• Bad chords. A European musician’s attempt to stop a negative concert review from continuing to appear in Internet search results is raising questions about whether the EU’s “right to be forgotten” ruling could prevent the Internet from being a source of objective truth.  Established in May by the European Court of Justice, the right to be forgotten ruling requires search engines like Google to remove “inadequate, irrelevant or… excessive” links that appear as a result of searches of an EC member’s name. Pursuant to the ruling, European pianist Dejan Lazic asked the Washington Post to remove a tepid review of one of his Kennedy Center concerts from Google search results. Lazic’s request was denied because it was posed to the wrong party—the right to be forgotten ruling applies to Internet search engines, not publishers—but it nevertheless serves as an example of a request that could be granted under the right to be forgotten rule, and that, argues Washington Post Internet culture columnist Caitlin Dewey, is “terrifying.” Dewey writes that such a result “torpedoes the very foundation of arts criticism… essentially invalidates the primary function of journalism,” and “undermines the greatest power of the Web as a record and a clearinghouse for our vast intellectual output.”
  • A tall tale. The FBI has admitted to fabricating an Associated Press story and sending its link to the MySpace page of a high-school-bombing-threat suspect in 2007 to lure him into downloading malware that revealed his location and Internet Protocol address. Agents arrested the suspect, a 15-year-old Seattle-area boy, within days of learning his whereabouts as the result of the malware, which downloaded automatically when the suspect clicked the link to a fabricated story bearing the headline “Technology savvy student holds Timberline High School hostage.” Civil libertarians are concerned about the FBI’s impersonation of news organizations to send malware to suspects, and an AP spokesman said the organization finds it “unacceptable that the FBI misappropriated the name of The Associated Press and published a false story attributed to AP.”
  • Suspicious expulsions. An Alabama school district recently expelled more than a dozen students after a review of their social media accounts revealed signs of gang involvement or gun possession. The investigation into the students’ social media accounts was conducted by a former FBI agent whom the school district had hired for $157,000 as a security consultant. Since 12 of the 14 expelled students were African-American, a county commissioner accused the investigation of  “effectively targeting or profiling black children in terms of behavior and behavioral issues.”

In a little-noticed decision, Matter of Noel v. Maria, Support Magistrate Gregory L. Gliedman—a Staten Island, New York family court official—recently permitted a father seeking to modify his child support payments to serve process on the child’s mother by sending her a digital copy of the summons and petition through her Facebook account.

Magistrate Gliedman’s decision struck us at Socially Aware—where we follow such developments closely—as a groundbreaking move. We are unaware of any published U.S. court opinion permitting a plaintiff to serve process on a domestic, U.S.-based defendant through a Facebook account.

As we addressed in a 2012 Socially Aware blog post, in Fortunato v. Chase Bank a federal district court in Manhattan held that Chase Bank could not rely on Facebook to serve a third-party defendant.

While the same federal district court subsequently allowed the FTC to serve defendants through Facebook in FTC v. PCCare247, the service at issue in that case concerned documents other than the summons and complaint, and the defendants were two India-based entities and three India-based individuals who had already appeared through counsel and shown themselves to be on notice of the lawsuit.

Other cases authorizing service via social media have been similarly limited in scope. For example, in WhosHere v. Orun, the U.S. District Court for the Eastern District of Virginia allowed service via social media on a defendant who allegedly resided in Turkey. In Mpafe v. Mpafe, a Minnesota family court authorized the service of divorce proceedings on a defendant by “Facebook, Myspace or any other social networking site” where the defendant was believed to have left the country.

Continue Reading New York Family Court Magistrate Allows Unprecedented Service of Process via Facebook; Will Others Follow?

Facebook’s Motion to Dismiss Denied
A federal court in Texas denied Facebook’s motion to dismiss or transfer to California a declaratory judgment suit filed by Lamebook, a self-described parody website that Facebook asserts is infringing its trademarks.

New Jersey Supreme Court on Defamatory Comments
The New Jersey Supreme court held recently that a person who posted allegedly defamatory comments on an Internet message board cannot invoke the protections of New Jersey’s news media shield statute.

Myspace Threats
According to the Virginia Court of Appeals, a defendant’s posting of threatening lyrics on his ex girlfriend’s MySpace page constituted communication of a written threat within the meaning of Virginia Code § 18.2-60(a)(1).

Privacy Policies Survey
In a recent survey, 31% of respondents claimed to have read all of the privacy policies of the websites they used.  Even though we draft website privacy policies for a living, and would like to believe that such policies are widely read, the 31% figure seems high to us.

Google Buzz Class Action
As Google rolls out its new Google+ social networking service, a federal judge issued final approval of the $8.5 million settlement in a class action suit brought by Gmail users who alleged that Google exposed their personal information without authorization through “Google Buzz,” the search giant’s previous foray into social networking.

Facebook Facial Recognition Violates German Law?
Facebook’s new facial recognition feature has sparked objections from a German data protection agency, which claims that it violates German data protection laws.

New Lawyers in Facebook Suit
Paul Ceglia, the man suing for a 50% stake in Facebook, apparently needs new lawyers.

Twitter Co-founders Solving Big Problems
Reports are that Twitter co-founders Biz Stone and Evan Williams have stepped back their involvement in the microblogging service and will be starting a new venture.  The Obvious Corp. has set itself an ambitious program of “solving big problems” and helping develop systems that “improve the world,” according to Stone’s blog.

Reward Points for For Facebook Ads
American Express cardholders can now use their rewards points to buy ads on Facebook.

Justin Timberlake buys MySpace
Remember when you switched from Friendster to MySpace because MySpace was the hot new thing in social networking? Well, Rupert Murdoch’s News Corp. recently sold the former hot new thing to a group formed by Justin Timberlake and a California-based digital advertising agency for $35 million, just 6% of the $580 million that News Corp. paid for the company in 2005.

LinkedIn Take Number Two Spot
In what may be a related development, it has been reported that LinkedIn has overtaken MySpace to become the second most visited social networking site in the U.S. after Facebook (and Twitter is not far behind).

Facebook Declining Traffic
Of course, even the mighty Facebook may not be completely immune from declining traffic:  a number of media outlets reported that Facebook lost users in the U.S. and Canada in May 2011.  Facebook issued a statement that the reports are inaccurate.

Isn’t It Ironic
Apparently Facebook CEO Mark Zuckerberg is the most followed user on Google’s new “Google+” social networking service.  Google bigwigs Larry Page and Sergey Brin are a relatively distant second and fourth, respectively.

Don’t Post Facebook Threats in Minnesota
The Minnesota Court of Appeals has held that a college student’s threatening Facebook posts substantially disrupted activities at the school and, therefore, the school’s imposition of disciplinary sanctions did not violate the student’s First Amendment rights.

350 Billion Tweets Each Day
Twitter, founded just five years ago, reached a new milestone:  the micro-blogging service reports that it now delivers 350 billion tweets each day.  Twitter also announced that a new tweets per second (or “TPS” as we say in the biz) record had been set, with 7,196 TPS at the end of the Women’s World Cup soccer game.

Google + Users
Not to be outdone in the social media statistic game, Google’s recently-launched Google+ service reportedly hit the 25 million user mark just a month after its launch, and may be on track to sign up 22 percent of online adults in the U.S. within a year, which would make Google+ the second- most-used social networking site after Facebook.

Don’t Violate Google +’s Terms of Use
In other Google+ news, some outlets are reporting that users who violate the Google+ terms of use may find themselves barred not only from Google+ itself, but also from other Google services such as the search giant’s Gmail email service.

Nirvana and Facebook’s Rules on Nudity
Speaking of terms of use violations, the rock band Nirvana recently had images of its classic album “Nevermind” (which, incidentally, is celebrating its 20th anniversary this fall—feel old yet?) yanked by Facebook because the iconic cover image of a naked baby boy floating in the pool ran afoul of Facebook’s rules regarding photos that include nudity.

Shatner Shut Down on Google+
Actor William Shatner, however, had better luck with his Google+ account, despite being temporarily shut down for “violating standards.” Shatner tweeted that he did not know what rules he had violated, writing, “Saying hello to everyone apparently is against the rules.”  His Google+ account was up and running later that same day.

Although common law generally holds publishers responsible for the content that they publish, the Communications Decency Act (“CDA”) gives website operators broad protection from liability for content posted by users.  Courts have applied the CDA in favor of website owners in nearly 200 cases, including cases involving Google, Facebook, MySpace, and even bloggers for content posted by their co-bloggers.  Commentators hail the CDA as the legal framework that made possible the rise of social media.  CDA immunity, however, is not limitless.  For example, as the Ninth Circuit explained in Fair Housing Council  of San Fernando Valley v. Roommates.com, where “a website helps to develop unlawful content,” it loses CDA immunity “if it contributes materially to the alleged illegality of the conduct.”  Two recent cases illustrate how websites can lose CDA immunity as a result of contributing to offending content.

The district court in Levitt v. Yelp considered business owners’ claims that Yelp manipulated Yelp pages, rankings, and reviews in an extortionate manner that violated California’s unfair business practices law.  Plaintiffs alleged that Yelp threatened to, and did, take down positive reviews if plaintiffs did not buy ads, and that Yelp’s salespeople manipulated rankings on Yelp.  The court first rejected Yelp’s jurisdictional argument that the CDA prevented the court from hearing the claims.  Second, the court held the CDA did not immunize Yelp because some of the claims focused on Yelp’s sales practices, and not merely Yelp’s editing or selective display of user reviews.  The court dismissed the plaintiffs’ claims anyway— finding that they had not pleaded sufficient facts to show extortion by Yelp—but it gave the plaintiffs leave to amend.

In Hill v. StubHub a North Carolina state court considered claims that StubHub violated state anti-scalping statutes.  The court rejected StubHub’s CDA defense because StubHub’s service suggested that users input particular prices for Miley Cyrus concert tickets, and profited when they did.  That StubHub suggested the illegal prices, monitored its inventory for particular events, and only made money if sufficient tickets were sold, and even then made a percentage of the ticket price, all meant StubHub “developed” the unlawful content:  a system where users scalped tickets.  The court explained that StubHub “encouraged, materially contributed to, and made aggressive use” of the pricing content posted by users, so StubHub could not avoid liability for it.

Together, the Yelp and StubHub cases show that CDA immunity, although critical for social media operators’ use of user-generated content, is not boundless.  Sites can lose CDA immunity by directing or contributing to offending content or as a result of the actions of their salespeople.