social media and the law

SOCIAL MEDIA AND THE LAW

INTRODUCTION

• Mike Pinkerton

• COO and General Counsel

• Contract development and negotiations, compliance, and litigation

• Engagement: Moderators, customer support agents, social media managers

PUBLISHER IMMUNITY

COMMON LAW DEFAMATION

• Defamation: An intentional false communication that harms a person’s reputation

• Traditional Publisher: Generally liable for anything that appears on its pages• Rationale: Has knowledge, opportunity and ability to edit

before publication

• Traditional Distributor: Generally immune for any material they distribute• Rationale: Impossible to read every publication before distribution

PUBLISHER OR DISTRIBUTOR?

• Cubby v. CompuServe: Court treats CompuServe like a distributor because it did not review contents of the bulletin board = NOT LIABLE

• Stratton Oakmont v. Prodigy: Court treats Prodigy like a publisher it exercised editorial control bulletin board messages through content guidelines and software screening = LIABLE

UPSHOT

Responsible information providers whotried to moderate content faced liability

while hands-off providers did not

DO SOMETHING!

SECTION 230 OF THE CDA

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”

BLUMENTHAL V. DRUDGE

BLUMENTHAL V. DRUDGE

• Drudge Report reports that White House aide Blumenthal has history of spousal abuse

• Blumenthals file defamation suit against Drudge and AOL, which had acquired a license to post the Drudge Report on its service

• AOL asserts CDA immunity as an interactive computer service provider

BLUMENTHAL V. DRUDGE

• HELD: AOL DISMISSED. • Blumenthals can’t prove AOL wrote or

edited material

• License agreement does make AOL more than a passive conduit

• BUT Congress has conferred immunity

BLUMENTHAL V. DRUDGE

“Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted.”

CARAFANO V. METROSPLASH

• Griefer posts fake and offensive personal profile of Carafano on Matchmaker.com with real address and phone number

• Carafano files suit against Matchmaker for invasion of privacy, defamation, etc.

• Matchmaker asserts CDA immunity as an interactive computer service provider

CARAFANO V. METROSPLASH

CARAFANO V. METROSPLASH

• HELD: MATCHMAKER DISMISSED. • Court adopts CDA’s broad immunity for

publishing content

• Rejects argument that some content was formulated in response to a Matchmaker questionnaire

"So long as a third party willingly provides the essential published content, the interactive service provider receives full immunity [under Section 230] regardless of the specific editing or selection process.”

CARAFANO V. METROSPLASH

FAIR HOUSING V. ROOMMATES.COM

FAIR HOUSING V. ROOMMATES.COM

• Roommate site helps individuals find roommates

• Users respond to a series of online questionnaires via drop down and select-a-box menus

• Fair Housing Councils file suit claiming violations of Fair Housing Act, which prohibits discrimination based on

gender, familial status, etc.

FAIR HOUSING V. ROOMMATES.COM

• HELD: NO IMMUNITY. • Court finds Roommates is a content

provider

• Court focuses on use of mandatory check-box and drop down menus to indicate whether user is willing to live with certain types of

roommates (i.e. with children)

“By categorizing, channeling and limiting the distribution of users' profiles, Roommate provides an additional layer of information that it is "responsible" at least ‘in part’ for creating or developing”

FAIR HOUSING V. ROOMMATES.COM

TAKEAWAY

• CDA immunity for sites that:• Passively host third-party content• Edit content, as long as it does not

materially alter the meaning of the content• Pre-screen and post-moderate user

generated content• Encourage or pay third-parties to create or

submit content• CAUTION• Requiring drop-down forms and multiple choice questionnaires

TAKEAWAY

LABOR RELATIONS

NLRB V. AMERICAN MEDICAL RESPONSE

• American Medical Response fired Dawnmarie Souza for posting negative comments on Facebook about her supervisor, including calling him a “scumbag”

• NLRB filed a complaint alleging violations of the NLRA, giving employees the right to discuss the terms and conditions of their employment with their co-workers

NLRB V. AMERICAN MEDICAL RESPONSE

• HELD: CASE SETTLED. • AMR promised to grant employees’

requests for union representation and to revise its Internet and social media policies

NLRB V. AMERICAN MEDICAL RESPONSE

HISPANICS UNITED OF BUFFALO V. ORTIZ

• Mariana Cole-Riveria and others worked as a domestic violence advocates for Hispanics United of Buffalo

• Cole-Riveria and the others discussed in Facebook posts a co-employee’s criticisms of their job performance

• After Hispanics United of Buffalo fired the posters for alleged harrassment, the NLRB filed suit

HISPANICS UNITED OF BUFFALO V. ORTIZ

• HELD: FIRINGS WERE ILLEGAL. • ALJ finds the employees’ Facebook posts

were “protected concerted activity” and not harassment

• Ordered the employer to reinstate the employees with backpay, benefits, and interest

HISPANICS UNITED OF BUFFALO V. ORTIZ

TAKEAWAY

• The NLRB considers social media no different than any other medium

• Employers must allow employees their protected right to discuss among themselves matters affecting their employment, even critical statements made on social media sites

TAKEAWAY

CYBERBULLYING LAWS

J.S. V. BLUE MOUNTAIN SCH. DIST.

• While off campus, a Middle School honor roll student creates a satirical MySpace profile mocking the Principal and containing adult language and sexually explicit content

• Citing harassment and disruption, the Principal suspends the student for ten days, and the superintendent agrees

• Parents file suit for violating First Amendment free speech rights

J.S. V. BLUE MOUNTAIN SCH. DIST.

• HELD: SUSPENSION UNCONSTITUTIONAL • Off-campus speech• Not school sponsored • Not at a school-sponsored event• Caused no disruption at school

• Unwilling to vest school officials with dangerously overbroad

censorship discretion

J.S. V. BLUE MOUNTAIN SCH. DIST.

MASSACHUSETTS LAW

MASSACHUSETTS LAW

“Includes cyberbullying and addresses those behaviors that ‘materially and substantially disrupt the education process or the orderly operation of the school.’”

MASSACHUSETTS LAW

• Need not be at a school-related location or activity

• Need not be with school computer

• Sufficient if bullying creates• A hostile environment at school for the

victim;• Infringes on rights of the victim at school; or • Materially and substantially disrupts the

education process or the orderly operation of a school

TAKEAWAY

• Legislators are resolving to take action against cyberbullying

• Using school punishment for cyberbullying is a strong deterrent

• BUT First Amendment still probably requires a school connection to the cyberbullying

TAKEAWAY

COPPA

COPPA RULE, 16 CFR PART 312

• COPPA Regulates websites and services directed to children under 13 (or collecting information from them)

• Rule requires (among other thigns) operators to obtain verifiable parental consent prior to collecting, using, or disclosing personal information from children under 13

• Includes unfiltered chat

USA V. PLAYDOM, INC.

• Playdom acquires Acclaim Games, which operated online multiplayer games

• FTC complains defendants collected children’s ages and email addresses during registration and

• Enabled kids to publicly post personal information, including full names and location on personal profiles

• WITHOUT obtaining verifiable consent from parents as required by COPPA

USA V. PLAYDOM, INC.

HELD: $3 MILLION PENALTY (CONSENT).

USA V. PLAYDOM, INC.

“Let’s be clear: Whether you are a virtual world, a social network, or any other interactive site that appeals to kids, you owe it to parents and their children to provide proper notice and get proper consent. It’s the law, it’s the right thing to do, and, as today’s settlement demonstrates, violating COPPA will not come cheap.”

TAKEAWAY

• Do not collect personal information from children without verifiable parental consent (and legal advice)

• Safe harbors and services available for assistance with COPPA compliance

• FTC and Congress looking to improve and update COPPA rules

TAKEAWAY

QUESTIONS?