social media – Page 3 – Attorney Evan Brown

August 12, 2016 Section 230, Social Media

Twitter avoids liability in terrorism lawsuit

Update 1/31/2018: The Ninth Circuit upheld the court’s decision discussed below.

The families of two U.S. contractors killed in Jordan sued Twitter, accusing the platform of providing material support to the terrorist organization ISIS. Plaintiffs alleged that by allowing ISIS to create and maintain Twitter accounts, the company violated the Anti-Terrorism Act (ATA). Plaintiffs further claimed this support enabled ISIS to recruit, fundraise, and promote extremist propaganda, ultimately leading to the deaths of the contractors. The lawsuit aimed to hold Twitter responsible for the actions of ISIS and to penalize it for facilitating the organization’s digital presence.

Twitter moved to dismiss, arguing that the claims were barred under the Communications Decency Act (CDA) at 47 U.S.C. §230. Section 230 provides immunity to internet platforms from being treated as the publisher or speaker of content posted by third parties. The court had to decide whether Twitter’s role in allowing ISIS to use its platform made it liable for the consequences of ISIS’s acts.

The court dismissed the case, finding that Section 230 shielded Twitter from liability. The court ruled that plaintiffs’ claims attempted to treat Twitter as the publisher of content created by ISIS, which is precisely the type of liability Section 230 was designed to prevent. The court also concluded that plaintiffs failed to establish a plausible connection, or proximate causation, between Twitter’s actions and the deaths. Importantly, in the court’s view, plaintiffs could not demonstrate that ISIS’s use of Twitter directly caused the attack in Jordan or that the shooter had interacted with ISIS content on the platform.

The court further addressed plaintiffs’ argument regarding private messages sent through Twitter’s direct messaging feature. It ruled that these private communications were also protected under Section 230, as the law applies to all publishing activities, whether public or private.

Three reasons why this case matters:

Expanding the scope of Section 230: The case reinforced the broad immunity provided to tech companies under Section 230, including their handling of controversial or harmful content.
Clarifying proximate causation in ATA claims: The ruling highlighted the challenges of proving a direct causal link between a platform’s operations and acts of terrorism.
Balancing tech innovation and accountability: The decision underscored the ongoing debate about how to balance the benefits of open platforms with the need for accountability in preventing misuse.

Fields v. Twitter, Inc., 200 F. Supp. 3d 964 (N.D. Cal., August 10, 2016).

January 9, 2015 Anonymity, Defamation

Court orders Twitter to identify anonymous users

Defamation plaintiffs’ need for requested information outweighed any impact on Doe defendants’ free speech right to tweet anonymously.

Plaintiff company and its CEO sued several unknown defendants who tweeted that plaintiff company encouraged domestic violence and misogyny and that the CEO visited prostitutes. The court allowed plaintiffs to serve subpoenas on Twitter to seek the identity of the unknown Twitter users. Twitter would not comply with the subpoenas unless and until the court ruled on whether the production of information would violate the users’ First Amendment rights.

The court ruled in favor of the plaintiffs and ordered Twitter to turn over identifying information about the unknown users. In reaching this decision, the court applied the Ninth Circuit analysis for unmasking anonymous internet speakers set out in Perry v. Schwarzenegger, 591 F.3d. 1126 (9th Cir. 2009). The court found that the requested discovery raised the possibility of “arguable first amendment infringement,” so it continued its analysis by weighing the balance between the aggrieved plaintiffs’ interests with the anonymous defendants’ free speech rights.

The Perry balancing test places a burden on the party seeking discovery to show that the information sought is rationally related to a compelling governmental interest and that the requested discovery is the least restrictive means of obtaining the desired information.

In this case, the court found that the subpoenas were narrowly tailored to plaintiffs’ need to uncover the identities of the anonymous defendants so that plaintiffs could serve process. It also found that the “nature” of defendants’ speech weighed in favor of enforcing the subpoena. The challenged speech went “beyond criticism into what appear[ed] to be pure defamation, ostensibly unrelated to normal corporate activity.”

Music Group Macao Commercial Offshore Ltd. v. Does I-IX, 2015 WL 75073 (N.D. Cal., January 6, 2015).

July 22, 2014 Defamation, Privacy, Section 230

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.

March 1, 2014 Contracts, Evidence

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.

Defendant 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.

February 11, 2014 Copyright, Unfair Competition

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

The 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.

February 10, 2014 First Amendment

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.

Plaintiff (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)

February 6, 2014 Electronic Discovery, Evidence

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

Plaintiff 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)