Social Media and the Law

SOCIAL MEDIA AND THE LAW

• Mike Pinkerton• COO and General Counsel• Contract development and negotiations, compliance, and litigation• Engagement: Moderators, customer support agents, social media managers INTRODUCTION

PUBLISHER IMMUNITY

• 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 COMMON LAW DEFAMATION

• 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 PUBLISHER OR DISTRIBUTOR?

UPSHOT Responsible information providers whotried to moderate content faced liability while hands-off providers did not

DO SOMETHING!

“No provider or user of aninteractive computer serviceshall be treated as the publisheror speaker of any informationprovided by another informationcontent provider” SECTION 230 OF THE CDA

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 conferredimmunity from tort liability as anincentive to Internet serviceproviders to self-police theInternet for obscenity and otheroffensive material, even wherethe self-policing is unsuccessfulor not even attempted.” BLUMENTHAL V. DRUDGE

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

• 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 CARAFANO V. METROSPLASH

"So long as a third party willinglyprovides the essential publishedcontent, the interactive serviceprovider receives full immunity[under Section 230] regardless ofthe specific editing or selectionprocess.” CARAFANO V. METROSPLASH

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) FAIR HOUSING V. ROOMMATES.COM

“By categorizing, channeling andlimiting the distribution of usersprofiles, Roommate provides anadditional layer of informationthat it is "responsible" at least „inpart‟ 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-workersNLRB V. AMERICAN MEDICAL RESPONSE

• HELD: CASE SETTLED. • AMR promised to grant employees‟ requests for union representation and to revise its Internet and social media policiesNLRB 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 suitHISPANICS 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 interestHISPANICS 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

“Includes cyberbullying andaddresses those behaviors that„materially and substantially disruptthe education process or the orderlyoperation 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 MASSACHUSETTS LAW

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 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 COPPA RULE, 16 CFR PART 312

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).“Let‟s be clear: Whether you are a virtual world,a social network, or any other interactive sitethat appeals to kids, you owe it to parents andtheir children to provide proper notice and getproper consent. It‟s the law, it‟s the right thingto do, and, as today‟s settlement demonstrates,violating COPPA will not come cheap.” USA V. PLAYDOM, INC.

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?

Social Media and the Law

by Mike Pinkerton on Oct 28, 2011

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Social Media and the Law — Presentation Transcript