Tag Archives: social media

Facebook activity did not support claim that employee solicited former employer’s clients

Invidia, LLC v. DiFonzo, 2012 WL 5576406 (Mass.Super. October 22, 2012)

Defendant hairstylist signed an employment agreement with plaintiff that restricted her from soliciting any of plaintiff’s clients or customers for 2 years. Four days after she quit plaintiff’s salon, her new employer announced on Facebook that defendant had come on board as a stylist. One of defendant’s former clients left a comment to that post about looking forward to an upcoming appointment.

stylist

Either before or after she left plaintiff’s employ (the opinion is not clear about this), defendant had become Facebook friends with at least 8 of the customers she served while working for plaintiff.

Plaintiff sued for breach of contract and sought a preliminary injunction. The court denied the motion, in part because plaintiff failed to show evidence that defendant had violated the nonsolicitation provision.

The court found that it did not constitute solicitation of plaintiff’s customers to post a notice on Facebook that defendant was beginning work at a new salon. The court said it would have viewed it differently had plaintiff contacted a client to tell her that she was moving to a new salon, but there was no evidence of any such contact.

As for having clients as Facebook friends, the court noted that:

[O]ne can be Facebook friends with others without soliciting those friends to change hair salons, and [plaintiff] has presented no evidence of any communications, through Facebook or otherwise, in which [defendant] has suggested to these Facebook friends that they should take their business to her chair at [her new employer].

See also, TEKsystems, Inc. v. Hammernick.

Photo courtesy Flickr user planetc1 under this Creative Commons license

Court orders in camera review of injured plaintiff’s Facebook content

Richards v. Hertz Corp., — N.Y.S.2d —, 2012 WL 5503841 (N.Y.A.D. 2 Dept. November 14, 2012)

Plaintiff sued defendant for personal injury. Defendant saw a photo plaintiff had publicly posted on Facebook of herself skiing. When defendant requested plaintiff to turn over the rest of her Facebook content (presumably to find other like-pictures which would undermine plaintiff’s case), plaintiff sought a protective order. The trial court granted the motion for protective order, but required plaintiff to turn over every photo she had posted to Facebook of herself engaged in a “sporting activity”.

woman skiing

Defendants appealed the entry of the protective order. On review, the appellate court reversed and remanded, finding that defendants had made a showing that at least some of the discovery sought would result in the disclosure of relevant or potentially relevant evidence.

But due to the “likely presence” of private and irrelevant information in plaintiff’s account, the court ordered the information be turned over to the judge for an in camera review prior to disclosure to defendants.

Whether the plaintiff effectively preserved her Facebook account information may be an issue here. The facts go back to 2009. One is left to wonder whether and to what extent plaintiff has not gone back and deleted information from her account which would bear on the nature and extent of her injuries. It goes to show that social media discovery disputes can take on a number of nuances.

Photo courtesy Flickr user decafinata under this Creative Commons license.

Eighth Circuit rules against students’ free speech claim over offensive website

S.J.W. v. Lee’s Summit R-7 School District, No. 12-1727 (8th Cir. October 17, 2012)

Plaintiffs (twin brothers) created a blog that contained offensive, racist and sexually explicit content targeting their high school classmates by name. The school district suspended the brothers for 180 days. Plaintiffs got a preliminary injunction against the suspension, and the school district sought review with the Eighth Circuit. On appeal, the court reversed, and ordered that the suspension should not have been halted by the injunction.

students talking

The court held that under the Tinker analysis (Tinker is the leading case from the Supreme Court dealing with student free speech), the blog posts could reasonably have been expected to reach the school or impact the environment. Paired with the considerable disturbance and disruption at school because of the content, the court found that the lower court improperly held that the plaintiffs would have a successful First Amendment argument.

Moreover, the appellate court held that the plaintiffs had not shown irreparable harm from their suspension. They were able to enroll at another local accredited school, and the harm to their future music careers from not being able to try out for band was merely speculative.

Photo courtesy Flickr user davitydave under this Creative Commons license.

No Computer Fraud and Abuse Act violation for taking over former employee’s LinkedIn account

Eagle v. Morgan, 2012 WL 4739436 (E.D.Pa. October 4, 2012)

After plaintiff was fired as an executive, her former employer (using the password known by another employee) took over plaintiff’s LinkedIn account. It kept all of plaintiff’s contacts and recommendations but switched out plaintiff’s name and photo with those of the new CEO.

LinkedIn identity writ large

Plaintiff sued in federal court under the Computer Fraud and Abuse Act, the Lanham Act, and a slew of state law claims including identity theft, conversion and tortious interference. The former employer moved for summary judgment on the CFAA and Lanham Act claims. The court granted the motion, but continued to exercise supplemental jurisdiction over the state law claims.

On the CFAA claim, the court found that plaintiff failed to show how the taking over over her account gave rise to a cognizable loss under the CFAA. The kinds of losses she tried to prove, e.g., lost future business opportunities and professional reputation, did not pertain to any impairment or damage to a computer or computer system. Moreover, the court found, plaintiff failed to specify or quantify the damages she alleged.

As for the Lanham Act claim, the court found that there was no likelihood of confusion. It noted that “anyone who navigated to [plaintiff’s] LinkedIn account would be met with [the new CEO’s] name, photograph and new position.” Accordingly, there was no effort to “pass off” the new CEO as plaintiff or to otherwise suggest an endorsement or affiliation.

Though it dismissed all the federal claims, the court kept the pending state law claims. The matter had been before the court for over a year, the judge was familiar with the facts and the parties, and dismissing it so soon before trial would not have been fair.

Other coverage by Venkat.

Photo credit: Flickr user smi23le under this Creative Commons license.

Social media activity proved employee could be served with process

Clint Pharmaceuticals v. Northfield Urgent Care, LLC, 2012 WL 3792546 (Minn. App., September 4, 2012)

Appellant, a healthcare clinic organized as an LLC in Minnesota, got sued in Tennessee. It never showed up to defend itself, so the Tennessee court entered a default judgment against it. When the plaintiff sought to have the Tennessee judgment recognized in Minnesota, the clinic challenged the underlying lawsuit, claiming that the court in Tennessee did not have personal jurisdiction over the clinic, as it had not been properly served with the civil “warrant”.

these leaves are intertwined, just like the employee in this case was with the healthcare clinic

In this case, the court found that the clinic had been properly served because the papers were opened by the wife of the clinic’s owner. The court found she was “intertwined” with the clinic, and should have known what to do with the papers, based in part on the fact that she was “prominently displayed” on the clinic’s website and interacted with commenters on the clinic’s Facebook page.

Photo courtesy Flickr user jenny downing under this Creative Commons license.

Facebook caused wife to stab her husband

U.S. v. Mask, 2012 WL 3562034 (N.M.Ct.Crim.App., August 14, 2012)

No doubt Facebook use can be an enemy to marriage — see, for example, this recent article about how Facebook was named in a third of divorce filings in 2011. A recent case from the military courts shows how using Facebook can put a spouse’s very life in peril.

She is yelling and is very angry.

Defendant wife became angry when she accessed her husband’s Facebook account. An argument ensued between defendant and her husband about the content of husband’s Facebook page, which escalated and turned violent. The two struggled, with defendant yanking the modem out of the wall and striking husband. She continued to hit him, causing him to back into the kitchen, where defendant grabbed a knife and stabbed husband in the abdomen, saying, “that’s what you get, mother fucker.”

Husband survived, and wife was tried and convicted of attempted manslaughter. She sought review with the Navy–Marine Corps Court of Criminal Appeals. On appeal the court affirmed the conviction and five year sentence. It held the evidence at trial was sufficient to support the verdict, and that defendant’s Fifth Amendment rights had not been violated.

Photo courtesy Flickr user normalityrelief under this Creative Commons license.

Did a Facebook breakup cause a murder?

According to this news report, a man in Martinsville, Indiana allegedly shot the mother of his 14-month-old daughter after the woman broke up with him through Facebook. Though one should not jump to concluding that Facebook caused this murder, we are left to consider whether the nature of social media communications contributed to the alleged killer’s motivation.

public breakup

Breaking up is supposed to be a private event. Though we do not know the precise means the woman used to communicate the breakup (was it a private message or an IM, or was it more public like a status update or wall post?), one cannot help but notice the incongruity of using a social media platform to communicate a sensitive matter. Equally intriguing as the breakup is the man’s alleged apology in advance that he posted to Facebook before the murder.

Social media, just like any technology, gives us choices. Stories like this show how, in certain circumstances, human nature may not always be up to the task of making the right decisions when that process is affected by a novel context like the seemingly public context of Facebook.

Photo courtesy Flickr user Unlisted Sightings under this license.

Reading a non-friend’s comment on Facebook wall was not a privacy invasion

Sumien v. CareFlite, 2012 WL 2579525 (Tex.App. July 5, 2012)

Plaintiff, an emergency medical technician, got fired after he commented on his coworker’s Facebook status update. The coworker had complained in her post about belligerent patients and the use of restraints. Here is plaintiff’s comment:

Yeah like a boot to the head…. Seriously yeah restraints and actual HELP from [the police] instead of the norm.

After getting fired, plaintiff sued his former employer for, among other things, “intrusion upon seclusion” under Texas law. That tort requires a plaintiff to show (1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion or private affairs that (2) would be highly offensive to a reasonable person.

The trial court threw out the case on summary judgment. Plaintiff sought review with the Court of Appeals of Texas. On appeal, the court affirmed the summary judgment award.

The court found plaintiff failed to provide any evidence his former employer “intruded” when it encountered the offending comment. Plaintiff had presented evidence that he misunderstood his co-worker’s Facebook settings, did not know who had access to his co-worker’s Facebook Wall, and did not know how his employer was able to view the comment. But none of these misunderstandings of the plaintiff transformed the former employer’s viewing of the comment into an intentional tort.

Read Professor Goldman’s post on this case.


Photo credit: Flickr user H.L.I.T. under this license.

Social media angle on SCOTUS healthcare decision

I’ve seen three interesting social media issues arise in the hours following the Supreme Court’s decision this morning on Obamacare:

1. Premature enunciation and the ensuing bruhaha

In a rush to report on the extremely complex decision, CNN’s website briefly stated that the healthcare law had been overturned. [Screenshot] Folks on Twitter were quick to pounce, and it still seems to be kind of flying under the radar that FOX News’ side-scrolling ticker got it wrong too. The comparisons to Dewey Defeats Truman are obvious. The picture below by @garyhe captures this notion visually.

But there are a couple important differences in modern and social media versus the 1940s.

Because of the faster means to get the word out, there is even more pressure for a media outlet to be the first. (The same kind of pressure, felt by a humble blogger like me to be among the first to analyze the issues herein is making it difficult for me to type right.) And members of mainstream media are not just competing against other mainstream media participants. As @roncoleman tweeted, “[t]he central role of @SCOTUSblog in this discussion is the truly historical event occurring today.” (@SCOTUSblog’s coverage of the decision was driven largely by the work of 81-year-old Lyle Denniston.)

And it’s easy to forget that mistakes in reporting can easily be undone. Unlike the paper in the Dewey Defeats Truman situation, which had to literally stop the presses, reset the type, print out new stacks of papers and physically deliver them hours later, the CNN website was changed immediately with little human effort. And the fact that CNN got it wrong couldn’t have harmed anyone, given that there were millions of commentators on Twitter to instantly lampoon it, thereby drawing attention to the error.

2. It’s not just law professors who can be constitutional scholars

@jonathanwpeters observed the profundity of how the discourse on Twitter had become erudite by simply noting: “June 28, 2012: the day that “Commerce Clause” trended on Twitter.” But maybe that eruditeness is just a facade. @jbtaylor gives us a warning: “Brace yourself. Everyone on Twitter is about to become a Constitutional scholar.”

3. Everyone’s a comedian and all the world’s a comedy club

Probably the best part of the social media response to the decision is the humor. Here are a few of my favorite tweets that look at the farcical side of this:

  • “Remember when John Roberts botched the President’s swearing-in on Inauguration Day? I think they’re all good now.” (by @johnsberman)
  • “I felt a sudden disturbance in the Law, as if millions of nascent law review articles cried out, and were suddenly silenced.” (by @timhwang)
  • “Tea Party just turned into a massive kegger as the last spare change has gone to buy all the beer left in St. Louis ‪#wow‬ (by @mimizhusband)
  • “Now that that’s over who wants to grab a Coke and watch some porn” – Clarence Thomas (by @platypusjones)

Why be concerned with social media estate planning?

The headline of this recent blog post by the U.S. government promises to answer the question of why you should do some social media estate planning. But the post falls short of providing a compelling reason to plan for how your social media accounts and other digital assets should be handled in the event of your demise. So I’ve come up with my own list of reasons why this might be good both for the individual and for our culture:

Security. People commit identity theft on both the living and the dead. (See, for example, the story of the Tennessee woman who collected her dead aunt’s Social Security checks for 22 years.) While the living can run credit checks and otherwise monitor the use of their personal information, the deceased are not so diligent. Ensuring that the dataset comprising a person’s social media identity is accounted for and monitored should reduce the risk of that information being used nefariously.

Avoiding sad reminders. Spammers have no qualms with commandeering a dead person’s email account. As one Virginia family knows, putting a stop to that form of “harassment” can be painful and inconvenient.

Keeping social media uncluttered. This reason lies more in the public interest than in the interest of the deceased and his or her relatives. The advertising model for social media revenue generation relies on the accuracy and effectiveness of information about the user base. The presence of a bunch of dead peoples’ accounts, which are orphaned, so to speak, dilutes the effectiveness of the other data points in the social graph. So it is a good thing to prune the accounts of the deceased, or otherwise see that they are properly curated.

Preserving our heritage for posterity. Think of the ways you know about your family members that came before you. Stories and oral tradition are generally annotated by photo albums, personal correspondence and other snippets of everyday life. Social media is becoming a preferred substrate for the collection of those snippets. To have that information wander off into the digital ether unaccounted for is to forsake a means of knowing about the past.

How big a deal is this, anyway? This Mashable article commenting on the U.S. government post says that last year about 500,000 Facebook users died. That’s about 0.0006% of the user base. (Incidentally, Facebook users seem much less likely to die than the general population, as 0.007% of the world’s entire population died last year. Go here if you want to do the math yourself.)

I say it’s kind of a big deal, but a deal that’s almost certain to get bigger.