social media – Page 5 – Attorney Evan Brown

November 17, 2011 Anonymity, Computer Crime, Copyright, Privacy, Section 230

Video: my appearance on the news talking about isanyoneup.com

Last night I appeared in a piece that aired on the 9 o’clock news here in Chicago, talking about the legal issues surrounding isanyoneup.com. (That site is definitely NSFW and I’m not linking to it because it doesn’t deserve the page rank help.) The site presents some interesting legal questions, like whether and to what extent it is shielded by Section 230 of the Communications Decency Act for the harm that arises from the content it publishes (I don’t think it is shielded completely). The site also engages in some pretty blatant copyright infringement, and does not enjoy safe harbor protection under the Digital Millennium Copyright Act.

Here’s the video:

November 9, 2011 First Amendment

Employee’s Facebook status update was protected by the First Amendment

Mattingly v. Milligan, 2011 WL 5184283 (E.D.Ark. November 1, 2011)

Plaintiff worked in the county clerk’s office. Her old boss, whom she had supported in the election, lost. Her new boss (the newly-elected county clerk) began cleaning house and laid off some of the staff. Plaintiff survived that round of cuts, but lamented those terminations in a Facebook status update. Empathetic comments from county residents ensued.

The new boss found out about the status update and the comments. So he fired plaintiff. She sued, alleging that the termination violated her right to free speech. The boss moved for summary judgment, but the court denied the motion, sending the case to trial.

Here is some of the relevant Facebook content:

Plaintiff’s status update: So this week not going so good bad stuff all around.

Friend’s comment: Will be praying. Speak over those bad things positively.

Plaintiff’s comment: I am trying my heart goes out to the ladies in my office that were told by letter they were no longer needed…. It’s sad.

* * *

Friend’s comment: He’s making a mistake, but I knew he would, too bad….

* * *

Friend’s comment: I can’t believe a letter would be the manner of delivering such a message! I’m with the others…they will find some thing better and tell them this is an opportunity and not a closed door. Prayers for you and friends.

* * *

Friend’s comment: How could you expect anything else from [defendant], he was an…well nevermind.

Courts addressing claims by public employees who contend that they have been discharged for exercising their right to free speech must employ a two-step inquiry: First, the court must determine whether the speech may be described as “speech on a matter of public concern.” If so, the second step involves balancing the employee’s right to free speech against the interests of the public employer.

In this case, the court found the speech to be on a matter of public concern because:

the statements were made in a “public domain”
those who saw the statements (many of whom were residents of the county) understood them to be about terminations in the clerk’s office
some of the comments contained criticism of the termination decision
six constituents of the new clerk called his office to complain
the press and media had covered the situation

As for the second step in the analysis, namely, balancing the employee’s right to free speech against the interests of the public employer, the court did not even undertake a balancing test, as there simply was no evidence that the status update and the comments disrupted the operations of the clerk’s office.

October 23, 2011 Employment, Litigation

Court requires fired social media employee to return usernames and passwords

Ardis Health, LLC v. Nankivell, 2011 WL 4965172 (S.D.N.Y. October 19, 2011)

Defendant was hired to be plaintiffs’ “video and social media producer,” with responsibilities that included maintaining social media pages in connection with the online marketing of plaintiffs’ products. After she was terminated, she refused to tell her former employers the usernames and passwords for various social media accounts. (The case doesn’t say which ones, but it’s probably safe to assume these were Facebook pages and maybe Twitter accounts.) So plaintiffs sued, and sought a preliminary injunction requiring defendant to return the login information. The court granted the motion for preliminary injunction.

The court found that plaintiffs had come forward with sufficient evidence to support a finding of irreparable harm if the login information was not returned prior to a final disposition in the case:

Plaintiffs depend heavily on their online presence to advertise their businesses, which requires the ability to continuously update their profiles and pages and react to online trends. The inability to do so unquestionably has a negative effect on plaintiffs’ reputation and ability to remain competitive, and the magnitude of that effect is difficult, if not impossible, to quantify in monetary terms. Such injury constitutes irreparable harm.

Defendant argued there would not be irreparable harm because the web content had not been updated in over two years. But the court rejected that argument, mainly because it would have been unfair to let the defendant benefit from her own failure to perform her job responsibilities:

Defendant was employed by plaintiffs for the entirety of that period, and she acknowledges that it was her responsibility to post content to those websites. Defendant cannot use her own failure to perform her duties as a defense.

Moreover, the court found that the plaintiffs would lose out by not being able to leverage new opportunities. For example, plaintiffs had recently hopped on the copy Groupon bandwagon by participating in “daily deal” promotions. The court noted that the success of those promotions depended heavily on tie-ins with social media. So in this way the unavailability of the social media login information also contributed to irreparable harm.

September 27, 2011 First Amendment

Online threats made by blogger were not protected by the First Amendment

State v. Turner, 2011 WL 4424754 (Conn. Super. September 6, 2011)

A Connecticut state court held that prosecuting a blogger for posting content online encouraging others to use violence did not violate the blogger’s First Amendment right to free speech.

Defendant was charged under a Connecticut statute prohibiting individuals from “inciting injury to persons or property.” Angry about a bill in the state General Assembly that would have removed financial oversight of Catholic parishes from priests and bishops, defendant posted the following statements to his blog:

[T]he Founding Fathers gave us the tools necessary to resolve [this] tyranny: The Second Amendment
[My organization] advocates Catholics in Connecticut take up arms and put down this tyranny by force. To that end, THIS WEDNESDAY NIGHT ON [my radio show], we will be releasing the home addresses of the Senator and Assemblyman who introduced bill 1098 as well as the home address of [a state ethics officer].
These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.
If any state attorney, police department or court thinks they’re going to get uppity with us about this, I suspect we have enough bullets to put them down too

Defendant challenged the application of the state statute as unconstitutional. The court disagreed, finding there to be “little dispute that the defendant’s message explicitly advocate[ed] using violence.” Moreover, the court found the threatened violence to be “imminent and likely.” The blog content said that the home address of the legislators and government officials would be released the following day.

Though the court did not find that a substantial number of persons would actually take up arms, it did note, in a nod to 9/11, “the devastation that religious fanaticism can produce in this country.” As such, there was a sufficient basis to say that defendant’s vitriolic language had a substantial capacity to propel action to kill or injure a person.

June 16, 2011 Evidence, Trademarks, Unfair Competition

Customer reviews on social media provide important evidence in trademark dispute

Chipotle Mexican Grill, Inc. v. Chipotles Grill of Jonesboro, Inc., 2011 WL 2292357 (E.D. Ark. June 9, 2011)

The awesome burrito place Chipotle sued another restaurant that called itself Chipotles for trademark infringement. Plaintiff sought a preliminary injunction. The court granted the motion.

One of the most important factors in the court’s decision to grant injunctive relief was the plaintiff’s showing that it will likely succeed on the merits of the case. In a trademark infringement action, that analysis takes the form of the likelihood of confusion analysis.

Among the factors that a court should consider in determining whether there is a likelihood of confusion is whether there has been any actual confusion among members of the consuming public. In this case, the court found that the evidence plaintiff submitted of actual confusion was “substantial.”

In addition to a number of emails that customers had sent to plaintiff, the court looked to a couple of customer review sites — urbanspoon.com and Yahoo’s associatedcontent.com — each of which contained customer reviews that erroneously linked plaintiff and defendant. The court found this to constitute actual confusion, which could not be remedied even through reasonable care on the part of the consumers.

The case gives a good example of how companies (and their competitors) should be aware of how their brands appear in social media. Evidence of actual confusion is a powerful tool for a trademark plaintiff (and a potentially damning one for a trademark defendant). Smart companies will ensure they remain aware of how their marks and overall brand identity are being put forth, even off the beaten path on the web.

Evan Brown is a Chicago-based attorney practicing technology and intellectual property law. Send email to ebrown@internetcases.com, call (630) 362-7237, or follow on Twitter at @internetcases.