Protected Speech

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In a decision that has generated considerable controversy, a federal court in New York has held that the popular practice of embedding tweets into websites and blogs can result in copyright infringement. Plaintiff Justin Goldman had taken a photo of NFL quarterback Tom Brady, which Goldman posted to Snapchat. Snapchat users “screengrabbed” the image for use in tweets on Twitter. The defendants—nine news outlets—embedded tweets featuring the Goldman photo into online articles so that the photo itself was never hosted on the news outlets’ servers; rather, it was hosted on Twitter’s servers (a process known as “framing” or “inline linking”). The court found that, even absent any copying of the image onto their own servers, the news outlets’ actions had resulted in a violation of Goldman’s exclusive right to authorize the public display of his photo.

If legislation recently introduced in California passes, businesses with apps or websites requiring passwords and enabling Golden State residents younger than 18 to share content could be prohibited from asking those minors to agree to the site’s or the app’s terms and conditions of use.

After a lawyer was unable to serve process by delivering court documents to a defendant’s physical and email addresses, the Ontario Superior Court granted the lawyer permission to serve process by mailing a statement of claim to the defendant’s last known address and by sending the statement of claim through private messages to the defendant’s Instagram and LinkedIn accounts. This is reportedly the first time an Ontario court has permitted service of process through social media. The first instance that we at Socially Aware heard of a U.S. court permitting a plaintiff to serve process on a domestic, U.S.-based defendant through a social media account happened back in 2014.

Videos that impose celebrities’ and non-famous people’s faces onto porn performers’ to produce believable videos have surfaced on the Internet, and are on the verge of proliferating. Unlike the non-consensual dissemination of explicit photos that haven’t been manipulated—sometimes referred to as “revenge porn”—this fake porn is technically not a privacy issue, and making it illegal could raise First Amendment issues.

By mining datasets and social media to recover millions of dollars lost to tax fraud and errors, the IRS may be violating common law and the Electronic Communications Privacy Act, according to an op-ed piece in The Hill.

A woman is suing her ex-husband, a sheriff’s deputy in Georgia, for having her and her friend arrested and briefly jailed for posting on Facebook about his alleged refusal to drop off medication for his sick children on his way to work. The women had been charged with “criminal defamation of character” but the case was ultimately dropped after a state court judge ruled there was no basis for the arrest.

During a hearing in a Manhattan federal court over a suit brought by seven Twitter users who say President Trump blocked them on Twitter for having responded to his tweets, the plaintiffs’ lawyer compared Twitter to a “virtual town hall” where “blocking is a state action and violates the First Amendment.” An assistant district attorney, on the other hand, analogized the social media platform to a convention where the presiding official can decide whether or not to engage with someone. The district court judge who heard the arguments refused to decide the case on the spot and encouraged the parties to settle out of court.

Have your social media connections been posting headshots of themselves alongside historical portraits of people who look just like them? Those posts are the product of a Google app that matches the photo of a person’s face to a famous work of art, and the results can be fun. But not for people who live in Illinois or Texas, where access to the app isn’t available. Experts believe it’s because laws in those states restrict how companies can use biometric data.

The stock market is apparently keeping up with the Kardashians. A day after Kim Kardashian’s half-sister Kylie Jenner tweeted her frustration with Snapchat’s recent redesign, the company’s market value decreased by $1.3 billion.

CaptureThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award winning guide to the law and business of social media, we discuss the impact online trolls are having on social media marketing; we revisit whether hashtags should be afforded trademark protection; we explain how an unusual New Jersey law is disrupting the ecommerce industry and creating traps for the unwary; we explore legal and business implications of the Pokémon Go craze; we examine a recent federal court decision likely to affect application of the Video Privacy Protection Act to mobile apps; we discuss a class action suit against an app developer that highlights the legal risks of transitioning app customers from one business model to another; and we describe how Europe’s Right to Be Forgotten has spread to Asia.

All this—plus infographics illustrating the enormous popularity of Pokémon Go and the unfortunate prevalence of online trolling.

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Facebook Messenger joins the elite “one billion monthly users” club just four years after its release as a standalone app.

A Canadian judge ordered a couple convicted of child neglect to post to all their social media accounts his decision describing their crime.

Leslie Jones of Ghostbusters highlights Twitter’s trolling problem. One tech columnist says the platform needs to rethink its application programming interface strategy to enable users and communities to insulate themselves from abuse.

Don’t drive and Facebook Live.

Google erased Dennis Cooper’s 14-year-old blog without warning or explanation. We recently examined the outcome of lawsuits challenging a platform’s right to remove user content (spoiler alert: the platforms usually win).

Twitter now lets anyone apply to get verified.

Researchers say there’s a correlation between an increase in the psychological stress that teens suffer and the amount of time they’re spending on social media.

A Playboy model who “fat-shamed” a woman by photographing her and posting it to Snapchat risks prosecution.

Forensic psychologists explain why people post evidence of their crimes to social media.

We may soon have a federal law making revenge porn illegal. Our blog post from 2014 took a look at some of the legal issues raised by revenge porn.

There’s now a dating app that sets people up on Pokémon Go dates. Want to know more about the most popular mobile game of all time? Read our Pokémon Go Business and Legal Primer.

Facebook signs more than $50 million worth of deals with media firms and celebrities to create videos for its live-streaming service.

Tumblr is jumping on the live video bandwagon, too—but via live-streaming platform partners, not through its own service.

C-Span picked up live feeds of the Democratic sit-in over gun-control legislation that representatives shot on Periscope, Facebook Live and other social platforms.

Twitter will now let you see when tweets are from a specific place, like a business, sports stadium, or music festival.

Is Snapchat on its way to becoming the first “social augmented reality platform”?

An Orlando prosecutor was fired for posting offensive statements about the city on social media shortly after the Pulse nightclub shooting.

A guy in Australia faces three years in jail for “criminal trolling.”

After a judge running for re-election commented on a case he was presiding over on his campaign page on Facebook, the New Mexico Supreme Court issued guidance for judges on social media use.

Social Times explains why Lego’s social media marketing efforts are worth emulating.

Twitter launched a standalone app designed to help famous people interact with their fans and build a bigger following.

Speaking of celebrities, here’s a list of seven movie stars who refuse to participate in social media.

The Great Instagram Logo Freakout of 2016.

A UK council policy reportedly grants its members power to spy on residents by setting up fake Facebook profiles.

Guess who spends more of their workday on social media, women or men?

Lessons from one of YouTube’s first (and most successful) stars.

Should sharing tragic images on social media be against the law?

A team of Google employees proposed adding new emojis to represent women in professional situations.

Has social media forced everyone to brand themselves?

Nearly 500 startup companies offer tech solutions for the legal industry.

Using social media to speed up organ donation.

Suicide on Periscope prompts France to open inquiry.

Now an online service helps people to prepare their “digital legacy.” Will the “social media assets after death” issue never die? (Sorry, we couldn’t resist.)

Study finds social media manipulation is the most common form of sextortion.

Defense lawyers who checked out the Facebook page of a plaintiff suing their client can be prosecuted for attorney misconduct, New Jersey judge rules.

Norwegian band changes its name to avoid “social media censorship.”

Can public agencies control their employees’ social media posts?

Google has complete discretion over whether or not to grant “right to be forgotten” requests. Some people question the sense of that.

This U.K. bar offers to save its customers from bad Tinder dates.

Why are boys at lower risk for the toxic effects of social media than girls?

New data indicates that choice of social channel, headlines and post length can maximize shares on social media.

Will the new Down to Lunch networking app continue to grow in popularity despite hitting some all-too-common social media snags?

The NYPD’s anti-encryption #UnlockJustice social media campaign fails. Big time.

These puppies earn HOW MUCH per Instagram post?! They’d better be in compliance with the FTC’s disclosure rules.

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65329935_thumbnail_smallEmployers took note last year when the National Labor Relations Board (NLRB) ruled that “liking” a Facebook post can qualify as protected activity under the National Labor Relations Act (NLRA). The NLRB held that the owner of a sports bar violated Section 7 of the NLRA by firing employees for a protected Facebook discussion criticizing the owner’s tax-withholding practices. An employee who referred to the owner as an “asshole” and another employee who merely “liked” the Facebook discussion were both engaged in protected activity, according to the NLRB.

Now the Second Circuit has affirmed the NLRB’s ruling. The Court rejected the argument that the employees’ Facebook discussion was unprotected because it amounted to uttering obscenities in the presence of customers. Accepting such an argument, wrote the Court, “could lead to the undesirable result of chilling virtually all employee speech online.”

The Court noted that almost all Facebook posts have the potential to be viewed by customers, but in this case the discussion was protected because it was not directed at customers and did not reflect the employer’s brand.

In addition, the employees’ Facebook activity did not lose protection simply because it contained obscenities viewed by customers, as such protection “accords with reality of modern-day social media use.”

The Second Circuit’s decision signals significant protection of employees’ social media communications, including a Facebook “like.” However, the Court refused to publish its summary order, despite urging from the NLRB, so the decision has no precedential effect.

Nonetheless, the takeaway is clear: “Like” it or not, employers should proceed with caution when considering whether to take action against employees for social media postings, even where obscenities are involved. Such is the reality of modern-day online speech.