- Unfree speech? In the United States, the First Amendment would likely prevent the prosecution of someone who posted racist or anti-Semitic messages on a social media platform. But social media platforms operate worldwide, and many nations’ laws are much less permissive when it comes to speech of this type. Following a French case in which Twitter was forced to remove certain anti-Semitic content, many operators of social media platforms have updated their terms of service to comply with European laws regarding racist statements, Holocaust denial and other hate speech.
- By invitation only. Google is currently rolling out Inbox, a new email system with added features that may eventually replace Gmail for some users. Interestingly, Google is initially making Inbox available only by invitation. Each person with an Inbox account can invite up to three friends by clicking a “golden ticket” icon. It’s not clear why Google is doing this. According to an article on Techcrunch, Google may be trying to create a “sense of buzz” for the new app so that it can grow the user base inexpensively and virally.
- Not with a bang but a whimper. Last month, we wrote about the long-drawn-out trademark battle between Twitter and Twitpic in which Twitter said it would prevent Twitpic from gaining access to its API if Twitpic did not abandon its trademark. Twitpic decided to shut down instead, and we just heard the last bit of news on this dispute: Twitpic’s archives of photos will remain accessible and available for perusal, but no new additions will be allowed. And Twitpic is ending the availability of its mobile apps. So if you put a photo on Twitpic a year ago, you’ll still be able to find it, but that’s about all.
Big Brother isn’t just watching. A single mother in upstate New York was surprised to find that she had a Facebook page in her name, complete with photos of her, her son, and her niece. She hadn’t actually set up the page. It turned out that she was being investigated as a bit player in a federal drug investigation and that the Drug Enforcement Administration had created the page in her name, without her permission. The page, which has since been taken down, used the woman’s real name as well as photos from her cell phone, which had been seized by the DEA. The DEA even went so far as to send and accept friend requests for the woman. The woman was sentenced to probation and has sued the DEA agent who put up the page. Facebook says impersonating someone to set up a page is a clear violation of its terms of service.
Transparency vs. security. Twitter and other technology and communications companies frequently receive requests from the U.S. government for user data that the government asserts it needs for national security purposes. In the interest of transparency, these companies wish to disclose how many such requests they have received, if any, in a given span of time. The government wants to restrict the dissemination of this information and, earlier this year, it reached a settlement on the issue with Google, Microsoft, LinkedIn, Facebook, and Yahoo. Twitter did not reach any such settlement and it has now sued the government in U.S. District Court in California, claiming that the government restrictions violate the First Amendment. The government argues that the more is known about its sources and methods in collecting national security data, the less secure the nation will be. This should be an interesting First Amendment case.
In the city there’s a thousand things. There’s been a lot of talk about “the Internet of things.” Google now wants to bring the Internet of things directly to city dwellers. What about Zipcars that broadcast when they’re available, or bus stops that communicate with your mobile device about the next bus arrival? As part of its “Physical Web” initiative, Google is seeking to bring these and similar features to the urban environment. The idea is to interconnect seemingly unconnected physical objects that city dwellers encounter on a daily basis. As a Google designer says, “Just tap and use.”
- Ahead of the law? In Hidalgo County, Texas, a former sheriff has been sued civilly over allegedly illegal campaign contributions. (He was also criminally convicted of money laundering.) At a civil deposition in the case, a lawyer for the plaintiff attempted to send live tweets from the deposition room. The judge ordered that the live tweets must stop — saying, “Our technology is far outpacing our ability to formulate rules.”
- Fake book. A booking agent in the music industry is using California’s cyberbullying law as a basis for a lawsuit that he filed against a former colleague. The lawsuit claims that the former colleague defamed him by setting up a fake Twitter account in the plaintiff’s name that made him “appear to be foolish, inept and sexually perverted.” The defendant says that although the fake account exists, he had nothing to do with setting it up.
- Principal objections. A New Jersey high school is revising its social media policy after settling a lawsuit brought by a student who was disciplined for tweeting disparaging remarks about the school’s principal. The student’s federal lawsuit claimed that the school violated her First Amendment rights when it punished her for “purely off-campus” speech.
- The New York Court of Appeals has struck down that state’s “cyberbullying” law in a 5-2 decision, finding that it is overly broad and chills First Amendment-protected speech. The case arose when a 15-year-old boy pleaded guilty under the law to creating a Facebook page that included graphic sexual comments alongside photos of classmates at his high school.
- Twitter names a new CFO with a background as an investment banker at Goldman Sachs. The growth in Twitter’s user base seems to have stalled, and some speculate that this appointment means that Twitter may be looking to make an acquisition or two.
Mark Zuckerberg famously stated that the purpose of Facebook is “to make the world more open and connected,” and indeed Facebook, other social media outlets and the Internet in general have brought worldwide openness and connection-through-sharing to levels unparalleled at any point in history. With this new universe of limitless dissemination often comes the stripping away of privacy, and “revenge porn,” a relatively new but seemingly inevitable outgrowth of social media and the Internet, is stripping away privacy in the most literal sense.
Defining “revenge porn” is relatively simple and does not require any sort of “I know it when I see it” test; in short, “revenge porn” is the act of publicly disseminating nude photographs or videos of somebody without her or his consent. The name derives from the fact that the act is most often associated with spurned men posting photos on the Internet that were received from their ex-girlfriends in confidence as “revenge” for breaking up with them or otherwise hurting them. But recently, more and more photos are popping up that were either taken without the victim’s consent or that were obtained by hacking a victim’s email or computer. Revenge porn website operators invite users to post nude photos of their exes (or of anybody else, for that matter) and often allow the community to comment on the photos (which in many cases results in a barrage of expletives aimed at shaming the victim).
Recently, operators of revenge porn sites have taken attacks to a higher level, inviting visitors to post victims’ full names, addresses, phone numbers, places of work and other items of personal information alongside their photographs. In some cases, victims’ faces are realistically superimposed onto nude photographs of pornographic actors or actresses in order to achieve the same effect when no actual nude photographs of the victims can be found. Victims of revenge porn often suffer significant harm, facing humiliation, loss of reputation, and in some cases, loss of employment. Due to the all-pervasive and permanent nature of the Internet, once a victim’s photo is posted online, it is very difficult for him or her to have it completely removed. Operators of revenge porn sites have sometimes capitalized on this fact by offering to remove the photos for a fee (or running advertisements for services that will do so).
Operators of revenge porn websites often shield themselves behind the First Amendment, and website operators have been known to employ sophisticated legal teams in order to protect themselves from civil and criminal liability and to maintain operation of their sites. Nonetheless, the law provides several avenues for victims seeking to have photos removed from websites, obtain restitution and, to the extent damage has not already been done, clear their names.
Self-Help as a First Step
Although the Internet is the tool used to disseminate revenge porn, it also now provides resources for victims who seek help in dealing with this invasion of privacy. The website WomenAgainstRevengePorn.com contains a step-by-step guide to getting nude photos removed from the Internet, as well as contact information for lawyers and other advocates for revenge porn victims in various states.
According to WomenAgainstRevengePorn.com, the first step to mitigating the damage of revenge porn is to establish more of an online presence. Although this may be counterintuitive, it is actually a logical approach: one of the biggest harms of revenge porn is that a friend, family member or employer will find nude photos when entering the victim’s name into a search engine. By opening Facebook, Twitter, Pinterest and Instagram accounts under his or her name, a victim may be able to move the revenge porn photo to a lower position in search engine results.
Because nude photos tend to be spread quickly on the Internet, WomenAgainstRevengePorn.com also encourages victims to use Google’s reverse image search engine to find all websites where the victim’s photos may appear. After taking careful note of all locations where such photos appear, victims are encouraged to file police reports.
The next step in removing photos recommended by WomenAgainstRevengePorn.com, which has been successful in a number of cases (including as described in this particularly fascinating account), is for the victim to take advantage of U.S. copyright law. Under U.S. copyright law, a person who takes a nude photo of herself or himself is the owner of the copyright in that photo and thus can enjoin others from reproducing or displaying the photo. A victim may, therefore, submit a “takedown” notice under Section 512 of the Digital Millennium Copyright Act (DMCA) to the webmasters and web hosts of the offending sites as well as to search engine sites where the nude photo may come up as a search result (Google even provides step-by-step instructions). Because the DMCA provides an infringement safe harbor to web service providers who comply with the statute’s requirements, many search engines and web hosts will remove revenge porn photos upon receipt of a takedown notice. If the photo is not removed, the victim may consider registering his or her copyrights in the photos and suing the web host or search engine in federal court, although this may not always be a desirable approach for the reasons described below.
Using copyright law to fight revenge porn, while effective to an extent, is not without problems, including the following:
- It only works if the victim owns the copyright. While many revenge porn photos are taken by the victim himself or herself and then posted without his or her consent, this is not always the case. In situations where another person took the photo –e.g., if the victim’s girlfriend or boyfriend took it, or if the photo was taken secretly without the victim’s consent–the victim would not be the copyright owner and thus could not use copyright law to force removal.
- Website operators may reject copyright infringement claims and refuse to remove the offending photos. Although a victim could move forward with litigation to obtain an injunction and possibly monetary damages, revenge porn operators are often confident that (a) the costs of litigation are too expensive for many revenge porn victims and (b) many revenge porn victims fear making their situations even more public by bringing suit. To mitigate the risk of such increased exposure, victims can attempt to bring suit pseudonymously, and there are resources on the Internet devoted to assisting with this.
- Even if a website operator removes the photos of one victim who follows all of the necessary steps to enforce his or her copyright, the website will still display photos of hundreds, if not thousands of other victims.
Thus, copyright law is not always enough to effectively combat revenge porn.
Defamation, Privacy and Other Related Laws
Several victims of revenge porn, as well as people who have had other personal information of a sexual or otherwise inappropriate nature published on revenge porn websites, have launched civil lawsuits under theories such as defamation, invasion of privacy, and identity theft. As we have reported previously, one high profile example of this came in July 2013, when a federal judge in Kentucky allowed a defamation lawsuit against the operator of a site called TheDirty.com to proceed and a jury awarded the victim (about whom the site had published false accounts of her sexual history) $338,000.
Prosecutors have also taken advantage of the fact that the operators of these sites often engage in criminal activity in order to obtain and capitalize on nude photos. On January 23, 2014, Hunter Moore, known by some as the “most hated man on the Internet” and probably the most famous and successful revenge pornographer to date, was arrested on charges of illegally accessing personal email accounts in order to obtain photos for his revenge porn site. Further, California Attorney General Kamala Harris recently announced the arrest of a revenge porn site operator for 31 accounts of conspiracy, identify theft and extortion based on the unauthorized posting of nude photos. Depending on the outcome of these cases and civil cases such as that against TheDirty.com (and their inevitable appeals), revenge porn victims may soon have additional avenues of legal recourse.
The most commonly used defense of website operators against charges like those discussed above is 47 U.S. Code § 230(c)(1), the provision of the Communications Decency Act of 1996 (CDA) that states: “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Revenge porn website operators have cited this statutory provision to argue that they are not responsible for the images they host if the content was provided by other users. However, § 230 might not provide a defense in all cases. First, § 230 does not grant a website operator immunity from federal criminal laws, intellectual property laws or communications privacy laws (such as the laws that Hunter Moore allegedly violated). For example, if a website operator uses a photo of a victim submitted by a third party to extort money from the victim, § 230 would not provide any defense. Second, § 230 may not protect a website operator if the site contributes to the creation of the offending content. In the case against TheDirty.com referenced above, the court rejected the operator’s § 230 defense, pointing out that the operator, who edited and added commentary to the submitted offending content, “did far more than just allow postings by others or engage in editorial or self-regulatory functions.” It is noteworthy, however, that the website operator of TheDirty.com has filed an appeal in the Sixth Circuit and that TheDirty.com did prevail in a 2012 case based on similar facts).
State Anti-Revenge Porn Laws
Another approach to deterring website operators from posting unauthorized nude photos is passing laws that criminalize that specific activity. As of today, only two states, New Jersey and California, have such laws. These laws are fairly limited in scope in order to pass constitutional muster under the First Amendment. California’s law, enacted on October 1, 2013, is subject to a number of limitations. For example, it does not cover photos taken by the victim himself or herself, it does not apply if a third party obtains the photos through hacking, and a website operator can only be prosecuted if the state can prove that the operator intended to cause emotional distress. Further, the penalties under this law are relatively minor: distribution of unauthorized nude images or videos is a misdemeanor, with convicted perpetrators facing six months in jail and a $1000 fine. Nonetheless, free speech advocates, including the Electronic Frontier Foundation (EFF), have criticized the law, stating that it is overly broad, criminalizes innocent behavior, and violates free speech rights.
Despite broad objections against anti-revenge porn laws from the EFF and various other free speech advocates, legislatures in several other states, including New York, Rhode Island, Maryland and Virginia, have introduced laws that would criminalize operation of revenge porn websites. There is also discussion about enacting a federal anti-revenge porn statute. Whether these laws will be enacted, and the extent to which prosecutors will actually invoke these laws if they are passed, remains uncertain. But such laws could become powerful weapons in the fight to eliminate revenge porn.
As revenge porn is a worldwide phenomenon, jurisdictions outside the U.S. have also passed laws aimed at punishing the practice. For example, a law criminalizing non-consensual distribution of nude photographs of other people was passed in the Australian state of Victoria in December 2013. And, in January 2014, the Israeli parliament passed a law that criminalizes revenge porn, punishing website operators who publish unauthorized photos or videos of a sexual nature with up to five years in prison.
As long as people fall in (or out of) love (or lust) and cameras and the Internet exist, the proliferation of revenge porn websites will remain a troubling issue. As discussed above, however, the law does provide at least some recourse to the victims of revenge porn.
The Supreme Court’s 1968 decision in Pickering v. Board of Education allows governmental employers, including law enforcement agencies, to fire or discipline employees for disrupting operations with excessive complaining, but it prohibits governmental employers from firing or disciplining an employee for speaking out on matters of public concern as a private citizen if the employee’s interest in speaking outweighs the agency’s interest in maintaining efficiency. While the line between disruptively complaining and responsibly speaking out may be clear enough in theory, however, it is often difficult to draw in practice, particularly when the employees in question work in law enforcement. The most recent case to dive into this thicket is Graziosi v. City of Greenville, from the Northern District of Mississippi.
We previously discussed the First Amendment rights of law enforcement personnel in connection with the Eleventh Circuit case Gresham v. City of Atlanta. In Gresham, the plaintiff was passed over for a promotion after making a Facebook post critical of what she saw as obstruction of justice by a fellow officer. The court held that the plaintiff had spoken on a matter of public concern, but that her interest in speaking did not outweigh the government’s interest in promoting efficiency. The key point was that the plaintiff had configured her Facebook post to be viewable only by her friends, which indicated that her post was not “calculated to bring an issue of public concern to the attention of persons with authority to make corrections . . . the context was more nearly one of Plaintiff’s venting her frustration with her superiors.”
The decision in Graziosi deals with the same elusive line between mere complaining on the one hand, and alerting the public to important information about the operations of government agencies on the other. A member of the Greenville Police Department, Sergeant Graziosi, made a series of public Facebook posts criticizing the chief of police for failing to send a representative to the funeral of a fellow officer. Graziosi posted these complaints first as her own Facebook status update, and then posted them on the campaign page of the local mayor. The chief of police fired Graziosi for making the posts, which the chief of police contended violated several internal police department policies that forbid public criticism and excessive complaining by officers. Graziosi filed a lawsuit alleging that her termination violated the First Amendment.
One pivotal issue in the case was whether the criticisms Graziosi posted on Facebook qualified as speaking out on a matter of public concern as a private citizen. Graziosi argued that a decision about whether or not to send police officers to a funeral is inherently a matter of public concern because it involves the spending of public funds. However, the court noted that if anything that involved spending funds was a matter of public concern, then “almost anything” would satisfy that requirement of the Pickering test. Instead, the court looked to the primary motivation for speaking. The court determined that “Graziosi’s comments to the Mayor, although on a sensitive subject, were more related to her own frustration of Chief Cannon’s decision not to send officers to the funeral and were not made to expose unlawful conduct within the Greenville Police Department. Her posts were not intended to help the public actually evaluate the performance of the GPD.” The court found that Graziosi was speaking out about a matter that was primarily internal to the police department, and hence, she was speaking not as a citizen, but as an employee, and not on a matter of public concern, but on a matter of personal concern. Therefore, her comments did not pass the threshold requirement of the Pickering test.
This decision is similar to the decision in Gresham, but differs in important ways. In both cases, the complaints that a law enforcement officer posted on Facebook were denied First Amendment protection because those complaints were more fairly described as venting frustrations than as attempts to get important information to the public. In both cases, the court found that although the topic of the speech was of at least some concern to the public, the speaker was primarily motivated by a desire to vent frustration. In Gresham, the court made this determination by considering the audience that the plaintiff spoke to; in Graziosi, the court made this determination by considering what the plaintiff spoke about. However, the courts applied the determination that the speaker was motivated primarily by a desire to vent at different steps in the analysis. In Gresham, the court found that the plaintiff’s interest in complaining was less weighty than the interest of the police department in preserving efficiency. However, in Graziosi, the court found that the plaintiff’s primary purpose of venting personal grievances defeated her claim before the weighing stage was even reached. Because the plaintiff’s intent was primarily to vent frustration, she was not speaking as a private citizen or speaking on a matter of public concern, and hence would not have been eligible for First Amendment protection even if her interest had outweighed the interest of the police department.
Viewed in the light of recent high profile situations involving governmental employees speaking out about matters of public concern contrary to applicable governmental policies, such as the leaks by Edward Snowden and Chelsea (formerly Bradley) Manning, clarifying the rules in this area is more important than ever. And the fact that so much of the relevant communication now takes place in the diverse and always-changing world of social media only increases the complexity of the issues. As a result, we can expect that the courts will continue to develop the law in this area for many years, but the outline of how the First Amendment applies to governmental employees using social media is at least beginning to take shape.
Two recent U.S. appellate court decisions have clarified the extent to which the First Amendment protects the social media activities of government employees. In Gresham v. City of Atlanta, the Court of Appeals for the Eleventh Circuit found that an individual’s First Amendment interest in posting to Facebook is reduced when he or she configures such post to be private, while in Bland v. Roberts, the Court of Appeals for the Fourth Circuit held that Facebook “likes” constitute protected speech under the First Amendment. Although both decisions deal with the rights of government employees in particular, the decisions have relevance beyond government employees.
U.S. courts have long held that the government has a greater interest in restricting the speech of its employees than it does in restricting the speech of the citizenry in general. However, the government’s ability to restrict the speech of its employees is limited by a test the U.S. Supreme Court outlined in Pickering v. Board of Education in 1968. The test requires that, in order for the employee to maintain a successful First Amendment claim against his or her governmental employer, the employee must, among other things, show that he or she was speaking about a matter of public concern, and that his or her interest in doing so outweighs the government’s interest in providing effective and efficient service to the public.
First Amendment protection for “likes”: Bland v. Roberts. In August of 2012, we discussed the decision of a District Court in Virginia that a government employee “liking” a Facebook page was insufficient speech to merit constitutional protection. Deputies of the Hampton Sheriff’s Office alleged that they were terminated because they “liked” the campaign page of a candidate running against their boss, the current sheriff. While much of the suit dealt with the current sheriff’s claim to qualified immunity and whether or not the deputies held policymaking positions which can be staffed based on political allegiances, the court also dismissed the deputies’ contention that their termination violated their First Amendment right to speak out on a matter of public concern. The court held that merely “liking” a page “is not the kind of substantive statement that has previously warranted constitutional protection.” The decision stirred considerable controversy and debate among constitutional scholars and within the social media industry.
On appeal, the Fourth Circuit overturned the lower court’s holding that Facebook “likes” are too insubstantial to merit First Amendment protection. The court held that “liking” a Facebook page is both pure speech and symbolic speech, and is protected by the First Amendment even with respect to government employees. The court found that the act of “liking” a Facebook page results in publishing a substantive position on a topic. The court reasons that “liking” a political candidate’s campaign page is “the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.” As a result, at least within the political context, “likes” enjoy the same strong First Amendment protection that other political speech does.
First Amendment protection for private posts: Gresham v. City of Atlanta. The interplay between social media and the First Amendment was also at issue in the Gresham case. In Gresham, an Atlanta police officer named Maria Gresham became concerned when a suspect she arrested was taken into a room alone by another officer who turned out to be the suspect’s aunt. The suspect gave some items to his aunt and they may have spoken. Officer Gresham felt that this constituted an inappropriate interference with her investigation and she aired her concerns by making a Facebook post which was only viewable by her friends. In Atlanta, departmental rules for the conduct of police officers prohibit publicly criticizing other officers. The department received a complaint that Gresham’s post had violated these rules and opened an investigation. As a result of that investigation, Gresham was passed over for a promotion. Gresham sued the city, asserting that the department had retaliated against her for engaging in protected First Amendment speech.
The District Court for the Northern District of Georgia found that Gresham’s First Amendment interest in making the post was outweighed by the City of Atlanta’s interest in maintaining good relations among its police officers. In weighing Gresham’s First Amendment interest in making the post, the District Court noted that “the ability of the citizenry to expose public corruption is one of the most important interests safeguarded by the First Amendment.” The District Court found that Facebook posts are protected under the First Amendment. It also found, however, that the officer’s decision to configure her Facebook post to be viewable only by her friends made “her interest in making the speech . . . less significant than if she had chosen a more public vehicle.”
On appeal, the Court of Appeals for the Eleventh Circuit upheld the District Court’s decision and expanded on the District Court’s reasoning, observing that “the context of Plaintiff’s speech is not one calculated to bring an issue of public concern to the attention of persons with authority to make corrections, nor was its context one of bringing the matter to the attention of the public to prompt public discussion to generate pressure for such changes.” Because her audience was small and poorly situated to act on the information she shared, the officer’s “speech interest is not a strong one.” The Court of Appeals agreed with the District Court that the government has a strong interest in maintaining good relations among police officers, and that this interest outweighed Gresham’s weak First Amendment interest in making the post. As a result, the City of Atlanta was found not to have violated Gresham’s First Amendment rights by restricting her speech.
The resulting rule for Gresham and her fellow officers may be somewhat counterintuitive: Atlanta police officers are effectively allowed to criticize one another very privately or very publicly, but the officers risk being disciplined if they criticize another officer in a somewhat public forum. A minor breach of the departmental policy against public criticism is more likely to carry consequences than a major breach is. That being said, the purpose underlying the Pickering rule is to ensure that crucial information reaches the public; making a post private undermines that purpose, so it reduces the protection the post receives under the Pickering rule.
In any event, with social media becoming more and more integrated into the daily fabric of our lives, one can assume that courts will be struggling with the intersection of free speech rights and social media usage for years to come.
2012 was a momentous year for social media law. We’ve combed through the court decisions, the legislative initiatives, the regulatory actions and the corporate trends to identify what we believe to be the ten most significant social media law developments of the past year–here they are, in no particular order:
Bland v. Roberts – A Facebook “like” is not constitutionally protected speech
Former employees of the Hampton Sheriff’s Office in Virginia who were fired by Sheriff B.J. Roberts, sued claiming they were fired for having supported an opposing candidate in a local election. Two of the plaintiffs had “liked” the opposing candidate’s Facebook page, which they claimed was an act of constitutionally protected speech. A federal district court in Virginia, however, ruled that a Facebook “like” “…is insufficient speech to merit constitutional protection”; according to the court, “liking” involves no actual statement, and constitutionally protected speech could not be inferred from “one click of a button.”
This case explored the increasingly-important intersection of free speech and social media, with the court finding that a “like” was insufficient to warrant constitutional protection. The decision has provoked much criticism, and it will be interesting to see whether other courts will follow the Bland court’s lead or take a different approach.
New York v. Harris – Twitter required to turn over user’s information and tweets
In early 2012, the New York City District Attorney’s Office subpoenaed Twitter to produce information and tweets related to the account of Malcolm Harris, an Occupy Wall Street protester who was arrested while protesting on the Brooklyn Bridge. Harris first sought to quash the subpoena, but the court denied the motion, finding that Harris had no proprietary interest in the tweets and therefore did not have standing to quash the subpoena. Twitter then filed a motion to quash, but the court also denied its motion, finding that Harris had no reasonable expectation of privacy in his tweets, and that, for the majority of the information sought, no search warrant was required.
This case set an important precedent for production of information related to social media accounts in criminal suits. Under the Harris court’s ruling, in certain circumstances, a criminal defendant has no ability to challenge a subpoena that seeks certain social media account information and posts.
The National Labor Relations Board (NLRB) issued its third guidance document on workplace social media policies
The NLRB issued guidance regarding its interpretation of the National Labor Relations Act (NLRA) and its application to employer social media policies. In its guidance document, the NLRB stated that certain types of provisions should not be included in social media policies, including: prohibitions on disclosure of confidential information where there are no carve-outs for discussion of an employer’s labor policies and its treatment of employees; prohibitions on disclosures of an individual’s personal information via social media where such prohibitions could be construed as limiting an employee’s ability to discuss wages and working conditions; discouragements of “friending” and sending unsolicited messages to one’s co-workers; and prohibitions on comments regarding pending legal matters to the degree such prohibitions might restrict employees from discussing potential claims against their employer.
The NLRB’s third guidance document illustrates the growing importance of social media policies in the workplace. With social media becoming an ever-increasing means of expression, employers must take care to craft social media policies that do not hinder their employees’ rights. If your company has not updated its social media policy in the past year, it is likely to be outdated.
In the Fteja case, a New York federal court held that a forum selection clause contained in Facebook’s Statement of Rights and Responsibilities (its “Terms”) was enforceable. Facebook sought to transfer a suit filed against it from a New York federal court to one in Northern California, citing the forum selection clause in the Terms. The court found that the plaintiff’s clicking of the “I accept” button when registering for Facebook constituted his assent to the Terms even though he may not have actually reviewed the Terms, which were made available via hyperlink during registration.
In the Skootle case, Twitter brought suit in the Northern District of California against various defendants for their spamming activities on Twitter’s service. One defendant, Garland Harris, who was a resident of Florida, brought a motion to dismiss, claiming lack of personal jurisdiction and improper venue. The court denied Harris’s motion, finding that the forum selection clause in Twitter’s terms of service applied. The court, however, specifically noted that it was not finding that forum selection clauses in “clickwrap” agreements are generally enforceable, but rather “only that on the allegations in this case, it is not unreasonable to enforce the clause here.”
Fteja and Skootle highlight that potentially burdensome provisions in online agreements may be enforceable even as to consumers; in both cases, a consumer seeking to pursue or defend a claim against a social media platform provider was required to do so in the provider’s forum. Both consumers and businesses need to be mindful of what they are agreeing to when signing up for online services.
Six states passed legislation regarding employers’ access to employee/applicant social media accounts
California, Delaware, Illinois, Maryland, Michigan and New Jersey enacted legislation that prohibits an employer from requesting or requiring an employee or applicant to disclose a user name or password for his or her personal social media account.
Such legislation will likely become more prevalent in 2013; Texas has a similar proposed bill, and California has a proposed bill that would expand its current protections for private employees to also include public employees.
Facebook goes public
Facebook raised over $16 billion in its initial public offering, which was one of the most highly anticipated IPOs in recent history and the largest tech IPO in U.S. history. Facebook’s peak share price during the first day of trading hit $45 per share, but with a rocky first few months fell to approximately $18—sparking shareholder lawsuits. By the end of 2012, however, Facebook had rebounded to over $26 per share.
Facebook’s IPO was not only a big event for Facebook and its investors, but also for other social media services and technology startups generally. Many viewed, and continue to view, Facebook’s success or failure as a bellwether for the viability of social media and technology startup valuations.
Employer-employee litigation over ownership of social media accounts
2012 saw the settlement of one case, and continued litigation in two other cases, all involving the ownership of business-related social media accounts maintained by current or former employees.
In the settled case of PhoneDog LLC v. Noah Kravitz, employer sued employee after the employee left the company but retained a Twitter account (and its 17,000 followers) that he had maintained while working for the employer. The terms of the settlement are confidential, but news reports indicated that the settlement allowed the employee to keep the account and its followers.
In two other pending cases, Eagle v. Edcomm and Maremont v. Susan Fredman Design Group LTD, social media accounts originally created by employees were later altered or used by the employer without the employees’ consent.
These cases are reminders that, with the growing prevalence of business-related social media, employers need to create clear policies regarding the treatment of work-related social media accounts.
California’s Attorney General went after companies whose mobile apps allegedly did not have adequate privacy policies
Privacy policies for mobile applications continue to become more important as the use of apps becomes more widespread. California’s OPPA has led the charge, but other states and the federal government may follow. In September, for instance, Representative Ed Markey of Massachusetts introduced The Mobile Device Privacy Act in the U.S. House of Representatives, which in some ways would have similar notice requirements as California’s OPPA.
Instagram’s changes to its Terms, and subsequent reversal, are reminders of how monetizing social media services is often a difficult balancing act. Although social media services need to figure out how they can be profitable, they also need to pay attention to their users’ concerns.
The defeat of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA)
Two bills, SOPA and PIPA—which were introduced in the U.S. House of Representatives and U.S. Senate, respectively, in late 2011—would have given additional tools to the U.S. Attorney General and intellectual property rights holders to combat online intellectual property infringement. A strong outcry, however, arose against the bills from various Internet, technology and social media companies. The opponents of the bills, who claimed the proposed legislation threatened free speech and innovation, engaged in various protests that included “blacking out” websites for a day. These protests ultimately resulted in the defeat of these bills in January 2012.
The opposition to and subsequent defeat of SOPA and PIPA demonstrated the power of Internet and social media services to shape the national debate and sway lawmakers. With prominent social media services such as Facebook, YouTube, Twitter, LinkedIn and Tumblr opposed to the bills, significant public and, ultimately, congressional opposition followed. Now that we’ve witnessed the power that these services wield when acting in unison, it will be interesting to see what issues unite them in the future.
In the latest issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we look at recent First Amendment, intellectual property, labor and privacy law developments affecting corporate users of social media and the Internet. We also recap major events from 2012 that have had a substantial impact on social media law, and we take a look at some of the big numbers racked up by social media companies over the past year.
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BitTorrent, the peer-to-peer (P2P) file-sharing system that enables the quick downloading of large files, has sparked another novel controversy stemming from copyright-infringement claims brought against its users. Users take advantage of the BitTorrent sharing system to anonymously access popular media such as books and movies. That anonymity is unlikely to last long for users who are alleged to have downloaded copyrighted material. Last month, Judge Sweet, a federal judge in the Southern District of New York (SDNY), held that an anonymous P2P user has no First Amendment right to quash a subpoena seeking her identity where the plaintiff had no other means to effectively identify the defendant.
In John Wiley & Sons Inc. v. Does Nos. 1-35, the plaintiff (Wiley), a publisher of books and journal articles, alleged that unidentified “John Does” used BitTorrent to illegally copy and distribute Wiley’s copyrighted works and infringe on Wiley’s trademarks. Wiley sued 35 defendants known only by their “John Doe Numbers” and Internet Protocol (IP) addresses. Seeking to identify the Does, Wiley moved for court-issued subpoenas to be served on various Internet service providers (ISPs), ordering them to supply identifying information corresponding to the Does’ IP addresses. In an attempt to maintain her anonymity and avoid liability, one of the 35 Does, then known only as John Doe No. 25 (“Doe 25”) or IP Address 220.127.116.11, moved to quash a subpoena served on her ISP, Time Warner Cable.
Wiley reflects a new wave of litigation in which copyright holders have shifted from suing host sites to focusing on individual users of P2P networks. The mere fact that copyrighted material is downloaded from a particular IP address may be insufficient to prove that the P2P network user is the infringer. An IP address typically provides only the location at which one of any number of devices may be used by any number of individuals (in fact, Doe No. 25 contended that her ex-husband, not she, downloaded the infringing works). If a motion to quash is granted, the account holder’s identity is not revealed, and the claim is effectively dead.
In considering whether to grant an anonymous account holder’s motion to quash a subpoena, courts balance the user’s First Amendment right to act anonymously with the plaintiff’s right to pursue its claims.
Anonymous users can rely on a line of precedent that extends the First Amendment’s protections to online expression. And under Rule 45 of the Federal Rules of Civil Procedure, a court must quash a subpoena if it requires disclosure of protected matter. Thus, to the extent that anonymity is protected by the First Amendment, courts will quash subpoenas designed to breach anonymity.
On the other hand, plaintiffs pursuing their claims can point to precedent holding that the First Amendment may not be used to encroach upon the intellectual property rights of others.
To balance these competing principles and determine whether certain actions trigger First Amendment protection, courts weigh the five factors set out in Sony Music Entertainment Inc. v. Does 1-40:
- whether the plaintiff has made a concrete showing of actionable harm;
- the specificity of the discovery request;
- the absence of alternative means by which to obtain the subpoenaed information;
- a central need for the data; and
- the party’s expectation of privacy.
In Wiley, each of these five factors weighed in favor of disclosure of the defendant’s identity. Wiley pled a sufficiently specific claim of copyright infringement, and, without a subpoena, Wiley would have no other effective way to identify potential infringers of Wiley’s intellectual property rights.
At least five other courts within the SDNY have denied motions to quash in similar litigations involving defendants accused of infringing Wiley’s copyrights via BitTorrent. Going forward, so long as copyright holders can satisfy the Sony five-factor test, they will be able to rely on cases like Wiley to ferret out copyright infringers.