The Law and Business of Social Media
September 30, 2015 - Cyberbullying, Privacy, Ethics, Litigation

Status Updates: Court nixes VPPA claim; lawyer suspended over blog posts; Facebook ‘unfriending’ cited in bullying decision

Tale of the tape. The Video Privacy Protection Act (VPPA), which requires video service providers to destroy personally identifiable information after a specified time, doesn’t provide a private right of action for plaintiffs whose information was retained beyond that period. So held the U.S. Court of Appeals for the Ninth Circuit in Rodriguez v. Sony, a case in which the plaintiff, Daniel Rodriguez, claimed that two Sony companies violated the act by retaining, beyond the act’s statutory limits, information relating to movies he had rented and purchased. Citing prior decisions by the Sixth Circuit and the Seventh Circuit, the court in Rodriguez held that the VPPA provides a private right of action only for prohibited disclosure of personal information, not for prohibited retention of personal information. Rodriguez did also claim that Sony had violated the disclosure provisions of the VPPA because the company “shared, sold, and/or transferred” his personal information to Sony Network after Sony Network “took over the [Playstation Network].” But the Ninth Circuit upheld the dismissal of this claim as well, holding that it fell within the VPPA’s exemption for disclosures “incident to the ordinary course of business.” The Rodriguez v. Sony opinion is the second time in two months that the Ninth Circuit dismissed a plaintiff’s attempt to recover under the VPPA. The last case affirmed a district court’s conclusion that Netflix did not violate the act by permitting certain disclosures about subscribers’ viewing history to subscribers’ family, friends and guests.

Discipline and punish. The Illinois Supreme Court has suspended for three years a Chicago attorney who wrote blog posts that, according to a report by the Illinois attorney disciplinary board that originally reviewed the matter in 2014, impugned “the integrity of certain judges, guardians ad litem and the lawyers involved in a case in the Probate Court of Cook County.” The lawyer/blogger, JoAnne Marie Denison, wrote the posts that landed her in hot water following her representation of a 90-year-old woman in guardianship proceedings. In 2014, the board concluded that Denison—whose posts referenced a “feeding frenzy” of lawyers, a “classic case of corruption” and a court “being spoonfed BS law by atty miscreants”—had violated several rules, including one that prohibits lawyers from making “a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer.” The board nevertheless didn’t conclude that Denison’s actions warranted disbarment, writing that she “genuinely, though unreasonably, believed something was wrong with the proceedings in the … case,” and did not seem to be motivated by self-interest. Arguing that the decision violated her First Amendment rights, Denison then appealed to a review board, which upheld her suspension. The Illinois Supreme Court finally cemented Denison’s suspension on September 21, 2015.

Why can’t we be friends? An Australian tribunal charged with employee dispute resolution cited a Tasmanian sales administrator’s decision to unfriend her colleague on Facebook in its finding that the sales administrator bullied her colleague, a real estate agent, in the workplace. The deputy president of the tribunal, Australia’s Fair Work Commission, said the act of unfriending was exemplary of a “lack of emotional maturity.” Legal experts interviewed by the Australian media emphasized that the sales administrator’s alienation of her colleague on Facebook was just one of many incidents of hostile behavior and that unfriending a colleague on Facebook does not, on its own, amount to workplace bullying. But they also said the decision was illustrative of the need for companies to have clear social media policies.