Tag Archives: social media

When is it okay to use social media to make fun of people?

There is news from California that discusses a Facebook page called 530 Fatties that was created to collect photos of and poke fun at obese people. It’s a rude project, and sets the context for discussing some intriguing legal and normative issues.

Apparently the site collects photos that are taken in public. One generally doesn’t have a privacy interest in being photographed while in public places. And that seems pretty straightforward if you stop and think about it — you’re in public after all. But should technology change that legal analysis? Mobile devices with good cameras connected to high speed broadband networks make creation, sharing and shaming much easier than it used to be. A population equipped with these means essentially turns all public space into a panopticon. Does that mean the individual should be given more of something-like-privacy when in public? If you think that’s crazy, consider it in light of what Justice Sotomayor wrote in her concurrence in the 2012 case of U.S. v. Jones: “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables [one] to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

Apart from privacy harms, what else is at play here? For the same reasons that mobile cameras + social media jeopardizes traditional privacy assurances, the combination can magnify the emotional harms against a person. The public shaming that modern technology occasions can inflict deeper wounds because of the greater spatial and temporal characteristics of the medium. One can now easily distribute a photo or other content to countless individuals, and since the web means the end of forgetting, that content may be around for much longer than the typical human memory.

Against these concerns are the free speech interests of the speaking parties. In the U.S. especially, it’s hardwired into our sensibilities that each of us has great freedom to speak and otherwise express ourselves. The traditional First Amendment analysis will protect speech — even if it offends — unless there is something truly unlawful about it. For example, there is no free speech right to defame, to distribute obscene materials, or to use “fighting words.” Certain forms of harassment fall into the category of unprotected speech. How should we examine the role that technology plays in moving what would otherwise be playground-like bullying (like calling someone a fatty) to unlawful speech that can subject one to civil or even criminal liability? Is the impact that technology’s use makes even a valid issue to discuss?

Finally, we should examine the responsibility of the intermediaries here. A social media platform generally is going to be protected by the Communications Decency Act at 47 USC 230 from liability for third party content. But we should discuss the roles of the intermediary in terms other than pure legal ones. Many social media platforms are proactive in taking down otherwise lawful content that has the tendency to offend. The pervasiveness of social media underscores the power that these platforms have to shape normative values around what is appropriate behavior among individuals. This power is indeed potentially greater than any legal or governmental power to constrain the generation and distribution of content.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

Tweet served as evidence of initial interest confusion in trade dress case

The maker of KIND bars sued the maker of Clif bars alleging that the packaging of the Clif MOJO bar infringes the trade dress used for KIND bars. Plaintiff moved for a preliminary injunction, but the court denied the motion. But in its analysis, the court considered the relevance of a Twitter user’s impression of the products. Plaintiff submitted a tweet as evidence in which a the user wrote, “I was about to pick up one of those [Clif MOJO bars] because I thought it was a Kind Bar at the vitamin shop ….” The court found that this type of initial interest confusion was actionable and therefore the tweet supported plaintiff’s argument.

KIND LLC v. Clif Bar & Company, 2014 WL 2619817 (S.D.N.Y. June 12, 2014)

Evan Brown is an attorney in Chicago, advising clients on matters dealing with trademark protection and enforcement, technology, the internet and new media. Contact him.

Daughter’s Facebook post costs dad $80,000

A recent case illustrates why (1) it is important for parties to abide by the confidentiality provisions of settlement agreements, and (2) people who learn confidential information should keep their social media mouths shut.

Plaintiff sued his former employer (a private school) for age discrimination and retaliation. The parties later settled the case and entered an agreement containing the following provision:

13. Confidentiality … [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement … A breach … will result in disgorgement of the Plaintiffs portion of the settlement Payments.

After the parties signed the settlement agreement, plaintiff’s college-age daughter posted this on Facebook:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

facepalmDefendant school district refused to pay a portion of the settlement payments ($80,000), claiming plaintiff’s disclosure of the settlement to his daughter violated the confidentiality provision. Plaintiff asked the trial court to enforce the settlement agreement, which it did. Defendant sought review with the Court of Appeal of Florida. On appeal, the court agreed with the school and reversed.

The court found that “before the ink was dry on the [settlement] agreement, and notwithstanding the clear language of section 13 mandating confidentiality, [plaintiff] violated the agreement by doing exactly what he had promised not to do.” And his daughter “then did precisely what the confidentiality agreement was designed to prevent, advertising . . . that plaintiff had been successful in his age discrimination and retaliation case against the school.”

Gulliver Schools, Inc. v. Snay, — So.3d —, 2014 WL 769030 (Fla.App. 3 Dist. Feb 26, 2014)

Photo credit Flickr user haikus under this Creative Common license.

Co-founder liable for sending company’s social media followers to new competing company’s Facebook page

2261434057_87ddea278a_zThe owners of an LLC successfully published a magazine for several years, but the business declined and the company eventually filed bankruptcy. While the bankruptcy proceedings were still underway, one of the owners started up a new magazine publishing the same subject matter. He essentially took over the old company’s website to promote the new magazine. And he posted to the LLC’s Facebook page on three separate occasions, “reminding” those who liked the page to instead like his new company’s Facebook page.

The bankruptcy trustee began an adversary proceeding against the owner asserting, among other things, breach of fiduciary duty, unfair trade practices, and copyright infringement. The bankruptcy court held a trial on these claims and found the owner liable.

On the breach of fiduciary duty claim, the court equated the “reminding” of Facebook users to visit and like the new company’s Facebook page was equivalent to using the company’s confidential information. Similarly, as for the unfair trade practices claim (under the Louisiana Unfair Trade Practices Act), the court found that social media is “an important marketing tool,” and held that “taking away followers of [the old company] and diverting them to [the Facebook page of the new company]” was an unfair trade practice.

On the copyright infringement claim, the court found that the images and articles on the website belonged to the old company under the work made for hire doctrine and that the owner had not obtained consent nor paid compensation for their use in connection with the new enterprise.

In re Thundervision, L.L.C., 2014 WL 468224 (Bkrtcy.E.D.La. February 5, 2014)

Photo credit: Flickr user 1lenore under this Creative Commons license.

Police department did not violate First Amendment by demoting officer who posted Confederate flag on Facebook

Case illustrates the “frequent gamble” one makes when posting on social media.

When you hear about Georgia, the name Duke, dealing with the cops, and the Confederate flag, you think Hazzard County, right? Or better yet, Daisy Duke. This case had a number of those elements, but presented a much more serious free speech question than Bo or Luke could have ever done.

dukesPlaintiff (named Duke), a captain at Georgia’s Clayton State University police department, posted a picture of the Confederate flag to his Facebook account with the caption “It’s time for the second revolution.” He was not on duty when he posted it, nor did he intend it to be visible by everyone (just friends and family). He claimed that he wanted to “express his general dissatisfaction with Washington politicians.” At the time, the police department had no social media policy that would have prevented the post.

The chief of police demoted plaintiff and cut his pay by $15,000, stating that the Facebook post was inappropriate for someone in plaintiff’s position, and that officers should not espouse political views in public.

Plaintiff sued the police chief alleging, among other things, that his demotion over the Facebook post was a retaliation that violated his First Amendment rights. Defendant moved to dismiss. The court granted the motion.

It held that the police department’s legitimate interest in efficient public service outweighed plaintiff’s interest in speaking. The determination on this issue depended heavily on the content of the communication, and the fact that defendant was a police officer.

While the court acknowledged that plaintiff intended to express his disapproval of Washington politicians, it found that “on its face his speech could convey a drastically different message with different implications.” The court noted that order and favorable public perception were critical. “[A] police department is a ‘paramilitary organization, with a need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasi-military entity different from other public employers.’” And police departments have a particular interest in maintaining “a favorable reputation with the public.” In sum, the court found, the speech at issue was capable of impeding the government’s ability to perform its duties efficiently.

The fact that the post was made off-duty and just to friends and family did not dissuade the court from finding the demotion to be proper. A local television station picked up the story that plaintiff had made the post. The court noted that “this illustrates the very gamble individuals take in posting content on the Internet and the frequent lack of control one has over its further dissemination.”

Duke v. Hamil, 2014 WL 414222 (N.D.Ga. February 4, 2014)

Another court puts an end to a social media discovery fishing expedition

480px-Old_photo_of_woman_holding_a_fisherman_caught_fishPlaintiff sued a construction company and certain municipal authorities for negligence and loss of parental consortium after her toddler son was seriously injured in front of a construction site. Defendants sought broad discovery from plaintiff’s Facebook account, to which plaintiff objected in part. But the trial court required plaintiff to answer the discovery. So plaintiff sought review with the appellate court. On appeal, the court overturned the trial court.

It held that defendants’ discovery requests were overbroad and compelled the production of personal information that was not relevant to plaintiff’s claims.

Defendants had sought copies of postings on plaintiff’s Facebook account dealing with:

  • Any counseling or psychological care obtained by plaintiff before or after the accident
  • Relationships with [her injured son] or her other children, both prior to, and following, the accident
  • Relationships with all of plaintiff’s children, “boyfriends, husbands, and/or significant others,” both prior to, and following the accident
  • Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident
  • Any lawsuits filed after the accident by plaintiff

The court observed that one of the defendants’ arguments to the trial court essentially conceded it was on a fishing expedition. The attorney stated, “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” And the magistrate judge in the trial court (though ordering the discovery to be had) acknowledged that “95 percent, or 99 percent of this may not be relevant,” and expressed some misgivings at the possibility that large amounts of material might have to be reviewed in camera.

Finding that the trial court order departed “from the essential requirements of the law” because it was overbroad and required the production of irrelevant personal information, the court quashed the discovery requests.

Root v. Balfour Beatty Const. LLC, — So.3d —, 2014 WL 444005 (Fla.App. 2 Dist. February 5, 2014)

Judge who sent Facebook friend request to wife in pending divorce proceeding should have been disqualified

facebook-friend-request-446x298While a divorce case was pending, the judge overseeing the case sent the wife a Facebook friend request. The wife did not accept the request. Thereafter, the judge entered a final judgment that was more favorable to the husband. After the wife found out about other cases in which the judge had reached out to litigants through social media, she filed a motion to disqualify the judge. The judge refused to disqualify herself.

The wife sought review with the appellate court. On appeal, the court reversed and remanded, holding that the judge should have disqualified herself:

The “friend” request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the “friend” request.

Moreover, the court found the problem of friending a party in a pending case “of far more concern” than a judge’s Facebook friendship with a lawyer. Forbidding judges and counsel to be Facebook friends, especially in smaller counties with tight-knit legal communities, would be unworkable. But with a friend request from the judge, a party has a “well founded fear” of not receiving a fair and impartial trial.

Chace v. Loisel, — So.3d —, 2014 WL 258620 (Fla.App. 5 Dist. January 24, 2014)

Bullied student did not have to hand over all of his social media content in lawsuit against school district

A student sued the school district in which he attended high school for failing to protect him against bullying. The school district served discovery requests on the student seeking electronic copies of everything he did on social media during the time period of the alleged bullying. When the student refused to produce all of his social media content, the school district moved to compel.

picardThe court held that the student did not have to produce all of his social media content, but had to produce any materials that revealed, referred, or related to any “emotion, feeling, or mental state.” The court looked to the case of E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D.Ind.2010) to find that the mere fact that the student had social communications was not probative of any mental or emotional state. Rather, the school district would be entitled to discover whatever communications were relevant to the claims or defenses in the matter.

In the social media discovery context, this meant something less than the student’s entire social media history:

To be sure, anything that a person says or does might in some theoretical sense be reflective of her emotional state. But that is hardly a justification for requiring the production of every thought she may have reduced to writing or, indeed, the deposition of everyone she may have talked to.

Despite this attempt by the court at limitation, one is left to wonder whether the scope of the court’s order — requiring production of materials that revealed, referred, or related to any “emotion, feeling, or mental state” — is so vague as to be of no real help. Scarcely anyone’s casual social media content (let alone the content of the typical teenager) contains material that is void of emotion, feeling or mental state. Tweets, comments, status updates and wall postings drip with pride, humor, loneliness, angst, and the rest of the spectrum of human sentiment.

D.O.H. ex rel. Haddad v. Lake Central School Corp., 2014 WL 174675 (N.D.Ind. January 15, 2014)

Related: Plaintiff has to turn over emotional social media content in employment lawsuit

Evan Brown is a Chicago attorney helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, software licensing and many other matters involving the internet and new media. Call him at (630) 362-7237 or email ebrown@internetcases.com

Judge who was Facebook friends with victim’s father did not have to recuse himself

Case provides valuable guidance to judges on how to responsibly handle social media connections and communications.

Judge sent defendant to prison for assaulting defendant’s girlfriend. Defendant appealed his sentence claiming, among other things, that the judge was not impartial, given that the judge was Facebook friends with the girlfriend-victim’s father, and that the two of them had communicated through Facebook’s private message feature. The appellate court held that the judge did not err by not recusing himself.

The appellate court found that no rule prohibited the judge from being Facebook friends with the victim’s father. And the judge followed the proper procedure concerning the private message by:

  • discontinuing reading it once he realized it pertained to the case
  • warning the victim’s father not to communicate ex parte in that manner
  • printing the message out and placing it in the case file
  • notifying counsel for the parties

Moreover, the private message was not adverse to defendant, but actually asked for leniency. On these facts, the court found an insufficient showing of bias to find reversible error.

Youkers v. State, — S.W.3d —, 2013 WL 2077196 (Tex.App. May 15, 2013)

Court considers Yelp posting as evidence of potential consumer confusion in trademark case

Posting by confused consumer was not hearsay.

You Fit, Inc. v. Pleasanton Fitness, LLC, 2013 WL 521784 (M.D.Fla. February 11, 2013)

In a trademark case between competing health clubs, the court considered a Yelp posting in entering a preliminary injunction, finding that while the anonymous posts were not conclusive evidence of actual confusion, they were indicative of potential consumer confusion.

The dispute centered over the use of “You Fit” and “Fit U” for health clubs. A Yelp user posted the following:

I am soo [sic] confused. I was a member at Youfit in [Arizona] and when I moved back to [California] I saw this place by my house and thought great my gym is here! When I went into the gym, I realized it was called Fit U. They use the same basic color scheme on their sign and the motto seemed the same. When I asked the girl at the desk, … [she] said her owner created this brand. I said what are you [ sic ] rates? Seemed very similar to me as when I was a member at Youfit. Very confusing and a big let down.

The court rejected defendant’s hearsay argument. It noted that affidavits and hearsay materials which would not be admissible evidence for a permanent injunction may be considered if the evidence is appropriate given the character and objectives of the injunctive proceeding. With no analysis as to why, the court found the Yelp posting appropriate to consider at this stage of the case.

Moreover, the court observed in a footnote that the Yelp post was not hearsay to begin with. It was not being offered to prove the truth of the matter asserted, but to demonstrate the consumer’s confusion — a then-existing mental state of the declarant, which is an exception to the hearsay rule. This is an interesting finding. The hearsay and non-hearsay uses of the post both turn on the same content, particularly the statement “I am soo [sic] confused.” That statement is the matter asserted (and in such capacity, excludable hearsay). And it is also the mindset of the declarant (and in such capacity, subject to an exception to the hearsay rule).

The court’s opinion does not address what one might see as the real problem with the Yelp evidence — its authenticity. Perhaps the parties did not bring that up. But one does not have to venture far in imagination to see how a crafty plaintiff could generate, or direct the generation, of self-serving social media content that would be helpful as evidence in a litigated matter.

See also: Customer reviews on social media provide important evidence in trademark dispute