a symbolic dollar.  

The trial wrapped up in 2017 with the Judge dismissing the defamation case, because it was bullshit, and the jury found in favor of Taylor Swift with regard to the assault. In Miss Americana Taylor talks about how it felt to be believed, and how in an incident with multiple witnesses and a photograph when it happened Taylor wondered out loud what happens to women who are raped or assaulted in private when it’s just their word against their attacker. She isn’t wrong…it is hard for victims to preserver through the criminal justice system. 
What I appreciate about Swift is how open she was in interviews after the trial about the process and how she pulled back the curtain on her experience in Miss Americana. During the trial the DJ  testified that the experience following this accusation of the assault was “humiliating” for him and that  “it cost me my career, the thing I love to do, my passion”. Here is what I love, Swift wasn’t having it and said, “I’m being blamed for the unfortunate events of his life that are a product of his decisions, not mine.” I hope that every person who has ever been made to feel small, to feel shame, to blame themselves for someone else decisions find strength in those words. 

If you want to hear more on the Taylor Swift Sexual Assault trial and Miss American be sure to catch Episode 19 of the Get Legit Law & Sh!t podcast

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Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

UBER Strikes Back

UBER Strikes Back

You have heard me talk a lot about AB5 from how it screws over content creators to the fact that freelancers have gotten laid off in droves. The so-called ‘UBER’ law has resulted in UBER responding in a multitude of ways.  So if you are wondering how AB5 affects UBER, if UBER is complying with AB5 or even if UBER prices will go up because of AB5 you are in the right place.

AB5 in a Nutshell

By way of review… AB5 is a new law in California that changes the way Independent Contractors are classified. The reason that California rushed AB5 through its legislature was as a response to a Supreme Court decision that implemented the ‘ABC’ test for independent contractors. Under the ABC test you determine if someone is an Independent Contractor by evaluating;

  1. The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact
  2. The person performs work that is outside the usual course of the hiring entity’s business.
  3. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

So What Is UBER Doing?

Since the passing of AB5 in September (it went into effect January 1, 2020), UBER has had several arguments and responses to the law. First, UBER argued that AB5 didn’t apply to them. The argument was that because UBER doesn’t identify itself as a ridesharing company, they argue that they are a software company, so, therefore, drivers are ‘outside of the usual course of the hiring entity’s business.’ 

 Next, UBER, LYFT, and DOORDASH decided to attempt to exempt themselves from AB5 by investing in a 90 Million dollar ballot initiative to have the voters decide if there should be exemptions for this type of Gig worker.  If you aren’t familiar with California’s ballot initiative system, in a nutshell, anyone with enough votes can get an initiative on the ballot and it will then become law if passed. If that goes to the voters in November we will see what happens.  But, in an abundance of caution UBER and POSTMATES filed a lawsuit against the State of California and the State Attorney General arguing AB5 is unconstitutional based on a number of factors.  

But What About The Changes UBER is Making In California???

I am assuming that UBER is hedging its bets on if they will actually win the lawsuits or end up on the ballot because they have changed their business model to give the drivers more autonomy. The changes that are rolling out in California are that  Drivers can set their own prices. So rather than relying on the UBER algorithm Drivers can lower their pricing or raise it up to five times the ‘suggested’ or algorithm rate.  

In addition, drivers can now see the destination of the trip before accepting and are given the ability to reject trips without penalty, which is a factor considered with regard to contractors and agencies. While UBER is attempting to make sure that the drivers don’t have to be converted to employees they have created another problem, it’s a problem for consumers as pricing will be going up. 

The attempt to comply with California’s AB5 has caused an additional issue for UBER. Drivers across the country are arguing that if Drivers in California are allowed to set their own rates then all Drivers should be allowed to set their own rates. The ability to set your own rate is a factor in all independent contractor tests, and the Driver’s have a good argument that California drivers shouldn’t be treated differently from Drive3rs across the US. 

If you want to hear more about UBER striking back against AB5 I discuss it in Episode 18 of the Get Legit Law & Sh!t podcast

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Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

Sued Over Yelp Reviews

Sued Over Yelp Reviews

You can get sued over bad yelp reviews.

If you don’t know this is a thing, let’s talk about getting sued over negative reviews. We aren’t talking reviews like in the Sunday Riley FTC settlements, where the company was leaving fake positive reviews for themselves. Here we are dealing with consumers getting sued for leaving negative reviews on sites like Yelp, Trip Advisor and others. This has become such an issue that the Federal Trade Commission stepped in.

Getting Sued for a Negative Yelp Review


Tom Loyd is a Flordia man who was sued by the Deland Animal Hospital for leaving a negative Yelp review.  Mr. Loyd told news sources that his dog suddenly fell ill and he rushed him to the Animal Hospital for a ruptured spleen requiring emergency surgery.  He was told the surgery would be done immediately. However, six hours later the Hospital called and told him to pick up his dog because they were unable to find a surgeon. When he got his dog to the next clinic they told him that it had been too long since the rupture and that the dog would need to be put down.

Tom left the following review on Yelp according to an article on CBS News “The staff had wasted six hours of Rembrandt’s life and destroyed whatever chance he may have had to live. Our Rembrandt deserved a better last day.” Look, I don’t disagree with Tom. His review isn’t slanderous, it isn’t even particularly mean. But that didn’t matter to the Deland Animal Hospital, who sued Tom over the review.

How can you sue over a bad review? 

In the realm of defamation, there are laws that protect against interfering with business relationships, and against malicious and false statements among other things. In Tom’s case, the Hospital argued that the review was false and malicious. Tom told CBS News that he was over 26,000 in debt fighting the lawsuit.

How is the FTC involved?

Companies attempted to protect themselves from negative reviews by putting clauses in their service agreements, and in the case of hotels, their rental agreements, to prevent individuals from publishing negative reviews. In response to the attempted contractural silencing of customers, the FTC passed the  Consumer Review Fairness Act. According to the FTC the Consumer Review Fairness Act “protects a broad variety of honest consumer assessments, including online reviews, social media posts, uploaded photos, videos, etc. And it doesn’t just cover product reviews. It also applies to consumer evaluations of a company’s customer service.”  To do that the act prohibits businesses from putting it in their contract that negative reviews can’t be left, or imposes a penalty or fee for someone who leaves a negative review or requires people to give up their intellectual property rights in the content of their reviews.

What can consumers do?

In an article, I was interviewed by The Points Guy.com for I suggested that consumers keep their reviews honest, dispassionate, and factual. Additionally, attempt to deal directly with an establishment if you have had a negative experience before turning to the internet to vent. I also support a good vent, type it, don’t publish it. At the end of the day relying on the adage “, the truth is an absolute defense”, can still land you tens of thousands if not hundreds of thousands in legal fees, even if you haven’t done anything wrong.  Keep yourself in the best position to not get sued by keeping reviews honest and factual.

For more about this topic the Get Legit Law and Sh!t episode 17 covers this topic.

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Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

Facebook v. CCPA

Facebook v. CCPA

Facebook v. CCPA

After everything Facebook went through with the Cambridge Analytica scandal and the massive lawsuits currently pending over violations of GDPR,  Facebook decided that California’s new privacy law, CCPA, just doesn’t apply to them…really Facebook??

So you are asking me…Emily, what is CCPA..sorry. Let’s get to that. The California Consumer Privacy Act or CCPA went into effect in California on January 1, 2020. However, the State of California is giving companies a 6-month implementation ramp so enforcements and lawsuits haven’t started flying just yet (but they will…..). To understand some of the criticism of this law is a steaming hot mess, you need to understand a little of where it comes from.

California’s Propositions… a whole new world. 

California is one of a few states that has a ballot proposition system. Every election year anyone with enough money (ahem…signatures), can include a proposition that can be voted into law. I won’t even get started on some of the poorly written messes to come out of the propositions. The Consumer Privacy Act of 2018 was backed by a real estate developer and gained enough support and signatures to be included on the ballot, however, the proposition was fairly strict and restrictive.  Naturally, the California legislature decided to rush through the California Consumer Privacy Act of 2018, fondly referred to as CCPA. The legislature rushed this through in exchange for the proposition being dropped off the ballot. 

This agreement has left consumer groups frustrated that the bill doesn’t go far enough and business frustrated with the most restrictive and unclear consumer privacy law in the country. Don’t worry though, at least 10 other states are considering similar legislation. Eventually, I believe there will be a federal law similar to GDPR so businesses aren’t complying with different privacy laws in different states.

Right…so what is CCPA actually. Well, it regulates how companies can collect, distribute, pass along to other companies and allows consumers more control to see and direct what happens with the information companies do have. To that end, Facebook does have a form for California residents to request what data Facebook has on them or to remove that data, so that’s something.

Under CCPA companies who are required to comply must, and this is my favorite part, must place a link on the front page of their website that says “do not sell my personal data”. That is where residents can access the data that companies have about them. Proponents of CCPA are optimistic that when companies implement CCPA they will think its such a pain in the ass to separate California residents from everyone else that they will just allow everyone accesses to their data. 

What Businesses Does CCPA Apply to?

There are of course rules about what companies are required to comply;  

  1. Businesses that make more than  $25 million in annual gross revenue. 
  2. Businesses where more than 50 percent of their revenue comes from the sale of California residents’ data.
  3. Businesses who process the personal data of more than 50,000 California reside.

The problem comes in with this pesky little word ‘sale’,  Facebook contends that as a company it does not sell data. In Facebooks Q4 earnings from 2019, the company made 16.9 Billion (Yes with a B), in ad revenue.  So how does CCPA define ‘sale’…  

So what’s a Sale?

CCPA defines Sale as: ‘“Sell,” “selling,” “sale,” or “sold,” means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration.” -CCPA

Given that definition of sell, it’s hard to comprehend that Facebook who made over 16.9 Billion on selling ads doesn’t ‘sell’ data. Facebook argues that because they are using the Pixel they are not selling data. However, the ads are valuable because of the DATA! Business are buying ads because they can specifically target their ideal individuals. 

So where we stand now Facebook is arguing that they have basically complied and that the law doesn’t really apply to them anyway. I would love to hear your thoughts on this level of BS.…let me know your thoughts on Instagram @TheEmilyDBaker.

If you want to hear more of my thoughts on Facebook v. CCPA  Episode 16 of Get Legit covers it! Don’t forget to drop a review if you love it.

 

Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

Questions for Emily? Just Ask...

9 + 13 =

The Sunday Riley FTC Settlement

The Sunday Riley FTC Settlement

What is the Sunday Riley FTC settlement?

The Sunday Riley FTC settlement gives us a lot of insight into the direction the FTC is taking their action towards false advertising claims, and some amazing tea.  I am not going to lie, I love it when the FTC isn’t afraid to just lay someone out. That said the Sunday Riley FTC settlement doesn’t require Sunday Riley to admit fault, so everything stated is alleged. However, alleged with quite a bit of actual quotes, and evidence, but still, fault has not been admitted by Sunday Riley.

So what is Sunday Riley alleged to have done?

The FTC Alleges that Sunday Riley violated the law by: 

  1. Making false or misleading claims
  2. Failing to disclose that the reviews were written by her and her employees

It’s further alleged that between 11-2015 & 8-2017 managers including Ms. Riley herself posted reviews of their products on the Sephora website using fake accounts (presumably to hide their identity) and requested other employees to do the same thing. But it doesn’t just end there.  Because Sephora is a pretty savvy company. Sephora removed the reviews. The Sephora website recognized the reviews had all come from one IP address. When numerous reviews on the same product come from one IP address it’s no wonder it’s flagged in the Sephora system. Fake reviews are a raising concern online and I appreciate that Sephora is attempting to combat that. 

Oh, but there is TEA!

The Sephora websites’ fraudulent review system didn’t stop Sunday Riley…. NOPE. In the Sunday Riley FTC Settlement press release the FTC quotes a company manager “They got an Express VPN account to allow us to hide our IP addresses and location when we write reviews”. Seriously…the balls. It seems Sunday Riley as a company got a VPN, or Virtual Private Network service to mask their IP address to game the Sephora system so they could continue leaving bogus reviews.

The press release goes on to quote an email from  Ms. Riley to her team where she directed her staff to “create three accounts on sephora.com registered as different identities, and then leave 5-star reviews when reviewing Sunday Riley skincare products and dislike negative reviews “if you see a negative review — DISLIKE IT’ Ms. Riley went on to say “after enough dislikes, it is removed. This directly translates into sales’. But that isn’t all, according to the FTC, that email also included step by step instructions to her team to use the VPN to set up new personas and hide their identities!!

In the Sunday Riley FTC settlement, it was agreed that;

  1. The company barred from reviewing it’s on products online 
  2. Must instruct employees never to review a product without disclosing their relationship to the company
  3. The settlement is intended to ‘ensure the respondents do not engage in similar allegedly illegal conduct in the future

Not all of the FTC commissioners agreed with the Sunday Riley Settlement. Commissioner Chopra joined by Commissioner Slaughter (no I didn’t make that up but Slaughter is baller last name.) dissented, with the fact that the settlement was too lenient. The dissent continued arguing that the settlement will not deter other firms from ‘engaging in fake review fraud, which is a growing issue in the online space.’ They took issue with how long this fraud was going on, yea…almost two years of systematic fraud, and fraud clearly for the purpose of financial gain.

The commissioner stated in sum “ [t]his statement sends the wrong message to the marketplace, dishonest firms may come to conclude that posting fake reviews is a viable strategy, given the proposed outcome here. Honest firms, who are the biggest victims of this fraud, may be wondering if they are losing out by following the law.” Honestly, I agree with them. 

You may be wondering how the FTC even finds out that a Company like Sunday Riley is perpetrating this type of scheme….well the way a lot of government agencies find out about things. An ex-employee made a comment about it.  According to a Buzzfeed article a former employee of Sunday Riley posted on Reddit stating that the company was using fake reviews and that the company encouraged people to make positive reviews. The thing is that in making reviews you have to disclose if you have a relationship with the company financial or otherwise.

Companies have to understand the rules in the online space and must advise their employees of those rules. False Advertising is a crime, failing to disclose a relationship is a crime. Companies cannot ignore how the growth of social media can affect them, and companies will do well to remember that there is a fine line between ethical advertising and ending up like Sunday Riley.

I would love to hear your thoughts on this settlement and the actions of Sunday Riley…let me know your thoughts on Instagram @TheEmilyDBaker.

If you want to hear more of my thoughts on the Sunday Riley FTC settlement and similar cases Episode 15 of Get Legit covers it! Don’t forget to drop a review if you love it.

 

Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

Questions for Emily? Just Ask...

11 + 7 =

California’s Freelance Apocalypse has begun.

California’s Freelance Apocalypse has begun.

California begins the Freelance Apocalypse

You have likely heard of California’s AB5 by now. You know the new law that has changed the test for who qualifies as an independent contractor making an estimated 1 million freelancers employees as of January 1, 2020, according to an International Business Times article. Most assume that this law was ushered through the California legislature with little through for the fallout. Which, seems to be the case, but it was the law of the land before the bill was signed due to a California Supreme Court decision in the Dynamax case.

That decision changed the law, the rather rushed bill just applied further parameters, fines for lack of compliance, more bureaucracy and carved out exceptions for some (lawyer, doctors, realtors, HR professionals), and left many others wondering what the fu$k they are supposed to do now (fitness trainers, truckers, pilates instructors, musicians, photographers, a large majority of writers). 

I work with online business owners varying from service providers to the course and content creators to straight-up creatives. All of these businesses thrive and survive on collaborative work with independent contractors. Most of my clients are moms who opted for more freedom for their family and took to the internet to carve out a living. Now, these same businesses that allow women to make choices about their child care and children’s schooling are facing either an increased workload, increased overhead or potentially the closing of their business. 

I have been fielding calls for weeks from freelancers and business owners alike asking the same question ‘what do I do now’. Out of state businesses are choosing to cut ties with California freelancers. Businesses within California are also ending their relationships with freelancers, requiring them to either apply for positions as employees (where they will get paid less and lose a lot of the tax benefits of running your own business), or their contracts are just ended.

The thing that hasn’t been considered is how much this hurts freelancers who love working that way. As a freelancer you set your own hours, take on work as you choose to, experience the tax benefits that come with owning your own business and own your intellectual property (if your contract is written well by an awesome lawyer like me). As an employee, your intellectual property belongs to your employer. A consequence that obviously wasn’t considered by the legislature. 

The termination of contracts for hundreds of Vox Media freelancers this week is the beginning of a landslide for freelancers in California. I have one question for you guys…..where are we moving??

If you need more information on AB5 and how it may affect you and your business I have other resources on the topic.

RESOURCES

Get Legit Law & Sh!t Podcast covering the topics

Blog Article “AB5 and YouTube Creators”

The Independent Contractor Guide is coming soon and you can sign up for it below. 

If you have a community that needs this information I am here to help. Shoot me an email to hello@emilydbaker.com. I am happy to talk to your community, podcast, or channel about how to Get Legit™.

Grab the Independent Contractor Guide!

Check out this FREE guide to help you figure out Independent Contractor Rules & AB5, Enter your email and then choose if you would also like to also join my email squad. Cause I would love to keep you informed about the changing online laws.

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Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

Questions for Emily? Just Ask...

4 + 2 =

What Content Creators Must Know about COPPA.

What Content Creators Must Know about COPPA.

If you are feeling stressed and confused about YouTube, COPPA, Content Creation and the FTC you are not alone. The recent and historic fine levied on YouTube and parent company Google by the FTC is a clear indicator to content creators on all platforms that winter change is coming. I have gotten quite a few questions about this because I am a lawyer and a content creator..so let’s talk about it a bit more.

What can content creators do?

First, the fact that you are paying attention is a huge plus. You are taking action to make sure that your content isn’t going to create problems for you. If you are on a non-monetized platform, pay attention to the rules regarding collecting or encouraging the collection of information. If you are on YouTube then you are aware that you need to start indicating if your content is made for children and understand what content could be considered to have an ‘intended audience’ of children under 13. 

Is your content ‘child-oriented’?

The FTC published a Six-Step Compliance Guide in 2013. Despite this YouTube asked the FTC for further clarification last week. This is likely because YouTube is getting screamed at by content creators who have no idea how to comply and YouTube is doing its best to pass all the responsibility for compliance along to creators. This despite the fact that the FTC listed how YouTube must comply, and the fact that COPPA was enacted into law before YouTube even existed and they have blatantly ignored it for over 13 years…but I digress…

‘Child Oriented’ or whether the ‘Intended Audience’ is under 13 is determined by the FTC by evaluating the following factors. 

  1. The subject matter
  2. Visual content
  3. Use of animated characters or child-oriented activities & incentives
  4. The kind of music or other audio content
  5. Age of models
  6. Presence of child celebrities or celebrities who appeal to children
  7. Language or other characteristics of the site
  8. Whether advertising that promotes or appears on the site is directed to children &
  9. Competent and reliable empirical evidence about the age of the audience 

If you are thinking that this could be literally anything and this isn’t helpful at all, you aren’t alone. With regard to the content, you create remember that COPPA doesn’t forbid content created for children under the age of 13. It prohibits certain tracking behaviors. So if you make content that falls under one of these prongs as a YouTube creator first you need to make sure to indicate it on the YouTube platform itself.

Next, you need to be aware of what you shouldn’t be doing.

What does COPPA prohibit?

“ You cannot collect information online regarding children (any under 13) through means like passive tracking, requesting, prompting, or encouraging them to submit personal information or enabling a child to make personal information available in an identifiable form” FTC.gov. This is where YouTube got into the shit. YouTube was tracking viewers of ‘children-oriented’ content and serve ads based on tracking behavior. 

If children under the age of 13 are being tracked by cookies like Google Adsense or Facebook pixel then the operator of the website MUST have VERIFIABLE PARENTAL CONSENT. Yuuuppp. This is what YouTube was lacking. However, I think the FTC is really clear that the WEBSITE OPERATOR is the one responsible, that would be YouTube. 

This prohibition on collecting information extends to usernames and screen names. Yes, that means asking viewers to comment is problematic. The first step is understanding your content and making sure it’s clear who it’s intended for. The second step is understanding what you can and can’t do.

What can creators do to protect themselves?

While I think YouTube will continue to try to pass the responsibility to creators it is ultimately YouTube who has the power to stop tracking. What this likely means for creators whose content can be considered child-oriented is that their ad revenue will go down, they will see monetization turned off on some content, they will see comments potentially disabled on some content. We know that engagement drives how videos show up in search and how they are suggested by YouTube so videos will likely be suggested less. Creators need to be ready to ride this out while YouTube figures out how and if they will continue to serve ads on child-oriented content. 

One of the most important things in all of this is that Creators make sure they don’t encourage information to be shared, that means not asking for comments or for engagement that requires a screen name or username to be shared. That they do not host giveaways where there is no age verification to ensure minors under 13 don’t enter. The onus is on YouTube but creators will get thrown under the bus in a second. So be smart, stay informed (you can always follow me on social cause I am not going to stop talking about this anytime soon @theemilydbaker… shameless plug over) and talk to other creators in your space. 

I also have two podcast episodes on this topic, or you can find Get Legit Law & Sh!t in your favorite podcast player.

If you have any questions hit the contact form below, I am here to help.

If you have a community that needs this information I am here to help. Shoot me an email to hello@emilydbaker.com. I am happy to talk to your community, podcast, or channel about how to Get Legit™.

Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

Questions for Emily? Just Ask...

13 + 1 =

YouTube & Google Fined 170 Million for violating Children’s Privacy Laws

YouTube & Google Fined 170 Million for violating Children’s Privacy Laws

In a historic move, the FTC has fined YouTube and it’s parent company Google 170 Million for violations of the Children’s Privacy Law. Let’s break it down, who is the FTC, what is the Children’s Online Privacy Protection Act (COPPA), WTF did YouTube do to get this much hate and what comes next. 

Now it’s time for a Break Down

1. The FTC

The Federal Trade Commission (FTC) is a federal government agency in the United States who is tasked primarily with consumer protection through stopping ‘unfair, deceptive or fraudulent practices in the marketplace’ -FTC.gov. In the last 10 or more years, the FTC has been really busy regulating online practices, this includes protecting consumer and children’s privacy, regulating advertising practices and regulating how private information may be tracked online. The FTC does this by passing regulations and acts like the Children’s Online Privacy Protection Act (COPPA). 

2. COPPA (not the Cabana)

Which brings us too …what the hell is COPPA. COPPA was enacted in 1998 and is one of the many laws governing how we interact online and it states in part that websites “cannot collect information online regarding children (any under 13) through means like passive tracking, requesting, prompting, or encouraging them to submit personal information or enabling a child to make personal information available in an identifiable form”. www.ftc.gov . There are a substantial number of guidelines in the law which I cover in detail on the Get Legit Law & Sh!t podcast. But know, that the FTC breaks that shit down …all the way.

3. How Did We Get Here?

So why is the FTC salty with Google and YouTube? First, it’s not just the FTC, the state of New York also sued Google & YouTube in this case …but for the sake of being brief, I will continue to just refer to the FTC. The FTC states in their complaint that YouTube violated COPPA by using cookies to track viewers of YouTube channels with child-directed consent. The FTC states that YouTube earned millions of dollars by using these cookies to deliver targeted advertisements to viewers of these channels.

The thing that really pissed off the FTC is the fact that YouTube touted itself as “#1 website regularly visited by kids” and as being “today’s leader in reaching children age 6-11” and by stating to advertisers Mattel and Hasbro essentially that YouTube was the best place to reach kids and was competitive with any TV channel out there. Look, just from my kids’ behavior, I believe all of it. My kids love YouTube, their friends love YouTube and if I don’t buy some merch from Ryan of Ryan’s Toy Review this Christmas my 7-year-old may try to find a new family.

FTC Chairman Joe Simons stated in the agencies press release that “YouTube touted its popularity with children to prospective corporate clients yet when it came to complying with COPPA the company refused to acknowledge that portions of its platform were clearly directed to kids. There’s no excuse for YouTube’s violations of the law”.  

The FTC even included the following images in its press release just to drive home the point that YouTube held itself out as an attractive offering for advertisers based on their access to children. But this isn’t a first for Google. As the image from the FTC shows Google has been fined 258.2 million in fines since 2012 for privacy violations. 

But Wait…There’s More.

In addition to the fines, the fine requires Google and YouTube to develop, implement and maintain a system that permits channel owners to identify their child-directed content on YouTube so that YouTube can ensure that it’s complying with COPPA= and companies must notify channel owners that their child-directed content may be subject to COPPA and provide annual training about complying with COPPA for employees who deal with YouTube channel owers. YouTube also must show that they are obtaining verifiable parental consent before collecting personal information from children.

As of December 12, 2019, YouTube has reached out to the FTC for further guidance to help creators comply with COPPA. Notice how YouTube is shifting the burden of compliance away from the platform and onto creators?? Last time I checked it was YouTube and Google who are in charge of serving ads on creator channels. YouTube is in sole control of what ads are shown and even if ads are shown on a particular channel. Yes, YouTube has made it possible for content creators to state if their content is directed at children, but YouTube has provided little other guidance, so this is an evolving issue and there will be more on this to come! 

Tune in for Get Legit Law & Sh!t next week for my suggestions to creators and all website owners on COPPA compliance and a few other interesting ways the FTC has been cracking down. 

If you have a community that needs this information I am here to help. Shoot me an email to hello@emilydbaker.com. I am happy to talk to your community, podcast, or channel about how to Get Legit™.

Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

Questions for Emily? Just Ask...

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WTF is the CLOUD Act & why it matters to you.

WTF is the CLOUD Act & why it matters to you.

What the CLOUD Act Is.

The United States and the UK just signed the first-ever bilateral data-sharing agreement called the CLOUD Act, which means Clarifying Lawful Overseas Use of Data. So you may be asking yourself WTF is that and why does it matter. Well, this first of its kind legislation allows law enforcement to request access to electronic data directly from the tech companies in either country. So the FBI can request data from UK based companies and UK law enforcement can request data directly from companies like Facebook and Google. Here is what’s concerning to this former prosecutor, the Act allows the request WITHOUT a warrant or strong probable cause. In the US this act was slipped quietly into a spending bill (don’t you hate it when they do that!). Now there are other treaties and acts in place to allow countries to cooperate with each other in regards to threats, potentially criminal behavior, but this takes it further.

What is the big deal?

If there is no requirement of a warrant who is vetting the propriety of the requests? Is it up to the tech companies to stand up to law enforcement requests? However, it does put some context to Facebook’s recent announcements that one of their primary focuses will be encrypting data. Facebook released a post titled ‘a Privacy-Focused Vision For Social Networking’ on March 6, 2019. I believe that Facebook saw the writing on the wall, knew that CLOUD was in the pipeline and was aware of CLOUD’s one massive exception. Encryption.

Yup, the CLOUD Act cannot reach data that is encrypted end to end. So while Apple and Facebook are pushing harder into encryption the US Government is demanding that Facebook allow backdoor (unencrypted) access to data. I don’t always agree with Facebook but in this instance I completely get it. Facebook doesn’t want to have to be a gatekeeper in this way and is likely freaked the fuck out that law enforcement can request data without a warrant. If the data is encrypted Facebook can simply shrug and say ‘sorry bro…nothing we can do’. 

Why it matters?

What is so interesting to me is that the story to the public continues to be increased privacy…. Governments are pushing data privacy with GDPR (the EU’s General Data Protection Regulation) and California’s soon to be enacted CCPA (California Consumer Privacy Act). So on one hand data is becoming harder to access as an online business or marketer, but it’s getting a bit easier to access for government agencies, and I can’t yet reconcile the two.

Look, I understand that acts of terror and mass harm are coordinated online. International sex trafficking is a real issue not to mention other areas of cybercrime that would take me down a totally different rabbit hole of weapons and organ trading….. But the public conversation is that your data is going to be more private, more secure and harder to access, what is actually happening is that your data will be easier to obtain in some situations. 

I think the conversation should include all of it. If you have even heard of the CLOUD ACT before will you drop me a comment, because unless you travel in deeply nerdy cybersecurity or government regulatory circles I am guessing that this is news to you. So let’s start the dialogue. Let me know what you think in the comments, does this freak you out? Do you get the ‘greater good’ argument for making data easier for law enforcement to obtain? Do you agree with Facebook pushing to encrypt data end to end to avoid all this? 

Let’s keep this conversation going! 

www.Instagram.com/TheEmilyDBaker

For More on This Story

https://wccftech.com/cloud-act-passed/

https://www.jurist.org/news/2019/10/us-uk-sign-landmark-data-sharing-agreement/

https://wccftech.com/us-uk-bilateral-data-sharing-agreement-cloud-act/

If you have an Etsy store or a handmade business - this post is for you! Did you know that you need to have a licensing agreement to make products with someone else's logo? Click to read more!
Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

Questions for Emily? Just Ask...

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Will the story of the woman banned from Walmart for drinking wine from a Pringle’s can cause an online business to be sued by Kellogg?

Will the story of the woman banned from Walmart for drinking wine from a Pringle’s can cause an online business to be sued by Kellogg?

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A Little Back Story

You need a little back story for why online business ‘The Cup Artist’ could end up in legal trouble over recent media attention…. See ‘The Cup Artist’, hereafter ‘Cuppy’ who appears to run most of their business on Instagram (a post for another day), has capitalized on the pop culture cautionary tale hero, who has captured media attention for drinking wine out of a Pringles container in the Walmart parking lot at 6:30 am and joyriding an electronic shopping cart, you know, just living her best. Well, our hero apparently got banned from Walmart. Yup, fucking banned….have you ever seen People of Walmart?  I am shook that this incident resulted in a LIFETIME BAN from Walmart. But that isn’t my point, it’s just the backstory.

The Tea from Today

Today I started seeing the media attention for Cuppy, who sells custom powder coated drinking cups according to the business Instagram page. A quick glance at said page shows she is selling swag with the logos of Jeep, State Farm, Pringles, GE, LuLaRoe etc. Now, from a company that doesn’t have a Privacy Policy on their website (you know how I feel about that), how much do you want to bet that Cuppy has permission to reproduce and sell these logos? All, I will bet you all the money that this shop doesn’t have the licensing agreements for this. You may be thinking ‘Really Emily, a licensing agreement’….yes! Why do you think everyone advertises around ‘The Big Game’ and not The Superbowl®? It’s because Superbowl is a registered trademark of the NFL and you cannot use it to advertise or sell merchandise without a licensing agreement.

So the media attention that Cuppy is receiving will likely result in a bitch ass Cease & Desist letter from the legal team that works for Kellogg. You may remember that Kellogg purchased the Pringles brand from Procter & Gamble in 2012 for 2.7 BILLION dollars. That’s right….2.7 BILLION dollars!! With that sale, Kellogg would have received recipes, trade secrets, and intellectual property rights…including the rights to the Pringle LOGO.  

Yes, Cuppy, that little ® isn’t just a cute addition to the logo. It’s a Registered Trademark, so without a licensing agreement with Kellogg, you can’t just rip off reproduce their logo and then sell it. Also, it’s clear from the photographic evidenced that Cuppy is  aware of the mark because the ® is under the logo on the violating cups!! 

Friends, Don’t be that online business. Don’t be cool with, or at best ignorant too, violating other people’s intellectual property rights for 15 minutes. It isn’t a good look. I will just remind everyone for a moment about the LUSH cosmetics case where the federal court found that LUSH cosmetic hadn’t enforced its trademark adequate and they became unable to shut down infringers LUSH clothing. Trademark really really does require that you protect it or lose it. So, when you pay 2.7 BILLION for a company, what do you do? You protect that shit.

I just cannot support this.

You guys know me, I support online business, but when someone is grabbing at their 15 minutes by violating someone else’s rights I get heated. That, and this is a perfect example of Trade Dress, which we haven’t discussed in a while. Trade Dress is an area of Trademark that isn’t talked about frequently but should be at least basically understood because it may apply to your business. Trade Dress protects you beyond just the logo. It protects the look and feel of aspects of your brand like the packaging. So, a great example of Trade Dress…. A freaking PRINGLES CAN. So look at the photos below from Cuppy’s Instagram photos with their cups alongside actual Pringle’s cans below and ask, if this was happening to your company how would you feel? Would you think this replicates the look and feel of your packaging? Would that piss you off?

I ask you, is your business adequately protected if this happens to you? If you have questions about protecting your own business or just want more of the TEA (you know like the LuLaRoe article) on the legal stuff you can join my email list below. I am here to help online business owners not end up like Cuppy.

*header image from www.munchies.com modified by me.

All images from Instagram @TheCupArtist

This business doesn’t seem to mind the media attention….
If you have an Etsy store or a handmade business - this post is for you! Did you know that you need to have a licensing agreement to make products with someone else's logo? Click to read more!

Want to stay in the loop? Join my email tribe!

Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

Questions for Emily? Just Ask...

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The End of LuLaRoe

The End of LuLaRoe

Is this the end for LuLaRoe?

The latest lawsuit against LuLaRoe may be the end. That, topped with some shady ass behavior by their CEO and retailers fleeing the company I am calling it. LuLaRoe is canceled. Oh, yea…do not miss the part below where the CEO basically tells everyone to fuck off.

Looking at the turbulent past of LuLaRoe

If you aren’t familiar with the considerable legal troubles facing LuLaRoe (LLR), let’s have a quick chat.  Before this November 29, 2018 lawsuit seeing 48 million in damages, there are at least 17 pending actions against LLR. I am only covering a fraction of the backstory.  In April 2017 a class action lawsuit was filed against LLR by consumers complaining of the pants ‘shredding like wet toilet paper’…side note, I have had that experience with these leggings too. Consumers product dissatisfaction was reaching a high, and the reviews on sites like the Better Business Bureau were scathing. It seems that LLR attempted to abate the flood of retailers closing up shop and selling product at deep discounts online by altering their return policy. LLR was allowing retailers to return their product for a 100% refund with free shipping. This came to an abrupt halt in September 2017.

In October 2017 LuLaRoe was hit with a federal class action suit seeking 1 Billion in damages. It was also hit with smaller lawsuits from retailers left with unsellable inventory that they couldn’t return due to the change in refund policy.   The Billion dollar suit is from the retailers claiming that the company was a pyramid scheme and induced retailers to purchase between $6,000 and $20,000 in inventory. The lawsuit alleges that retailers were consistently pushed to buy more stock.

Look,  LuLaRoe fundamentally doesn’t meet the definition of a Pyramid Scheme because actual products are being sold (I have a drawer of leggings to prove it). However, the business practices here are questionable, and the LuLaRoe profit structure is not very friendly to its retailers. Furthermore, the abrupt switch in the return policy indicates a company that doesn’t have any qualms about screwing over those who are selling its products. This kind of behavior makes it easier for me to understand the allegations in the current suit. 

The 48 Million dollar lawsuit against LuLaRoe

So let’s get into what is going on now in Providence Industries, LLC v. LuLaRoe, LLC, et al. First the plaintiff company, Providence Industries, LLC.,  is an apparel design, manufacturing, and supply company who was supplying leggings to LLR and securing other suppliers. The actual debt owed to this company is over 33 million in unpaid invoices. THAT IS THE ACTUAL DEBT!!! This suit has ten causes of actions or things Providence is alleging that LLR did wrong, including Breach of Contract and Fraud. This case is pleaded with some particularity and lots of tea. Stated differently, the facts contained in this complaint, if true, outlines founders of a company who were willfully siphoning off money while giving zero fucks about the quality of their product or the retailers selling it.

You may think I am being harsh. I promise I am not. The complaint states that when CEO and co-founder of LLR Mark Stidham was approached by plaintiff company about the outstanding millions he said: “look, guys, I am not going to pay you guys a fucking dime unless a judge orders me to pay it, and Deanne and I will take our two to three hundred million dollars to the Bahamas, and fuck everything.” (Providence v. LLR  RIC 1825263 pg 13 ln. 28 – pg 14 ln. 2). Really Mark? You going to take your two to three hundred million earned exploiting moms selling leggings and bounce to the Bahamas while telling everyone else to fuck off?

What pisses me off is that this company  (which, as of 12/1/18, is still accepting retailer applications on their website) preys on moms looking to make extra money for their family. Promising on its website that you can ‘Be your own boss,’ ‘Have more time for what matters,’ ‘Live your best life’ and ‘Achieve your Dreams!’ The real story seems to be that Mark was blaming the failure of this company on the very retailers who built it while not giving a shit about the decrease in quality of their clothing that was likely responsible for the decline in sales. AND, while retailers are being screwed by the return policy, this complaint alleges that Mark is buying himself cars valued at $700,000 and $2 million, private planes, and a multimillion dollar ranch.

Not only was Mark Stidham allegedly blowing through funds that should have been paying suppliers, but the complaint points to over 15 shell companies which were incorporated in December 2017 to shield LLR assets. Now the courts may be able to get into those corporations to get some funds back, but the funds aren’t going to get back to the retailers who believed that this company could provide them a business that would enhance their lives. It really seems that the Stidham’s don’t give a shit about their retailers though. An interesting article on Racked.com covers a training webinar where Mark lit into retailers for not selling enough, calling them ‘stale’ and saying that their customers were ‘stale.’ The retailer who spoke to Racked said that Mark’s “comment struck me as that of a man who feels superior to anyone who goes against him, particularly women.” Smith told racked “that she often felt his comments on the weekly calls had an underlying threatening tone.”  Seems to me that this is precisely the kind of guy who would take his money to the Bahamas while flipping everyone else the finger.

If I were a LLR retailer, I would be done after reading this suit. To any retailers trying to get your money back from inventory, I wish you the best of luck because you deserve better than this. However, the writing is on the wall, and I will update this post when LLR files for bankruptcy because I Imagine it won’t be that far off.

So….if you love the legal tea and want to keep up with this story, or you are running a business and want to make sure you are doing it right, sign up for my e-mail list below and I will keep you in the loop with two emails a month. It’s not a major committment and I don’t want you to miss a thing!!

image from lularoe’s official instagram
Click the image for the full complaint
Have you heard about the LuLaRoe lawsuit? Could this be the end of LuLaRoe? I'm predicting a bankruptcy in the near future. Click through to read the details!

  Want to stay in the loop? Join my email tribe!

Emily D. Baker, Esq.

Emily D. Baker, Esq.

Badass Lawyer for Online Business

Emily has been running business for 15 years and has ove 13 years of legal experience. She spent 10 years at the Los Angeles County District attorney's office where she truly learned to be a solopreneur. Emily has built her consulting and speaking business from the ground up, in her garage jamming out to 90's music. She specializes in no BS practical advice for the starting and scaling online entreprenur. Emily will tell you what the business gurus can't in a way that is both hillarious and empowering.

Contact Emily

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