Can you be sued for trash-typing on a Facebook page? Answer: “it depends on the circumstances.” The bottom line for defamation is whether or not a false statement of fact was published (or spoken) and caused damage to the libeled party. Voicing an opinion about a person, business, event or political viewpoint is not defamatory.
Not Defamatory: I hate Jane Doe! IMO, She is a terrible choice for CEO.
Defamatory (if it’s not true): James Doe lied about that Widget deal and he stole trade secrets from his last startup partner. Don’t make him CEO.
Facebook Defamation Case Study: Local v. Local Luminary
Currently, a Facebook defamation case is going down in Tennessee. Beth York, a local Thompson Station, TN resident, posted several disparaging quips about local luminary, Donnie Cameron, on the I heart Spring Hill (TN, ya’ll!) Facebook page.
Online Accusations Lead To Facebook Defamation Lawsuit
What did York say? That Cameron was a “criminal” who was asked to leave the University of Tennessee Boosters. Unamused, Cameron slapped York with a lawsuit claiming libel, tortious interference with business relations and false light invasion of privacy.
Smartly, in addition to the lawsuit, Cameron also moved for a temporary restraining order. As such, the offending material was removed from the Internet for the duration of litigation. Now, regardless of the outcome, the offending material isn’t growing online “roots” and causing more damage to his reputation.
Defendant Fires Back With A Motion To Dismiss Facebook Defamation Claim
York filed for a summary judgment dismissal; she swears she’s telling the truth. And remember, in 95% of cases, if the statement in question is true, it’s not defamation.
We won’t hear much about this case moving forward because the judge issued a gag order, preventing both parties from pleading their case in the court of public opinion.
What Will The Plaintiff Have To Prove To Win This Facebook Defamation Lawsuit?
Since defamation requires one party to make a false statement of fact about another party, in order to win this case, Cameron will have to prove that York lied and committed Facebook defamation.
What happens if the critical information is true?
Interestingly, according to various sources, Cameron does have a bit of a past. In fact, way back in the day (1992), he spent 5 months behind bars because of a less-than-legal gambling operation.
But his jail stint happened fifteen years before Cameron was asked to step down from the University of TN boosters for allegedly “inappropriately contacting a signee.” Plus, it doesn’t seem like the Boosters were (or are) too saddened by the incident, as Cameron only had to keep away for two years, and was welcome back with open arms.
What Usually Happens When Facebook Defamation Strikes?
How many instances of Internet libel result in full-blown trial? Not many. Truth be told, the majority of Facebook defamation cases end with an initial letter from a lawyer. Why? Because most people don’t want to bother with a lawsuit and will simply remove the offending material when formally asked to do so.
When looking for a lawyer to handle your case, it is more important to find one who has successfully handled other Facebook defamation lawsuits than it is to find one in your area. Get in touch today to get started. Your reputation is in the balance.
While Facebook has made efforts, the social media giant isn’t exactly concerned with online privacy. Bottom line: advertising is the company’s cash cow — and effective advertising involves pinpointing consumers’ personal interests, and then offering up relevant ads. So how does one go about deciphering consumers’ desires? Why by keeping track of their online activity, of course. And in order to keep tabs on prospective buyers, online privacy laws must be slack enough to allow for customer identification and tracking. As such, every so often Internet companies tweak their privacy policies to make way for new marketing opportunities. Facebook recently made changes to their terms – and the changes have privacy stalwarts crying foul.
Facebook’s Online Privacy Track Record = Abysmal
Since going global, Mark Zuckerberg’s production hasn’t exactly earned a gold star for their online privacy efforts. Most notably, back in 2007, the social networking giant unleashed Beacon, a feature which displayed users’ online purchases in their timelines.
Facebook made a big mistake with Beacon – huge – by:
- Not alerting people of the feature; and
- Making Beacon opt-out default, causing it to “go live” unbeknownst to users;
Adding fuel to the fire, at the time, Facebook’s privacy settings were so confusing that folks couldn’t figure out how to turn Beacon off. To give you an idea of the calamity the program caused: Beacon foiled one guy’s engagement plans.
For some time, the status quo prevailed, privacy wise, on Facebook. Then several weeks ago, Facebook announced an impending change of their policy. It caused a stir.
Most notably, the company changed a passage concerning minors’ use of the platform. In the new version, the language used assumed that people under the age of 14 had an in-depth pow-wow with their parents about the dangers and privacy concerns of Facebook, and then had gotten permission to join the platform.
Needless to say, the parent peanut gallery cried foul, as did online privacy advocates. Folks were fuming because it seemed as if Facebook was trying to skirt compliance with the Children’s Online Privacy Protection Act – and a host of state laws regarding minors’ use of social media and privacy.
Facebook Staff Swears They Were Just Trying To “Start A Conversation”
According to Facebook, though, “the [new] language was about getting a conversation started.”
Did the word “disingenuous” just pop into your head? Yeah, you not alone. If Facebook wanted to jumpstart a conversation about minors’ online privacy, the company could easily have:
- Orchestrated a conference and panel discussion;
- Set up a website which explored the issue;
- Put a link at the top of their GUI inviting everyone to join a forum to discuss the issue;
- Sent out a press release requesting feedback.
Whatever conversation Facebook was trying to start never got off the ground because users were not having it. When the clamor reached fever pitch, Facebook finally backed down, claiming, “We were not seeking and would not have gained any additional rights as a result of this addition. We received feedback, though, that the language was confusing and so we removed the sentence.”
If it had worked, it may have been the legal loophole maneuver of the year. Better luck next time, Palo Alto.
A US district judge has ordered a new trial in a Virgina kennel lawsuit. Why the new suit? The kennel owner may have engaged in jury misconduct. The plaintiff in that trial, Russell Ebersole, won a $30,000 settlement against Bridget Kline-Perry, who accused him of animal abuse. Kline-Perry’s accusations were made in the form of Facebook comments, which led to the libel suit by Ebersole, who sought $1.35 million in damages. Ebersole denied the abuse and claimed Kline-Perry was trying humiliate and discredit him.
Judge Vacates Previous Facebook Defamation Kennel Lawsuit
Judge James C. Cacheris explained the vacated September 2012 jury decision by citing recently obtained, “highly negative” video evidence that prevented the defendant from properly making her case at trial. According to reports, the videos show Ebersole kicking a dog and yanking on its leash hard enough to cause it to cry in pain. He also allegedly used a leash to lift a puppy off its feet and violently shake and swing it. The taped incidents supposedly occurred at Aberdeen Acres Pet Care Center, located in the town of Stephenson. Ebersole owns the center.
The videos were obtained by Steven Bancroft, who is Kline-Perry’s defense attorney, after authorities in Frederick County charged Ebersole with 13 counts of cruelty to animals. Despite a subpoena, the videos were not made available to Kline-Perry at the time of the trial. Ebersole is the creator and owner of the videos, which had been seized by local officials. Judge Cacheris explained that since Ebersole failed to inform Kline-Perry or her attorney about the videos during the discovery phase, he was engaging in misconduct.
Plaintiffs in the Kennel Lawsuit Are Not Pleased With The Judge’s New Decision
Ebersole’s attorney, Andrew Bodoh, stated that he was displeased with the judge’s decision and will most likely file an appeal against a new trial in the kennel lawsuit case. Bancroft said that in his three decades of law practice, he had never seen a judge vacate a jury decision without a very good reason.
Judge Cacheris has encouraged Ebersole and Kline-Perry to attempt to reach a satisfactory settlement outside of court. If that does not take place, the new trial is scheduled begin on September 10, 2013.
Neither Ebersole nor his attorney could be reached for further comment.
Several months ago, a Virginia judge ruled against a deputy sheriff who said he was fired for Facebook “liking” his boss’ election opponent. The judge in the case declared that clicking a “like” button does not constitute “speech,” as nothing was actually spoken.
Plaintiff Daniel Ray Carter appealed the ruling. And now, Facebook is supporting the once deputy sheriff by way of an amicus brief arguing that a “like” is the 21st century version of a political bumper sticker.
Main points from the Facebook brief:
- When a user likes something on Facebook, a picture of the “liked” thing, and usually some accompanying text, appear on the user’s profile. As such, when Carter liked Adams’ Facebook page, the words “Jim Adams for Hampton Sheriff” and a picture of Jim appeared on Carter’s page – much like a “vote for” lawn sign. Conversely, Carter’s name and photo appeared on the campaign’s Facebook page in a list of people who supported Adams, further proving that he was a political supporter of the sheriff’s opponent.
- Symbolic speech, like arm bands and flag burning, are considered free speech; therefore, Facebook “likes” should also qualify.
- “If Carter had stood on a street corner and announced, ‘I like Jim Adams for Hampton Sheriff,’ there would be no dispute that his statement was constitutionally protected speech.”
Also, deposed co-workers said they knew Carter would be “out of there” when news broke of his support for Adams.
Facebook’s brief is comprehensive and includes lots of supporting case law, from Givhan v. Western Line Consol School District (1979) to Adams v. Trustee of the University of North Carolina-Wilmington (2011). The social media company’s argument is cogent and most likely will go a long way in getting the current ruling over turned.
In addition to Facebook, The American Civil Liberties Union also filed a brief in support of Carter.
This is a case to keep an eye on. To stay abreast of the latest, sign up for our Internet law newsletter today.
Celebrity defamation lawsuits differ from slander and libel cases launched by private citizens. This easy-to-understand legal introduction to celebrity defamation will give you a better understanding of why it’s so difficult for famous people to win defamation lawsuits.
Defamation laws in the United States feature different standards for celebrities and private citizens. Simply put, public figures must prove “actual malice” in order to emerge victorious in a defamation lawsuit.
What Should Celebrities Do If They Are Defamed?
If you are a celebrity – minor or major – a public official, or somehow considered to be a “public figure,” it’s important to follow the step below if you are defamed.
Celebrity Defamation Step #1: Contact a qualified defamation attorney who has handled high-profile suits in the past. If the defamation happened online, it’s best to find a lawyer who also has considerable experience with Internet law.
Celebrity Defamation Step #2: Make sure to collect any and all material you feel is defamatory. If the material is online, make hard copies of the web pages where the content appears. Make an effort to save the material electronically, as well. (If you don’t know how to save electronic data, a tech savvy defamation lawyer will be able to help you.)
Be sure to do a search and take note of all the websites on which the content appears. Information has a way of going viral – the further you can prove that the disparaging statements spread, the better. If the defamation was published in a newspaper or other periodical, be sure to buy several copies of each publication. If the incident was broadcast over the radio, TV or at a public event, do your best to get a hold of either the audio or video of the incident and make additional copies.
Celebrity Defamation Step #3: Meet with your defamation lawyer ASAP. The quicker they can get the slander or libel lawsuit rolling, the quicker the situation can be cleared up – and do the least amount of damage to your reputation.
Your defamation attorney will go over the pros and cons of filing a celebrity defamation lawsuit. They’ll help you figure out if the hassle is worth the effort and explain the proper way to answer press questions about the matter. Moreover, your counsel may be able to broker a settlement with the offending party before the satiation spirals out of control.
It’s important to be 500% honest with your lawyer in these first meetings. If you aren’t, any withheld information or prevarications could result in an anti-SLAPP counter-claim.
Once your attorney begins the litigation process, the case will proceed based on the evidence and nature of the case.
Celebrity Defamation In The 21st Century
The interesting thing about celebrity defamation in the Internet Age is that lines between celebrity and laymen are becoming ever more blurred. With the proliferation of reality television shows, it sometimes seems like nearly half the population will eventually have their own “show.” Moreover, the nature of social media creates a large gray area when it comes to who qualifies as “famous.” In fact, in a recent California ruling, the judge declared that “everybody is famous on Facebook.” Granted, the California case dealt with intellectual property and rights of publicity, but legal precedence is legal precedence – and if the standard is not reversed, the decision could spark a major shift in online defamation law for private citizens.
Whether you are a celebrity or private citizen, Kelly / Warner law can assist with all your defamation lawsuit needs. We’ve successfully represented hundreds of individuals and businesses with various defamation and false light legal actions. We know every inch of slander and libel law, and possess significant expertise in the area of Internet law – a fact our clients find helpful since most defamation cases these days involve the Internet.
Contact us today to begin the conversation about remedying your defamation legal issue.
A few weeks before Facebook’s now infamous IPO landed with a thud, a California-based tech company – Sambreel Holdings, which operates PageRage, Yontoo LLC and Theme Your World LLC – filed an antitrust claim against the now publicly traded, lawsuit-laden social networking company.
While the PageRage v. Facebook showdown has been months in the making, in the midst of insider-trading rumblings and a tumbling stock, you can bet the Menlo Park media giant ain’t happy about this added legal headache. (Not to mentionthe potential revenue loss Facebook may see in the near future if apps like LilyJade continue to gain popularity).
Regardless, the outcome of this lawsuit – which has both antitrust and online marketing legal implications – has the potential to significantly shape the Internet advertising and app development market.
PageRage and Facebook: The Background
An add-on for Facebook, PageRage is an app/toolbar that allows users to customize the look of their Facebook walls. PageRage first launched in 2008, and by 2010, the company was pulling in nearly $1 million a month. A station-specific program, PageRage does not interact with Facebook servers and computers, but instead only affects the computer on which it’s installed.
At first, Facebook and PageRage folks enjoyed a cordial relationship. PageRage responded to requests made by Facebook with regards to the program, and everyone was happy.
But according to Sambreel’s claim, things began to change when PageRage climbed the online advertising charts and threatened Facebook’s revenue model. After all, the plugin offered advertisers a low-cost marketing alternative. The lawsuit avers that “Rather than compete with Sambreel on the merits, Facebook pursued an anticompetitive scheme designed to eliminate Sambreel as a competitive threat.”
What PageRage’s Anti-Trust Lawsuit Alleges
PageRage’s lawsuit reads like a scene out of the movie “Weapons of Mass Distraction.” According to PageRage’s claim, Facebook:
1) Pressured developers not to do business with PageRage or their advertising partners and black-balled those who did;
2) Organized a group boycott in an illegal effort to maintain their monopoly of the online advertising marketplace;
3) Unlawfully scanned users’ computers, and then denied access to Facebook to those who had the Yontoo platform on their system
In addition, Sambreel avers they’ve suffered considerable financial loss since Facebook began their alleged market assault, forcing executives to lay-off half the staff and halt new projects in development.
PageRage is suing for per se illegal group boycott, per se illegal tying, monopolization, attempted monopolization, unfair business practices, intentional interference with contract, and intentional interference with prospective economic advantage. The lawsuit also demands a jury trial.
PageRage v. Facebook Lawsuit: The AntiTrust Claims
Anti-competitive laws in the United States aim to protect both market competition and consumers. Sambreel argued antitrust statutes in their claim against Facebook since the app company believes the social networking company’s actions unfairly prevented and reduced market competition.
The choice to go the anti-trust route, however, could be PageRage’s ruin. Why? Quite simply, there has been a philosophical shift in the way many legislators and decision makers view monopolistic enterprises and anti-competitive complaints.
PageRage v. Facebook Lawsuit: What Is All This “Illegal Per Se” Stuff About?
Illegal per se is a legal concept which means a given act is inherently illegal. As such, circumstantial defense arguments have no bearing on the claim. For example, many states have drunk driving laws with per se elements – so no matter the circumstances, if you get caught driving with a blood alcohol content over a certain limit, that’s that. Another example is defamation per se.
Many anti-trust lawsuits deal with “per se” claims since various methods used to maintain a monopoly – like price fixing, price maintenance, group boycotts, tying and geographic market division – can philosophically be considered inherently illegal and thereby present unreasonable restraints on trade.
Over the past several decades, however, a new attitudes toward antitrust restrictions have changed. In line with Rand’s Objectivist philosophy (which really is the basis for the current-day, ultra-pro-capitalist movement), many law- and opinion-makers feel antitrust laws discourage businesspeople from “activities that might be socially useful out of fear their business actions will be determined illegal and dismantled by government.”
As such, certain standards must be met for a plaintiff to emerge victorious in an antitrust lawsuit. Namely, two legal standards are almost always applied to monopolistic claims:
- The action in which the claim is based must “facially appear to be one that would always or almost always tend to restrict competition and decrease output.”
- The action or practice in question is not designed to “increase economic efficiency and render markets more, rather than less, competitive.”
Moreover, market conditions are carefully examined during antitrust deliberations, and judges usually ere on the side of defendants — especially if they’re engaging in a “new or innovative business relationship” with either the public or another company.
However, Sambreel did make “per se” claims — so I guess we’ll just have to see if a judge rules them legitimate and moves forward on the basis of inherent illegality.
Arie Trouw, CEO and president of Sambreel kicked off the legal battle with a statement: “In addition to violating the law, we think Facebook’s actions – particularly its gating – violate its own first guiding principle: ‘People should have the freedom to share whatever information they want, in any medium and any format, and have the right to connect online with anyone – any person, organization or service – as long as they both consent to the connection.’”
In other words: PageRage v. Facebook = Internet anti-trust lawsuit, battle royal.
Uh oh, looks like someone indulged in a little armchair lawyering and launched one of the biggest Internet hoaxes of 2012. Beleaguered social media network Facebook anchors the controversy.
The hoax involves an inaccurate privacy disclaimer that went viral within a few days of Facebook going public. What is the gist of the faux notice? Well, it says that if you post a legal-sounding disclaimer (generously provided free of charge) on your timeline, then the government won’t be allowed to disseminate your content. The notice also averred the faux statement became legal the moment Facebook became a publicly-held company.
- Legally speaking, there are no United States laws, yet, which allow Internet users to assert their own privacy rights on a platform controlled by someone else. (In fact, the word “privacy” doesn’t even appear in the U.S. Constitution.)
The Truth About Your Privacy And Facebook
At the end of the day, the bottom line is that United States citizens have very little control over their online privacy. While strides are being made by many of the larger Net-based corporations in terms of Internet privacy and data security, there are no national laws that safeguard our personal penetralia. The most any state-side user can do is take advantage of the available privacy settings on websites like Facebook, Google and Twitter; because at the end of the day, if you initially clicked yes on the TOS to join, then you agreed to their rules.
European users, on the other hand, enjoy a bit more government-mandated online privacy. In fact, as of May 31, 2012, every website in the UK must get consent from users to use tracking cookies. Still, Facebook earned their “safe harbor” privacy certificate, which means their policies comply with stricter EU privacy directives. So, unless the social media network is engaging in some shady behind-the-scenes trickery, in the eyes of the law, they’re complying with all mandatory privacy standards.
So what is the true moral of this story: if you are very concerned about your privacy, don’t set up an account on any social media sites – including Facebook, Twitter and Google.
For those of you who do not understand the reasoning behind this posting, Facebook is now a publicly traded entity. Unless you state otherwise, anyone can infringe on your right to privacy once you post to this site. It is recommended that you and other members post a similar notice as this, or you may copy and paste this version. If you do not post such a statement once, then you are indirectly allowing public use of items such as your photos and the information contained in your status updates.
PRIVACY NOTICE: Warning – any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated websites, you do NOT have my permission to utilize any of my profile information nor any of the content contained herein including, but not limited to my photos, and/or the comments made about my photos or any other “picture” art posted on my profile.
You are hereby notified that you are strictly prohibited from disclosing, copying, distributing, disseminating, or taking any other action against me with regard to this profile and the contents herein. The foregoing prohibitions also apply to your employee, agent, student or any personnel under your direction or control.
The contents of this profile are private and legally privileged and confidential information, and the violation of my personal privacy is punishable by law. UCC 1-103 1-308 ALL RIGHTS RESERVED WITHOUT PREJUDICE
While my cynical side says the changes were all CYA initiatives, the truth is that the policy alterations aren’t only a vanity play. In fact, the changes were in large part prompted by an edict put forth by the Irish Data Protection Commissioner, who laid out several online privacy points Facebook would have to rectify in order to qualify for the EU Safe Harbor list.
All that said, the changes also knock down several information-sharing barriers, which will allow Facebook to grow, grow, grow and share, share, share (your data…that is) for revenue!
Before we get to the juicy stuff, let’s get the mundane language-clarifying/housekeeping changes out of the way.
- The word “post” has been largely replaced with “timeline.”
- Facebook’s European Union Safe Harbor certification was added.
- New language and explanations were added about the “activity log” functionality.
- Actual addresses of where you can snail-mail questions and concerns have been added.
Now let’s get to the points that online privacy pundits (both professional and armchair) will be talking about over the next four weeks.
Your Private Life Is at the Mercy of Your Facebook Friends’ Whims
“Although you choose with whom you share, there may be ways for others to determine information about you. For example, if you hide your birthday so no one can see it on your timeline, but friends post “happy birthday!” on your timeline, people may determine your birthday.”
They also point out that if you originally comment on a story/post that your friend had marked private and your friend later decides to make said story public, any comment that you left on the story will also become public. In other words, never write anything on Facebook you wouldn’t ever want becoming public knowledge, even if your friend swears up, down, backwards and forwards that they will never make the story public; if you don’t want to kick yourself down the line, don’t post any thoughts or pics you want to remain private now – or ten years from now.
Ummm, We’re Gonna Stalk You, K?
Sharing Is Caring (And A Great Way To Raise Revenue) So We’re Going To Do A Lot Of It
- Your information can be used for “internal operations, including troubleshooting, data analysis, testing, research and service improvement.”
- Facebook is allowed to make photo tag suggestions based on your data.
- Apps you visit or use will be supplied with your age so they can serve up age appropriate content.
- Pretty much everything you do and share on Facebook can be used to target ads to you.
A few weeks ago we dissected Google’s new policy, so it’s only fair that we give Facebook’s new terms the same treatment. Ready?
Precision Language Changes: It’s All in the Definition
In addition to purging privacy from the disclosure “shingle,” the new policy also amends “hateful speech” to “hate speech” (a legal distinction, as the First Amendment of the U.S. Constitution prohibits laws that restrict hate speech); a “profile” is now an “account”; “share links” are now “social plugins”; instead of claiming that they “do” have systems that detect and filter certain suspicious click activity,” now they have systems that “attempt to detect and filter certain click activity (yep, suspicious is gone, which means they can attempt to detect and filter ALL click activity).
To see a fully tracked document of the changes, click here. Cynthia Boris did an excellent job of marking up the Facebook policy changes.
Sharing is Caring – And It Looks Like They Plan To Do A Lot Of It
Undoubtedly, the Facebook policy change that will have people throwing shade is the following:
“When you or others who can see your content and information use an application, your content and information is shared with the application. We require applications to respect your privacy, and your agreement with that application will control how the application can use, store, and transfer that content and information.”
In other words: if you’re friends use certain apps (ones that you may not want anything to do with) your information can be sent to the developer of said app. For example, let’s say your father is a fan of the NY Giants and you’re a NY Jets fan; if you’re connected to Pops through Facebook, and he downloads a Giants’s app, that app can also collect data from you.
Each app, of course, also has their own privacy rules. So, if you want to prevent your info from being passed from app to app to app, then you can (a) shut down your Facebook account, (b) learn how to read privacy policies quickly and get really good at writing mail-in opt-outs when necessary, or (c) shrug your shoulders and keep using Facebooks’ free service.
What Facebook Has The Right To Do With Your Intellectual Property
Apart from some tidying language, Facebook’s new Data Use Policy hasn’t altered the intellectual property rights section all that much.
That being said, it never hurts to review what rights an online platform claims to users’ copyrighted and trademarked material.
In the case of Facebook, if you post your own copyrighted material on their site, then you’re agreeing that Facebook has global, non-exclusive, transferable, royalty-free, sub-licensable rights to said work until you delete it or your account. However, if you shared the protected work with others on Facebook, and they don’t delete it, then Facebook still retains the above rights even if you delete the work from your account.
So what rights does a “non-exclusive, transferable, royalty-free, sub-licensable license” afford Facebook? It means you grant them the shared right to use your copyrighted material, without having to pay, with anyone in the world. In addition, it means that they can also grant others the right to use your material, so long as it can be found somewhere on their platform. (Something you may want to think about considering the company is going public very soon.)
Now, it should be noted that all the above is subject to your own privacy settings within the network. So, if you haven’t already, now is a good time to acquaint yourself with all the account settings.
Depending on your online privacy position, this all my sound scary; but at the end of the day, if our thirst for free platforms persists, then expect more and more online operations to move in this direction – after all, they, too, have to “bring home the bacon” somehow…because if they don’t, the economic winter we’ve been experiencing here in North America for the past 5 years may never end.
At the end of 2011, a California court reached a ground-breaking decision. The case was Fraley, et al. v Facebook. The matter at hand was whether or not Facebook’s “sponsored stories” infringed on various state and federal rights, including “rights of publicity.” The court’s ruling is significant because their decision means Facebook users are now legally considered “famous to their Friends” – a declaration with Internet law implications.
What Is Right of Publicity?
Essentially, “right of publicity” regulations forbid entities to use an individual’s name or likeness without said person’s express consent. For example, a company selling widgets can’t slap Bill Gates’ picture on an advertisement without getting permission from the Microsoft founder first. Neither can they put a testimonial from Gates on their marketing material without consent.
Notable exceptions to publicity rights exist. First and foremost, publicity rights are state-based and only 19 currently acknowledge the tort. Moreover, newsworthiness trumps publicity rights; as a result, many defend charges by arguing the given matter was of interest to the public. Legal precedent also says that people seeking public office and criminals forfeit their right to these types of privacy protections when stepping into the limelight willingly or through illegal acts.
How Sponsored Stories Work On Facebook
If you’re one of the millions with a Facebook account, then you’ve probably seen a sponsored story or ten. They’re the advertisements along the sidebar. Sponsored stories are usually coupled with images of Facebook users who’ve “liked” the thing being advertised.
What you may not know is that there’s no way to universally opt-out of seeing sponsored stories (you can close them individually). You also can’t opt-out of appearing in them.
Plaintiffs’ Claims Right of Publicity Claims
The group suing Facebook over “sponsored stories” claim the program violates California’s right of publicity statutes. Claimants are using the fact that the price of a standard Facebook advertisement is significantly less than a sponsored story. In essence, the Plaintiffs are saying, “hey look, We’re ‘famous’ to our friends on Facebook, so Facebook can’t use my likeness without financially compensating me.”
In the lawsuit, in addition to California’s Right of Publicity statute, the petitioners argue Facebook is in violation of California’s Unfair Competition Law, various common law regulations, the Business and Professions Code and doctrines of unjust enrichment.
Facebook’s defense is simple: What people are “liking” on social media sites is newsworthy. And since the Plaintiffs are also claiming their own “fame,” Facebook may very well throw the claimants argument back in their faces for the win.
Will The Internet Change Test Right of Publicity Statutes?
Newsworthiness is the legal axis on which publicity laws balance. As we continue to embrace a gadget-friendly, user-generated existence, the elusive line of what constitutes online privacy will continue to be questioned. Does a person with a one-hit viral video forever give-up their right to privacy? Will every person with a cat blog be considered “famous” or “newsworthy”? Moving forward, courts will be forced to answer the age-old question as to how “newsworthy” is defined in the eyes of the law. Is it anything people are interested in? Or is it something that judges define? Either way, the result could prove problematic if taken to the extreme.
The California court denied Facebook’s request to dismiss the case all together, but they did rule that Facebook users, are, indeed, “famous” to their friends. (So, if you’re one of those people who thinks of yourself as a celebrity, now you can say the US Courts agree.) The judge also threw out the claim that Facebook was “unjustly enriched.”
The implications of this Facebook lawsuit are huge. After all, as Mark Zuckerberg said, “trusted referrals” are the “Holy Grail of Advertising” – and if companies can get the courts to agree that “everyone is famous and therefore newsworthy” the online legal landscape could be forever altered in ways that privacy stalwarts will find alarming.
At the end of January, 2012 news hit the wires that Facebook was involved in another lawsuit. But this time around, it wasn’t angry consumers or countries suing the technology firm, oh no, this time around, it was Facebook who was doing the suing. In conjunction with Washington State Attorney General, Rob McKenna, in late January 2012, Zuckerberg’s lawyer’s filed claims against Adscend Media. The accusations? Engaging in illegal “likejacking.”
What is Likejacking?
Like its predecessor, clickjacking, likejacking is the practice of getting someone to click on something ostensibly deceptive, which causes a different action than what the user thinks they’re initiating. Since Facebook has become the social networking powerhouse, many affiliate marketers use techniques to market products on the platform. A popular method is “likejacking,” which helps to augment the number of likes in a short period of time.
Who is Adscent Media?
Delaware-based Adscent Media is the target of this double-pronged suit. Adscent Media would probably describe themselves as an online marketing and ad firm, while Facebook and the Washington AG may use something more like “spam promoter.”
The Lawsuits Against The Likejackers
McKenna filed his papers with the U.S. District Court in Seattle. The claim argued that Adscent violated the CAN-SPAM Act, Washington State’s Consumer Protection Act, which guards against deceptive business practices, and the state’s Commercial Electronic Mail Act – a bill that makes illegal “the misrepresentation or obfuscation of origin points or transmission paths in electronic communications.”
Facebook’s lawsuit was filed separately in a Northern District of California Federal Court, but the details weren’t discussed in the initial announcement. Facebook’s lead litigation counsel, Craig Clark, did warn: “Facebook’s security professionals have made tremendous strides against this particular form of attack and we are intent on eradicating it completely.”
Wondering about the legality of your online marketing techniques? Aaron Kelly is an Internet lawyer very well-versed in the “technicalities” of tech law. Get in touch and he’ll make sure your operation stays on the right side of the law…innovatively.
Pinterest, a new-ish social network, like Facebook and Google before them, is settling in for, what looks like, a long ride on the copyright infringement controversy train . Long and bumpy though it may be, the ride is sure to be fraught with less-than-positive publicity — but as they say in the business: there’s no such thing as bad publicity.
What is Pinterest?
Pinterest is essentially the Internet’s refrigerator door. People can “pin” their pictures, recipes, artwork and homemade homilies for all to see. Think of it, also, as your own virtual bulletin board where you can “pin” things found online. Say you see a recipe on a website or a picture of a unicorn that you want to save. With the Pinterest pin, which becomes attached to your browser toolbar after signing up, you pin the recipe or image and it’s saved in your Pinterest account.
Like many social media sites, the pervasive attitude in the Pinterest community is “sharing (and admiring the works of others) is caring.”
Currently, if you want to be a pinner, you either have to be invited by an existing pinner or submit your request to be invited. Yes, there is a waiting line.
Pinterest’s Copyright Infringement Problem
The only fly in the Pinterest ointment, at this point, seems to be the pesky issue of copyright infringement — and it has to do with the way Pinterest is structured. Simply stated, the platform doesn’t make it easy to find the original owners of images.
When an admiring fan of your latest card trick pins it to their Pinterest account and it gets repinned by subsequent fans, your copyrights to the photo might get lost in the shuffle. While that may not be a big deal to some, you’ve just lost your ace-in-the-hole ticket to international card trick stardom. Instead, Johnny Magician has just announced his upcoming appearance on the Letterman show where he’ll be featuring the trick you created.
Google Sets Online Copyright Infringement Precedent
Back in 2006, Google was taken to court for copyright infringement over thumbnail images that weren’t properly attributed to their rightful copyright owners. But Google was vindicated the next year, which set legal precedence. As a result, ironically enough, both sides of the Pinterest copyright infringement issue point to the Google case in their arguments.
The Pinterest supporters claim that Pinterest’s posting of images is no different than Google’s. The naysayers proclaim that since Pinterest’s images are full-size, full-resolution images, the situation is different and the laws that gave Google safe harbor don’t apply to Pinterest.
DMCA Copyright Infringement Avenues
Currently, Pinterest is following the rules outlined in the DMCA. When a complaint is found to be valid, Pinterest need only remove the image. Trying to trace the image back to its original poster is no easy task, especially when it’s been repeatedly repinned from one place to another. If that image is yours and it’s been repinned more often than a 70s Farrah Fawcett poster, you’ll need to fill out a formal DMCA Notice of Alleged Infringement. Pinterest will then take action as they see fit.
If You Upload It, You Better Own It
Here’s the current rule as outlined in Pinterest’s Terms of Service: if you upload something to Pinterest and they sell it, which they can do, and it subsequently becomes embroiled in copyright infringement litigation, which it could, guess who’s butt is on the line?
Even without malicious intent, it’s so easy for a Pinterest user to pin something that could be an unintentional infringement of the owner’s copyright. That fact doesn’t escape the vengeful eye of the SOPA supporters who are lurking on the sidelines.
We’ll see how this Pinterest copyright infringement issue turns out; in the meantime, if you’re in need of some copyright protection or enforcement, give the Kelly Law Firm a buzz.