the social media phenomenon...1:1 overview social media is defined as “forms of electronic...

Chapter 1

The Social Media Phenomenon

Kathryn L. Ossian

§ 1:1 Overview§ 1:2 Popular Forms of Social Media

§ 1:2.1 Social Networking Sites§ 1:2.2 Microblogs§ 1:2.3 Social News Sites§ 1:2.4 Social Bookmarking Sites§ 1:2.5 Photo Sharing Sites§ 1:2.6 Video Sharing Sites

§ 1:3 Specific Uses of Social Media§ 1:3.1 Marketing and Public Relations

[A] Promoting Goods and Services[B] Market Research[C] Damage Control

§ 1:3.2 Networking[A] Messaging[B] Job Searching and Recruiting

§ 1:3.3 Information Sharing and Gathering[A] Informal Investigations[B] A Soapbox

§ 1:4 Identifying Legal Issues§ 1:4.1 Content Control and Ownership§ 1:4.2 Privacy Considerations§ 1:4.3 Copyrights and Copyright Law§ 1:4.4 Brand Protection and Impersonation§ 1:4.5 Defamation and Other Torts§ 1:4.6 Employment and Workplace Issues§ 1:4.7 Risks for Regulated Industries§ 1:4.8 Advertising Issues§ 1:4.9 Crimes and Litigation

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§ 1:1 Overview

Social media is defined as “forms of electronic communication . . .through which users create online communities to share information,ideas, personal messages, and other content.”1 Since the introductionof the first social networking site in 1997,2 the use of social media hasgrown steadily. As of September 2014, 52% of Americans who areactive online use multiple social media sites, with Facebook being themost popular for those who use only one.3

Unlike a static website, the social media environment is highlyinteractive and constantly evolving, with layer upon layer of user-basedcontent. A user ’s profile can change in an instant, with the additionof new content. Social media users can quickly and efficiently relayinformation to the entire user community or a smaller subset asselected by the user. Once posted, the information can rarely if ever beretracted.4 These characteristics become important when consideringsome more of the specific ways that individuals and businesses usesocial media.

This chapter identifies and discusses the most popular forms ofsocial media and how they are used; the specific purposes for whichindividuals and organizations use social media; and the resulting legalissues raised by the use of social media, each of which is discussed infurther detail in the ensuing chapters of this treatise.

§ 1:2 Popular Forms of Social Media

§ 1:2.1 Social Networking Sites

Social networking sites are perhaps the most common and well-known form of social media. Sites like Facebook,5 Myspace,6

GooglePlus,7 Instagram,8 and Pinterest9 invite users to establish

1. MERRIAM-WEBSTER DICTIONARY social media (11th ed. 2009), www.merriam-webster.com/dictionary/social+media?show=0&t=1317325770.

2. The first social networking site was SixDegrees.com. See Gordon Goble,The History of Social Networking, DIGITAL TRENDS (Sept. 6, 2012), www.digitaltrends.com/features/the-history-of-social-networking/.

3. Maeve Duggan, Nicole B. Ellison, Cliff Lampe, Amanda Lenhart & MaryMadden, Social Media Update 2014, PEW RESEARCH CTR. (Jan. 9, 2015),www.pewinternet.org/2015/01/09/social-media-update-2014/.

4. While a user has the ability to remove a post from his or her profile, thereis always the possibility that the information has already been reposted byanother user, effectively preventing the information from truly beingdeleted.

5. FACEBOOK, www.facebook.com (last visited Jan. 12, 2015).6. MYSPACE, www.myspace.com (last visited Jan. 12, 2015).7. GOOGLEPLUS, www.google.com/+/learnmore (last visited Jan. 12, 2015).8. INSTAGRAM, www.instagram.com (last visited Jan. 12, 2015).9. PINTEREST, www.pinterest.com (last visited Jan. 12, 2015).

§ 1:1 SOCIAL MEDIA AND THE LAW

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online profiles through which they can share information as well aspost photographs and videos either to the general user communityor to a small group of other users to whom the poster is connectedby mutual acceptance within the particular social networking site.Connected users have the ability to review and comment on eachother ’s postings. The popularity of social networking sites is undeni-able. Facebook claims to have 864 million daily active users and 1.35billion monthly active users as of September 2014.10

Alternatively, users have the opportunity to send private messagesto each other through personal message boards. A user can alsoestablish a group or a series of pages that can be accessed only byother users who are members of the group. Examples include a groupexclusively for alumni from a particular school or a group just forextended family members to plan an upcoming reunion.

Beyond individual use, businesses can also establish profiles onsocial networking sites to which other users can become followers or“fans.”11 Through its social networking pages, a business can promoteits products and services, provide information about upcoming salesor events, gain valuable information about its consumers’ preferences,and address customer complaints or other issues in a real-timefashion.

There are also a number of specialized social networking sites, suchas LinkedIn,12 which focuses on business-oriented networking andoffers users the ability to “endorse” each other for specific skills. Othersocial networking sites focus on specific industries, geographic com-munities, hobbies, or common interests or goals.13

Social networking sites are generally set up as being available tousers at no charge. As a consequence of not charging user fees, manysites feature paid advertising that appears on a user ’s page. Notcharging user fees encourages greater participation. Various third-partyapplications, such as the game Candy Crush Saga on Facebook,14 are

10. Company Info: Statistics, FACEBOOK NEWSROOM, http://newsroom.fb.com/company-info/ (last visited Jan. 28, 2015).

11. The term “fans” is used on Facebook. www.facebook.com (last visitedFeb. 20, 2014).

12. LINKEDIN, www.linkedin.com (last visited Jan. 12, 2015).13. See, e.g., QUANTIAMD, https://secure.quantiamd.com (last visited Jan. 28,

2015), a social networking site for practicing physicians.14. Created in March 2011, Candy Crush Saga launched on Facebook in April

2012 and by fall of that year was the top game on Facebook, with over500 million active users. The game integrates Facebook social media ele-ments, such as being able to advance to the next level only by interactingwith other players on Facebook. See Product Docs: Candy Crush Saga,FACEBOOK, https://developers.facebook.com/docs/showcase/candycrushsaga (last visited Jan. 12, 2015).

§ 1:2.1The Social Media Phenomenon


also made available to users through social networking sites. Thepresence of advertisers and application providers creates a dynamicthat includes not only the site operator and users, but third partiesproviding advertising or applications that operate independently ofthose responsible for the site.

§ 1:2.2 Microblogs

The microblog is another form of social media. Microblog derivesits name from “blog,” a “web site that contains online personalreflections, comments, and often hyperlinks provided by the writer.”15

A microblog is simply a condensed version of a blog. The best-knownmicroblog is Twitter,16 a site allowing users to post updates that are upto 140 characters in length, known as “tweets.” Following anotherTwitter user allows access to that user ’s tweets, which the follower canthen reply to, “re-tweet,” or mark as a “favorite.”

Most Twitter accounts are accessible to the general public onTwitter ’s website unless a user changes the default settings to makehis or her account private and available only to confirmed followers.A notable difference between Twitter and other social media sites isthat any user can become a follower of another user with an openaccount without first being accepted or confirmed by that user. Afterthe fact, however, any Twitter user has the ability to “block” otherusers, preventing them from following his or her account.

Twitter users can use “hashtags,” so that their tweets can be foundin searches conducted on the site. According to Twitter, “[t]he# symbol, called a hashtag, is used to mark keywords or topics in aTweet. It was created organically by Twitter users as a way to categorizemessages.”17 Clicking on a hashtag brings up all other tweets withhashtags in that category. Subsequently, other sites, like Facebook,began encouraging users to include hashtags in posts, but initiallyhave not met with the same success as Twitter.18 Some tend to overusehashtags, causing commentators to discourage users from “wateringdown” a topic by using more than two hashtags per post.19

15. MERRIAM-WEBSTER DICTIONARY, www.merriam-webster.com/dictionary/blog (last visited Jan. 12, 2015).

16. TWITTER, www.twitter.com (last visited Jan. 12, 2015).17. Using Hashtags on Twitter, TWITTER, http://support.twitter.com/articles/

49309-what-are-hashtags-symbols (last visited Jan. 12, 2015).18. See Angela Alcorn, Facebook’s Trending Topics—Should You Stop Using

Hashtags Now? [Weekly Facebook Tips], MAKEUSEOF, Jan. 21, 2014, www.makeuseof.com/tag/hashtags-making-way-facebooks-new-trending-topics-weekly-facebook-tips/.

19. See, e.g., Amanda Grinavich, 4 Social Media Commandments for 2015(and Beyond), SHIFT COMMUNICATIONS (Jan. 9, 2015), www.shiftcomm.com/2015/01/social-media-commandments-2015/.

§ 1:2.2 SOCIAL MEDIA AND THE LAW

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§ 1:2.3 Social News Sites

As the name implies, social news sites are informational sitesoffering current and archived news stories. What makes social newssites different from newspaper sites, like the New York Times web-site,20 is that after registering with the site, users may submit stories.Editors at the site then pick and post selected stories. Like othertraditional news sites, social news sites allow users to post commentson the stories.

Digg21 and Fark22 are each general social news sites, but with verydifferent spins on the news stories they publish. There are manyspecial-focus social news sites as well. Another example of a socialnews site is Mashable,23 which focuses on the latest news in topicsincluding technology, social media, business, and entertainment.Instead of simply delivering the news to its subscribers, a socialnews site also may allow subscribers to add new stories of interestto them.

§ 1:2.4 Social Bookmarking Sites

Through social bookmarking sites, users can save or “bookmark”their favorite websites and locate more resources based on other users’comments and recommendations. A prime example of a social book-marking site is Delicious24 or Reddit.25 Social bookmarking sites allowusers to tag their bookmarks using their own descriptive terms. Thehome page of the site lists popular posts and often contains a searchengine, allowing users to find web resources relating to any number oftopics. All posted bookmarks are publicly accessible unless userschange their default settings to keep their bookmarks private.26

§ 1:2.5 Photo Sharing Sites

Another popular form of social media is the photo sharing site.On these sites, registered users can post an unlimited number of

20. N.Y. TIMES, www.nytimes.com (last visited Jan. 12, 2015).21. DIGG, www.digg.com (last visited Jan. 12, 2015).22. FARK.COM, www.fark.com (last visited Jan. 12, 2015).23. MASHABLE, http://mashable.com/ (last visited Jan. 12, 2015).24. DELICIOUS, https://delicious.com (last visited Jan. 12, 2015). The site

started in 2003 and claimed more than five million users five years later.Loren Baker, Delicious.com Relaunches: Enhanced Speed, Search &Design with No Dots, SEARCH ENGINE J. (July 31, 2008), www.searchengi-nejournal.com/deliciouscom-relaunches-enhanced-speedsearch-design-with-no-dots/7403/.

25. REDDIT, www.reddit.com (last visited Jan. 28, 2015). Reddit is self-de-scribed as “a type of online community where users vote on content.”About Reddit, REDDIT, www.reddit.com/about/ (last visited Jan. 28, 2015).

26. See, e.g., REDDIT, www.reddit.com (last visited Jan. 12, 2015).



photographs, thereby allowing invitees to view the photographs bygoing to that site. Two examples of photo sharing sites are Flickr27 andInstagram.28 A very popular photo sharing site is Pinterest,29 whichallows users to “pin” photos from third-party sites, organize them bytopic, and allow for followers to view and comment. Photo sharingsites and apps offer a user the advantage of posting photos once andsending a single message to invite friends to view them, as opposedto saving the photos on a computer hard drive, then attachingand sending them via an email or text message. Sending photos byemail can be more time-consuming and is subject to file size limita-tions associated with the sender ’s or receiver ’s email account. Sendingphotos by text can result in additional charges from the cell carrier,depending on the particular data plan. Photo sharing sites also offerusers a safe place to store photos. Flickr boasts that “your photos aresafe with us” and “you [will] never lose another photo again.”30

Many sites allow the photographs to be downloaded, shared, andassembled for creative printing, although some sites are structuredsimply to conduct business. For example, a photo sharing site may beutilized by a professional photographer to allow its clients to displayphotos taken by the photographer, perhaps of a wedding or other event,and allow visitors to access the site to order copies of the photos fromthe photographer.

§ 1:2.6 Video Sharing Sites

Everyone can have “fifteen minutes of fame” via video sharing sites.These sites allow users to upload videos so that anyone with access tothe Internet can view them. The term “going viral” refers to an onlinevideo that becomes extremely popular in a short amount of time.31 Avideo that goes viral is typically shared over and over, perhaps millionsof times.

The most renowned video sharing site is YouTube,32 which wasstarted in early 2005. Not surprisingly, there are several videos onYouTube documenting the history of YouTube.33 The philosophy ofvideo sharing sites is to encourage users to post videos, watch otherusers’ videos, and share them outside of the site community.

27. FLICKR, www.flickr.com (last visited Jan. 15, 2015).28. INSTAGRAM, http://instagram.com (last visited Jan. 29, 2015).29. PINTEREST, http://pinterest.com/ (last visited Jan. 15, 2015).30. FLICKR, supra note 27.31. What does going viral mean in the internet world?, ANSWERS.COM, http://

wiki.answers.com/Q/What_does_going_viral_mean_in_the_internet_-world (last visited Jan. 15, 2015).

32. YOUTUBE, www.youtube.com (last visited Jan. 15, 2015).33. See, e.g., The History of YouTube, YOUTUBE (May 18, 2007), www.

youtube.com/watch?v=x2NQiVcdZRY.


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Like social networking sites, video sharing sites are used not only byindividuals but also by businesses to promote their products andservices, non-profit organizations to draw attention to their causes,and even by politicians to rally constituents on a key issue. If “apicture is worth a thousand words,”34 a video can speak volumes.

§ 1:3 Specific Uses of Social Media

§ 1:3.1 Marketing and Public Relations

The popularity and seemingly infinite reach of social media make ita natural vehicle for marketing. Using social networking, microblogsand even photo and video sharing sites to promote goods and serviceshas become commonplace in the corporate as well as non-profit world.An organization that has no social media marketing presence may, atbest, miss out on opportunities and, at worst, find itself at a dis-advantage in its particular industry.

[A] Promoting Goods and ServicesCompared to more traditional forms of marketing, using social

media to promote goods or services can be more affordable andperhaps equally or more effective. Paid advertisements on social mediasites can be targeted to specific users based on their interests anddemographics. Companies also often combine traditional marketingtechniques with promotion through social media. Thus, a companyrunning a television advertisement may expand its reach by pushingthe same spot out before and/or afterwards on Facebook, Twitter,or YouTube.35 In 2014, a record 57% of Super Bowl ads includedhashtags.36

[B] Market ResearchThe interactive nature of social media allows organizations to seek

and obtain feedback from their customers and from consumers ingeneral. Valuable information may come in the form of a response toan open question or survey or may be offered spontaneously by a social

34. Attributable to Napoleon Bonaparte: Search Quotes, A picture is worth athousand words, www.searchquotes.com/quotation/A_picture_is_worth_a_thousand_words./1436/ (last visited Jan. 15, 2015).

35. Edward Boches, TV Advertising Is Back, Thanks to Social Media, CREATIV-ITY UNBOUND (Apr. 18, 2011), http://edwardboches.com/social-media-and-twitter-bring-back-tv-advertising (quoting tweet from @turnageb, “Oncepeople watched the #SuperBowl for the game. Then they watched for theads. Now we watch for the Tweets #brandbowl #sb45”).

36. Danny Sullivan, New Record for 2014: Hashtags Mentioned in 57% ofSuper Bowl Ads, MARKETING LAND (Feb. 2, 2014), http://marketingland.com/hashtags-super-bowl-2014-72658.



media fan. In an effort to capitalize on social media advertising, anumber of services offer potential buyers demographic informationuseful for marketing on social media sites.37 By using various trackingtools and techniques, a company can proactively locate and respond toindividual posts that mention the company or its goods or services onthe company ’s own social media pages.38

[C] Damage ControlSocial media may also be used to address a consumer issue or a

public relations nightmare. For example, during its bailout discussionsin 2009, General Motors Corporation consistently posted tweetsaimed at defusing negative comments being made by governmentofficials and the media. Similarly, after a prank video was posted onYouTube showing two North Carolina–based Domino’s Pizza employ-ees engaging in less-than-hygienic conduct while handling food,39

Domino’s responded by posting a corporate apology in the form ofits own YouTube video.40 In June 2013, Taco Bell found itself in asimilar situation when a photo of an employee licking a stack of tacoshells was posted on the company ’s Facebook page. Within twenty-four hours, Taco Bell posted the following response: “We have strictfood handling procedures and zero tolerance for any violations.We believe this is a prank and the food was not served to customers.We are conducting an investigation and will be taking swift actionagainst those involved.”41 It has been recommended that companieshave a “social media crisis plan” that includes steps for detecting andresponding to a corporate social media blunder.42

§ 1:3.2 Networking

As described above,43 networking is one of the principal reasonsindividuals and businesses use social media. In individual profiles,

37. See, e.g., Get Inside Your Audience, QUANTCAST, www.quantcast.com/measure (last visited Jan. 29, 2015).

38. Apparently, many companies are not taking advantage of this opportunity.See Boches, supra note 35.

39. How to Get Fired from Dominos Pizza, YOUTUBE (Apr. 13, 2009), www.youtube.com/watch?v=1D9PikBzNNo&feature=related.

40. Dominos President Responds to Prank Video, YOUTUBE (Apr. 18, 2009),www.youtube.com/watch?v=dem6eA7-A2I.

41. Devon Glenn, Taco Bell Tries to Control Damage After Facebook PhotoShows Employee Licking Shells, SOCIALTIMES (June 3, 2013), http://socialtimes.com/taco-bell-tries-to-control-damage-after-facebook-photo-shows-employee-licking-shells_b128705.

42. See, e.g., 5 Things You Must Have in Your Social Media Crisis Plan,SOCIALBAKERS, www.socialbakers.com/blog/2100-5-things-you-must-have-in-your-social-media-crisis-plan (last visited Jan. 29, 2015).

43. See section 1:2.1, supra.


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users generally post information about themselves, their interests andactivities, as well as affiliations, education, and occupational back-ground. Social networks often allow each member to choose fromdifferent levels of privacy, such as whether to allow all other membersof the network to see the individual’s profile content or to limit it onlyto the connected members. Social networks may allow even furtherrefinement of access control within the connected community. Net-working within a social media site is also accomplished throughmessaging, job searching, employee recruiting, and endorsing orrecommending other users.

[A] MessagingIn many instances, social media has replaced email as a tool for

sending messages, particularly in terms of business communicationsand collaboration.44 Sending messages via social media is furtherfacilitated by the availability of many social media applications onsmartphones and other mobile devices. Users can send personalmessages using social media or by posting on another user ’s page orprofile and, depending on the privacy settings associated with therecipient’s profile, send a message that can be seen by others andperhaps by anyone.

[B] Job Searching and RecruitingIndividuals seeking employment use social media to post résumés,

make job inquiries, and review social media profiles and postings ofprospective employers. At the same time, organizations seeking newemployees can post job openings using social media to spread the wordthat they are hiring. Where permitted by law, prospective employers mayalso choose to view a candidate’s social media presence before making ajob offer, looking to rule out candidates who show evidence of unprofes-sional or questionable conduct.

§ 1:3.3 Information Sharing and Gathering

[A] Informal InvestigationsProspective employers are not the only ones who use social media

to conduct information investigations of individuals. Police andprosecutors may check social media profiles of defendants and wit-nesses. Within the bounds of ethical obligations, litigators can look up

44. Dan Beiler, Social Media Collaboration in the Enterprise Environ-ment Is Key for Business Communications, DAN BIELER’S BLOG (June 11,2013), http://blogs.forrester.com/dan_bieler/13-06-11-social_media_collaboration_in_the_enterprise_environment_is_key_for_business_communications.



the profiles of parties, witnesses, and even jurors. The privacy settingsemployed by the individuals who are the subjects of these investiga-tions are critical in determining how much information will beavailable.

[B] A SoapboxBlogs, microblogs, and other social media applications provide a

real-time, interactive forum for sharing opinions, pushing a partic-ular agenda, or engaging in critical commentary. No political issue,significant event, or industry is immune from becoming a topic ofdiscussion. In 2009, Facebook amended its terms of use by deletinga sentence stating that its users’ license grant to Facebook for usercontent automatically expired when the user removed the content.This deletion, among other changes, created an immediate and veryvocal negative reaction throughout the Facebook user community.As a result, Facebook made an abrupt about-face, restoring thesentence and stating that it never intended to change its privacypractices.45 In 2014, the “Ice Bucket Challenge,” an awareness andfundraising effort, generated millions of Facebook videos of individ-uals dumping cold water on themselves, as well as millions ofdollars in donations to the ALS Association.46

§ 1:4 Identifying Legal Issues

§ 1:4.1 Content Control and Ownership47

Users who post information using social media may believe thattheir profile content, photos, etc. are theirs to own and control—but isthis really the case?

Social media sites differ in their policies and practices. LinkedIn, forexample, requires its users to grant LinkedIn, with respect to all postedcontent, a nonexclusive

worldwide, transferable and sublicenseable right to use, copy,modify, distribute, publish and process . . . without any furtherconsent, notice and/or compensation to you or others.48

45. Jessica E. Vascellaro, Facebook’s About-Face on Data: Retreat on UserTerms Highlights Touchy Area of Shared Yet Private Info, WALL ST. J.(Feb. 19, 2009), http://online.wsj.com/article/SB123494484088908625.html.

46. See Timothy Stenovec, The Reasons the Ice Bucket Challenge Went Viral,HUFFINGTON POST (Aug. 19, 2014), www.huffingtonpost.com/2014/08/19/ice-bucket-challenge_n_5692307.html.

47. See also chapter 3, infra.48. User Agreement, LINKEDIN (rev. Oct. 23, 2014), www.linkedin.com/legal/

user-agreement.

§ 1:4 SOCIAL MEDIA AND THE LAW

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Twitter ’s terms contain a similar license and also include the promi-nent notice: “This license is you authorizing us to make your Tweetsavailable to the rest of the world and to let others do the same.”49

Another risk of using social media is the inadvertent disclosure ofconfidential or sensitive information. Social media tools provide aninstantaneous means of communicating with an entire online com-munity. Using social media in haste can lead to unintended, perhapseven disastrous results. One example is the undoubtedly well-intended“tweet” in February 2009 from U.S. Congressman Peter Hoekstra thathe had just landed in Iraq for what was supposed to be a secret trip.50

Another congressman also fell victim to a major Twitter gaffe—inJune 2011, U.S. Congressman Anthony Weiner admitted to sendinginappropriate photos to several women after initially denying sendinga nude photo of himself over Twitter.51

There may also be challenges with retrieving information from asocial media site. Given the dynamic nature of social media, capturinginformation at a particular moment in time may not be possible. Forexample, a government agency with a social media presence may havedifficulty precisely responding to a request under the Freedom ofInformation Act52 or other sunshine law.53

§ 1:4.2 Privacy Considerations54

While many social media sites offer users the ability to customizeprivacy settings, what happens when users do not avail themselves ofthat opportunity? The default settings then control what informationis made available to the general public. Facebook’s default settingallows anyone full access to the information on a user ’s profile;however, recent changes to account settings allow users to define theprivacy settings even on a post-by-post basis.55 What users may not

49. Terms of Service, TWITTER, https://twitter.com/tos (Sept. 8, 2014).50. See Kyla King, Congressman Pete Hoekstra’s Twitter Flap Prompts Penta-

gon Policy Review GRAND RAPIDS PRESS, Feb. 11, 2009, available at www.mlive.com/news/grand-rapids/index.ssf/2009/02/hoekstras_twitter_flap_prompts.html.

51. See Chris Cuomo, Chris Vlasto & Devin Dwyer, ABC NEWS, Rep.Anthony Weiner: ‘The Picture Was of Me and I Sent It,’ June 6, 2011,available at http://abcnews.go.com/Politics/rep-anthony-weiner-picture/story?id=13774605.

52. 5 U.S.C. § 552, as amended by Pub. L. No. 110-175, 121 Stat. 2524(2007), and Pub. L. No. 111-83, § 564, 123 Stat. 2142, 2184 (2009).

53. See D. Levine, The Social Layer of Freedom of Information Law, 90 N.C. L.REV. at 101 (Feb. 29, 2012). See id. (Abstract), available at http://cyberlaw.stanford.edu/publications/social-layer-freedom-information-law.

54. See also chapter 2, infra.55. Sharing and Finding You on Facebook, FACEBOOK, www.facebook.com/

about/privacy/your-info-on-fb (last visited Jan. 20, 2015).



realize is that Facebook and other social media sites do not control thethird-party applications that are widely available. By signing up for anapplication, a user is allowing that third party access to all of the user ’sprofile information. Unfortunately, the application provider ’s infor-mation sharing practices may not be disclosed.56

Using social media can lead to a user ’s interests and profiles beingtracked for marketing purposes. Facebook uses facial recognition tosuggest that users “tag” themselves and others in photos posted on thesite. This technology, coupled with other information being collectedonline and off, has the potential for many uses beyond marketing.57

“Do Not Track” legislation has been proposed more than once on thefederal level58 as well as in some states, and class lawsuits have beenfiled against companies alleged to be using embedded cookies totrack user web browsing activities even when a user has deactivatedcookies from his or her browser.59

Collecting personal information online from children under the ageof thirteen without first obtaining prior parental consent is prohibitedby the Children’s Online Privacy Protection Act of 1998.60 Socialmedia sites may, in fact, be unwittingly collecting information inviolation of COPPA if a user under the age of thirteen enters a falsedate of birth, representing that he or she is thirteen or older.

§ 1:4.3 Copyrights and Copyright Law61

The technology associated with the Internet easily allows text,graphics, photos, and logos to be copied and pasted. Doing so will,in many instances, violate U.S. copyright law. Using any third-party

56. App Safety & Security, FACEBOOK, www.facebook.com/help/468928659802672 (last visited Jan. 20, 2015).

57. Martin Kaste, A Look into Facebook’s Potential to Recognize Anybody’sFace, ALL TECH CONSIDERED BLOG (Oct. 28, 2013), www.npr.org/blogs/alltechconsidered/2013/10/28/228181778/a-look-into-facebooks-potential-to-recognize-anybodys-face.

58. Do-Not-Track Online Act of 2013, S.418, 113th Cong. (2013) (introducedin the Senate on Feb. 28, 2013), available at http://beta.congress.gov/bill/113th-congress/senate-bill/418.

59. Kathryn Ossian, Web Tracking Lawsuits—The Latest Class Action Trend?,MILLER CANFIELD (Aug. 16, 2011), www.millercanfield.com/resources-alerts-698.html (last visited Jan. 20, 2015).

60. Pub. L. No. 105-277, 112 Stat. 2581-728 (1998) (codified at 15 U.S.C.§§ 6501–06) [hereinafter COPPA]. The Federal Trade Commission revisedCOPPA rules, effective July 1, 2013, broadening the definition of children’spersonal information and expanding the scope of the rules. Press Release,Fed. Trade Comm’n, Revised Children’s Online Privacy Protection RulesGoes into Effect Today (July 1, 2013), www.ftc.gov/news-events/press-releases/2013/07/revised-childrens-online-privacy-protection-rule-goes-effect.

61. See also chapter 3, infra.


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content without permission can result in both criminal and civilliability, including treble damages and attorney fees under the U.S.Copyright Act.62

Most social networking sites address the use of third-party contentin their terms of use. For example, Twitter ’s “Basic Terms” define“Content” as “any information, text, graphics, photos or other mate-rials uploaded, downloaded or appearing on the Services.”63 TheTwitter terms further state that users are responsible for any Contentposted to the Services. Under the “Copyright Policy” section of itsterms, Twitter reserves the right to “remove Content alleged to beinfringing without prior notice, at [its] sole discretion . . . .”64 Theunauthorized use of third-party content also violates the terms ofuse of most social networking sites and could serve as an additionalbasis for liability.

Mindful that copyright infringement is a real possibility, manysocial networks also provide a mechanism for users to notify themof infringing activities and what actions the company may take uponlearning of the infringement. Facebook’s Terms of Use link to an“About Copyright” section, with explicit directions on how to reportincidents of copyright infringement and stating that after such claim issubmitted, Facebook will process it, which may result in removing ordisabling access to the infringing content.65

Copyright holders may take stringent measures to enforce theirrights. Getty Images, Inc., the world’s leading provider of visualcontent, states that it “fall[s] victim to tens of thousands of partiespirating [its] intellectual property.” In 2012, Griffin identified over40,000 instances of infringement in the United States.66 YouTube nowoffers a “Content ID” feature that allows copyright owners to submitfiles that YouTube adds to a database against which user-uploadedvideos are checked; copyright owners then decide what steps YouTubeshould take regarding the content.67

62. 17 U.S.C. § 101 et seq. See also U.S. COPYRIGHT OFFICE CIRCULAR 92,COPYRIGHT LAW OF THE UNITED STATES AND RELATED LAWS CONTAINEDIN TITLE 17 OF THE UNITED STATES CODE (Dec. 2011), available at www.copyright.gov/title17.

63. Terms of Service, TWITTER, https://twitter.com/tos (Sept. 8, 2014).64. Id.65. Reporting Copyright Infringements, FACEBOOK, https://www.facebook.com/

help/400287850027717 (last visited Jan. 20, 2015).66. Comments on Remedies for Small Copyright Claims: Getty Images

(Oct. 19, 2012), available at www.copyright.gov/docs/smallclaims/comments/noi_10112012/getty_images.pdf.

67. How Content ID Works, GOOGLE, https://support.google.com/youtube/answer/2797370?hl=en (last visited Jan. 3, 2015).



§ 1:4.4 Brand Protection and Impersonation68

Blogging and social networking sites can be used by competitorsand other third parties to impersonate another organization. There aremany examples of impersonation and brand hijacking. A number oflawsuits have been filed raising allegations of impersonation and/orfake social networking profiles.69 Impersonation may occur inconjunction with other attempted wrongful acts. In January 2014,LinkedIn sued a group of unknown hackers who allegedly createdfake accounts in order to scrape data of LinkedIn members.70

Beyond protecting against outright impersonation, an entity alsoneeds to police those who might misuse its brand identifiers. Are acompany ’s trademarks being used as search “tags” to promote competinggoods? Courts addressing this type of situation undertake a traditional“likelihood of confusion” analysis under the federal Lanham Act.71

Trademark issues may also arise for a social media site whereanother party is using a suffix or similar-sounding name. Owners ofthe website Lamebook.com filed a lawsuit against Facebook, seeking adeclaration that its site does not infringe Facebook’s intellectual prop-erty rights.72 One week later, Facebook filed its own lawsuit againstLamebook in federal court in California alleging trademark infringe-ment, trademark dilution, and related claims. Lamebook argued that, asa parody site, its name and re-posting of Facebook posts constitute fairuse.73 Facebook had previously sought to prevent others from using thesuffix “-book” in a website name.74 In 2011, Facebook and Lamebook

68. See also chapter 4, infra.69. See Buckles v. Brides Club, Inc., No. 2:08-cv-00849, 2010 WL 3190751

(D. Utah Aug. 11, 2010).70. See Martha Neil, LinkedIn Sues Hackers, Says They Created

Fake Accounts to Scrape Data, ABA J., Jan. 7, 2014, available at www.abajournal.com/news/article/linkedin_sues_hackers_says_they_created_fake_accounts_to_scrape_data?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly.

71. Pub. L. No. 79-489, 60 Stat. 427 (1946); see, e.g., Partners for Health &Home, L.P. v. Seung Wee Yang, No. CV 09-07849 RZ, 2011 WL 5387075(C.D. Cal. Oct. 28, 2011). Defendants were allegedly infringing plaintiff ’sfederally registered trademark for stainless steel cookware to promotecompeting products. Among the ways in which PHH alleged that thedefendants misused PHH’s mark were as video tags for videos posted onYouTube.com.

72. Complaint, Lamebook, LLC v. Facebook, Inc., No. 1:10-cv-00833(W.D. Tex. Nov. 4, 2010).

73. Complaint, Facebook, Inc. v. Lamebook, LLC, No. 3:10-cv-05048(N.D. Cal. Nov. 8, 2010).

74. See, e.g., Facebook, Inc. v. Teachbook.com, LLC, No. 10-cv-03654, 2011WL 1672464 (N.D. Cal. May 3, 2011); Facebook, Inc. v. Teachbook.com


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settled their dispute. Lamebook retained the right to use its name, butagreed to add a disclaimer to its site. Lamebook also agreed not to seektrademark registration of its name and not to comment on the termsof the settlement.75

§ 1:4.5 Defamation and Other Torts76

Social media sites generally prohibit the posting of defamatorycontent by members and reserve the right (while not assuming theobligation) to remove any such content.77 Lawsuits alleging defama-tion based on online content are not uncommon78 and are generallytreated by courts in the same manner as those involving traditionaloffline defamation claims.

Unlike other online defamation claims that often involve anony-mous posters, however, defamation occurring on a social media site islikely to be attributable to an actual individual (assuming thatindividual’s profile information accurately reflects his or her identity).This magnifies the risk of liability for such online activities.

In January 2014, the first so-called Twibel case (libel via Twitter)went to trial. Singer Courtney Love was sued by her former attorney,Rhonda Holmes, based on Love’s tweet that Holmes had been “boughtoff” from pursuing a matter on Love’s behalf. The jury found thatHolmes (whom the judge deemed a limited public figure) failed todemonstrate that Love knew the statement was false or made it withreckless disregard for the truth.79

Posting defamatory or other content that could form the basis for atort action can flow not only to the individual poster but also,potentially, to the poster ’s employer or affiliated group, under avicarious liability theory. The plaintiff would, of course, have to prove

LLC, 819 F. Supp. 2d 764 (N.D. Ill. Sept. 26, 2011). See also JoelRosenblatt & Victoria Slind-Flor, Facebook Sues Lamebook Parody Sitefor Alleged U.S. Trademark Infringement, BLOOMBERG (Nov. 9, 2010),www.bloomberg.com/news/2010-11-09/facebook-sues-lamebook-parody-site-for-alleged-u-s-trademark-infringement.html.

75. See Regina Sinsky, Facebook and Lamebook Quietly Settle TrademarkBattle, VENTUREBEAT (Aug. 31, 2011), http://venturebeat.com/2011/08/31/facebook-and-lamebook-quietly-settle-trademark-battle/.

76. See also chapter 5, infra.77. See Terms of Service, TWITTER, https://twitter.com/tos (Sept. 8, 2014).78. For example, Canadian model Liskula Cohen sued Google over remarks

made about her by an anonymous blogger using Google’s Blogger Service.See Robin Wauters, Model Sues Google over Snarky Blogger Remarks,TECHCRUNCH (Jan. 7, 2009), www.techcrunch.com/2009/01/07/model-sues-google-over-snarky-blogger-remarks.

79. See Gordon & Holmes v. Love, Case No. BC462438 (Cal. Sup. Ct. May 26,2011), available at http://images.eonline.com/static/news/pdf/CourtneyTwitterSuit.pdf.



a case against the organization; however, defense costs—even to get tothe point of a summary judgment motion—can be significant.

Content posted on social networking sites can also serve as thebasis for claims such as intentional infliction of emotional distress orinterference with advantageous economic relations. Incidents of“cyberbullying” are increasing and can also be the basis for criminalcharges.80

§ 1:4.6 Employment and Workplace Issues81

As the case of the Domino’s employees who were terminated afterposting the YouTube video, discussed above, demonstrates,82 employeeuse of social media can result in disciplinary action or even termina-tion of employment. But the implications of social media use extend topotential employees and job applicants as well.

According to a 2014 survey conducted by Jobvite, 93% of recruit-ers use or plan to use social media in recruiting new employees, 73%have hired employees through social media, and 55% have reconsid-ered a candidate after reviewing content on the candidate’s socialmedia site.83 In a 2013 survey taken by Peninsula Business Services, aU.K.-based employment law services provider, 64% of employers lookedat a potential employee’s Facebook or Twitter account.84 Individualsposting and maintaining profiles should keep this in mind beforeposting certain photos and content that could cost them a job in thefuture. A number of states prohibit employers from asking employeesand job applicants for social media log-in information or passwords.85

Beyond the obvious impact on the applicant, does an employer whotakes information gleaned from a social networking profile in makingemployment decisions face any risk in doing so? If an employer makesan adverse employment decision because of information gathered fromFacebook or another social network, could this be a violation of

80. Cyberstalking or cyberharassment is criminalized in several states. SeeState Cyberstalking and Cyberharassment Laws, NAT’L CONFERENCE OFSTATE LEGISLATURES (last updated Jan. 12, 2015), www.ncsl.org/issues-research/telecommunications-and-information-technology/cyberstalking-and-cyberharassment-laws.aspx.

81. See also chapter 6, infra.82. See section 1:3.1[C], supra.83. JOBVITE, SOCIAL RECRUITING SURVEY 2014, available at www.jobvite.com/

wp-content/uploads/2014/10/Jobvite_SocialRecruiting_Survey2014.pdf.84. See Most Employers Check Facebook, Twitter of Job Applicants, CHIEF

LEARNING OFFICER (Oct. 3, 2013), http://clomedia.com/articles/view/most-employers-check-facebook-twitter-of-job-applicants.

85. See Employer Access to Social Media Usernames and Passwords, NAT’LCONFERENCE OF STATE LEGISLATURES, www.ncsl.org/issues-research/telecom/employer-access-to-social-media-passwords-2013.aspx (lastvisited Jan. 12, 2015).


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applicable employment and labor laws? What if the informationrevealed on the site puts the applicant in a protected class underfederal or state laws? In addition, the applicant’s conduct could beprotected concerted activity under federal labor law.86 Finally, somestates prohibit adverse employment actions based on politicalexpression.

§ 1:4.7 Risks for Regulated Industries87

Banks and other financial service providers and other regulatedindustries have special challenges when it comes to using socialmedia. In December 2013, the Federal Financial Institutions Exam-ination Council (FFIEC) issued a final guidance on how various lawsapply to financial institutions’ use of social media.88 The guidancerecommends that financial institutions have a social media riskmanagement program, and delineates the components that shouldbe included in the program.89 The blur between employees’ businessand personal use of social media can take on a greater impact fora company in a highly regulated industry. Along with greater riskcomes a reputational threat to the institution.

Both the Securities and Exchange Commission (SEC) and theFinancial Industry Regulatory Authority (FINRA) are monitoringinvestment advisory firms’ use of social media. Specifically, the SECand FINRA are interested in a broker ’s business and personal useof sites such as Facebook, Twitter, LinkedIn, Myspace, YouTube,and Flickr, as well as posting on blogs or microblogs; any commu-nications made or received by an investment adviser on any social mediasite; and any policies or procedures concerning brokers’ use of socialmedia.90

Another regulatory issue that can impact any publicly traded com-pany using social media involves potential violations of RegulationFD.91 Using social media to disseminate information could also lead

86. See 29 U.S.C. § 157.87. See also chapter 7, infra.88. Federal Financial Institutions Examination Council, Social Media: Con-

sumer Compliance Risk Management Guidance (Dec. 11, 2013), availableat www.ffiec.gov/press/PDF/2013_Dec%20Final%20SMG%20attached%20to%2011Dec13%20press%20release.pdf.

89. Id.90. See SEC Begins Sweep on Social Media and Networking, ACA COMPLI-

ANCE GROUP (Jan. 24, 2011), www.advisercompliance.com/news/compliance-alert/sec-begins-sweep-social-media-and-networking; TargetedExamination Letters, FINRA (June 2013), www.finra.org/Industry/Regulation/Guidance/TargetedExaminationLetters/P282569.

91. Final Rule: Selective Disclosure and Insider Trading, 17 CFR Parts 240,243, and 249, Securities Act Release No. 7881 (Aug. 15, 2000), available atwww.sec.gov/rules/final/33-7881.htm (last visited Jan. 20, 2015).



to an inadvertent violation of the SEC ’s disclosure rules. Forexample, if a corporate tweet contains discussion of an impendingmerger or acquisition or other material information that has notpreviously been disclosed publicly, there could be a Regulation FDviolation. Also, federal and state securities laws generally requirethat any disclosure of material information not omit informationnecessary to keep the information that is disclosed from being mis-leading. In April 2013, the SEC issued a report92 on its investigation of aFacebook post by Netflix CEO Reed Hastings. In the report, the SECconcluded that publicly traded companies may use social media tocommunicate information to investors, so long as investors are firstadvised of the communication channels and that the communicationsthemselves comply with Regulation FD.

Another still largely unregulated online activity is crowdfunding, or“the practice of funding a project or venture by raising many smallamounts of money from a large number of people, typically via theInternet.”93 In 2014, the SEC issued a preliminary interpretationtouching on crowdfunding, with more rules expected in the future.94

§ 1:4.8 Advertising Issues95

Federal Trade Commission (FTC) guidelines require that a bloggerengaged in “word-of-mouth” marketing of products or services dis-close any payments or free products received by the blogger.96 TheFTC has conducted investigations under the guidelines, but has notyet issued any fines.97

92. Report of Investigation Pursuant to Section 21(a) of the SecuritiesExchange Act of 1934: Netflix, Inc. and Reed Hastings, Exchange ActRelease No. 69,279 (Apr. 2, 2013), available at www.sec.gov/litigation/investreport/34-69279.pdf.

93. OXFORD DICTIONARIES, crowdfunding, www.oxforddictionaries.com/us/definition/american_english/crowdfunding (last visited Jan. 29, 2015).

94. SEC, Compliance and Disclosure Interpretation: Securities Act Rules,at Q 141.04 (Apr. 10, 2014), available at www.sec.gov/divisions/corpfin/guidance/securitiesactrules-interps.htm.

95. See also chapter 8, infra.96. News Release, Fed. Trade Comm’n, FTC Publishes Final Guides Govern-

ing Endorsements Testimonials (Oct. 5, 2009), www.ftc.gov/opa/2009/10/endortest.shtm.

97. The FTC looked into Ann Taylor Stores Corporation’s LOFT Division,which provided gifts to bloggers who attended a January 2010 preview ofthe LOFT’s summer 2010 collection. Ultimately, the FTC did not recom-mend an enforcement action against the company. For a blogger ’s per-spective on the investigation, see Lauren Indvik, No Fines Levied in FTC’sFirst Blogger-Advertiser Investigation, MASHABLE (Apr. 30, 2010), http://mashable.com/2010/04/30/ann-taylor-ftc-investigation. In October 2012,the FTC closed its investigation into Hewlett-Packard for having allegedlyprovided gift certificates to bloggers and their visitors in exchange for


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Another advertising issue facing social media users is the prolifera-tion of unsolicited commercial messages, or spam. In November 2011,Facebook was targeted by hackers spreading pornographic and violentimages, prompting Facebook to issue a spam warning to its users.98 Itis not just social media hackers who may be responsible for spam.Advertisers may also be violating the CAN-SPAM Act99 by sendingunsolicited electronic messages to social media users “consistent withCongress’s intent to mitigate the number of misleading commercialcommunications overburdening the Internet.”100

§ 1:4.9 Crimes and Litigation101

Social networks are increasingly a source for the discovery andinvestigation of criminal activity by members. A New York judge ruledthat what a criminal defendant posts on Facebook can be used asevidence against him or her.102 Similarly, social media profiles can beuseful in determining the identity of and/or locating the perpetratorof a crime.103

Social networking can itself constitute or lead to criminal activity.One widely reported case involved a Missouri woman, Lori Drew, whocreated a fictitious MySpace account to pose as a teenage boy pretendingto be interested in a thirteen-year-old female acquaintance of herdaughter. When the acquaintance discovered the ruse, she committedsuicide. Drew was charged with various counts, including felonies. InNovember 2008, Drew was convicted of three misdemeanor counts ofcomputer fraud.104 In January 2009, a British man who killed his wife

positive reviews of a new HP product. See Richard Newman, FTC GivesHP a Pass for Endorsement Guideline Violations, PERFORMANCE MARKET-ING INSIDER (Oct. 28, 2012), http://performinsider.com/2012/10/ftc-gives-hp-a-pass-for-endorsement-guideline-violations.

98. Facebook Issues Spam Warning to Users, CBS NEWS (Nov. 6, 2011), www.cbsnews.com/videos/facebook-issues-spam-warning-to-users/.

99. 15 U.S.C. § 7701. The CAN-SPAM Act prohibits “the transmission, to aprotected computer, of a commercial electronic mail message, or a transac-tion or relationship message, that contains, or is accompanied by, headerinformation that is materially false or materially misleading.” 15 U.S.C.§ 7704(a)(1).

100. See Facebook, Inc. v. MaxBounty, Inc., 274 F.R.D. 279 (N.D. Cal. 2001).101. See also chapter 9, infra.102. See Doug Mataconis, Judge Rules That What You Post on Facebook Can Be

Used as Evidence Against You, OUTSIDE THE BELTWAY (Aug. 19, 2012),www.outsidethebeltway.com/judge-rules-that-what-you-post-on-facebook-can-be-used-as-evidence-against-you/.

103. Erline Aguiluz, Philadelphia Police Use Social Media to FindPotential Suspects, PHILA. CRIM. L. NEWS (Mar. 3, 2011), www.philadelphiacriminallawnews.com/2011/03/philadelphia-police-use-social-media-to-find-potential-suspects.html.

104. See Jennifer Steinhauer, Verdict in MySpace Suicide Case, N.Y. TIMES,Nov. 26, 2008, at A25, available at www.nytimes.com/2008/11/27/us/27myspace.html.



over her listing her Facebook status as “single” received a sentence ofeighteen years.105

Several courts have dealt with motions filed by parties based onthe fact that sitting jurors accessed information about the case fromoutside sources, in particular from Internet sites. In United States v.Hernandez,106 a federal court in Florida granted a motion for mistrialafter learning that several members of the jury had located andread key information about the case online. In United States v.Siegelman,107 the U.S. Court of Appeals for the Eleventh Circuit affirmeda lower court’s denial of a request for mistrial where a juror had viewedan unredacted version of the original indictment against the defendanton the court’s website. The appellate court reasoned that the access didnot expose the jury to any new or additional facts and, therefore, did notprejudice the defendant.

In December 2014, the U.S. Supreme Court heard oral argumenton whether an individual’s posts on Facebook can rise to the level ofcriminal threats.108

During sentencing hearings, social networking sites can be used tolocate less-than-flattering photos of defendants that are then offered ascharacter evidence by prosecutors seeking harsher punishments.

As is the case in criminal matters, lawyers in civil matters also findsocial networking sites a fertile ground for information about adverseparties and witnesses. Because attorneys can assume that such aninvestigation of their clients and witnesses will be undertaken byopposing counsel, they should be prepared for what may be lurkingon those parties’ social networking profile pages.

As to whether social networking profiles are discoverable, a Canadiancourt has answered this question affirmatively. In Leduc v. Roman,109

the court allowed pretrial discovery of a party ’s Facebook profile. Theplaintiff had brought an auto negligence action and the defendantsought information from the profile relevant to the question ofwhether the accident had impacted his ability to participate in his

105. See Man Killed Wife in Facebook Row, BBC NEWS (Oct. 17, 2008), http://news.bbc.co.uk/2/hi/7676285.stm.

106. See Criminal Minutes, United States v. Hernandez, No. 07-60027-CR (S.D. Fla. Mar. 10, 2009), available at http://pub.bna.com/eclr/07cr60027_31009.pdf.

107. United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009).108. Elonis v. United States, 134 S. Ct. 2819 (2014). The transcript of the

proceedings is available at www.supremecourt.gov/oral_arguments/argu-ment_transcripts/13-983_bq7d.pdf.

109. Leduc v. Roman, No. 06-cv-3054666PD3, 2009 CarswellOnt 843 (Ont.Super. Ct. Feb. 20, 2009), available at www.lawsonlaw.ca/leduc-v-roman-facebook.


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regular activities. The court further stated that the plaintiff ’s privacysettings were irrelevant and that the profile information constituted“data and information in electronic form” discoverable under Canada’sRules of Civil Procedure. U.S. courts have also allowed discovery of aparty’s social media accounts where the information may be relevantto specific allegations or damages at issue in the case.110

A wrongful death plaintiff and his attorney were sanctioned fordeleting photos and other content from the plaintiff ’s social mediapages following the defendant’s request for the pages.111

110. See, e.g., Higgins v. Koch Dev. Corp., 2013 WL 3366278 (S.D. Ind. July 5,2013) (permitting production of Facebook content, as it “may revealinformation as to the extent [of claimed personal] injuries”); Kear v. Kohl’sDep’t Stores, Inc., 2013 WL 3088922 (D. Kan. June 18, 2013) (allowingemployer discovery of “Plaintiff ’s Twitter and Facebook account databetween her date of hire through present” relating to employment dis-crimination claims).

111. Final Order, Lester v. Allied Concrete Co., 80 Va. Cir. 454 (Cir. Ct. Va.Oct. 21, 2011).



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