Tag Archive for 'facebook'

Should Parents Be Liable for Their Child’s Creation of a Defamatory Facebook Page?

In Georgia, two seventh graders posted defamatory remarks about a classmate on a fake Facebook page that they created under her name. Their parents may be held liable for their actions once the parents learned of the account, and did not take measures to remove it. This is an unprecedented case that will decide whether parents should be held liable for their children’s activity on the internet.

cyberbullying parent liabilityThe students used a “Fat Face” app to twist the girl’s features out of shape, and made derogatory remarks about her. Per the court document, both students added material to the profile that mentioned that the girl held racist views and was a homosexual. They also had the fake Facebook page send invitations to the girl’s friends, teachers, and relatives. According to the court, the material on the fake Facebook page was “graphically sexist, racist, or otherwise offensive.”

When the girl’s parents found out about the fake Facebook page in the name of their daughter, they discussed the matter with the principal of the school. The two students responsible for creating the page admitted their involvement. They were then suspended from school for two days.

Even after the students’ parents were informed in writing of their children’s behavior, the fake Facebook page could be viewed for an additional 11 months, after which Facebook made the account inactive. It is the opinion of the court that during that time, the fake persona kept extending or accepting requests to become Facebook friends with more users, and that other users saw the page, and posted on it.

The judge ruled that the parents may be held liable for not compelling their son to remove the fake Facebook page that made possibly libelous remarks about the girl. According to the opinion of the judge, “Given that the false and offensive statements remained on display, and continued to reach readers, for an additional 11 months, we conclude that a jury could find that the [parents’] negligence proximately caused some part of the injury [the girl] sustained from [the boy’s] actions (and inactions).”

The case is now going to be tried in the lower court. Hopefully, the trial court will decide in the girl’s favor and hold the parents liable, thereby setting a new precedent that will deter other students from engaging in the same type of bullying behavior.

Social Media and Employer Discrimination: Are You Protected?

It’s no secret that employers look up the social medial profiles of job applicants. The Society for Human Resource Management found that recruitment through social media websites raised from 34 percent in 2008 to 77 percent in 2013. A quick glance at a person’s Facebook profile often tells more about that person than their formal resume.

social media employment discriminationProfiles on Facebook or LinkedIn include all kinds of personal information, including race, gender, age, and ethnicity. How do you know if a potential employer isn’t discriminating against you in the hiring process based on one of these factors? The unfortunate answer is, you don’t.

Since the Equal Employment Opportunity Commission can’t regulate employee discrimination online, the EEOC suggests companies use a third party to survey social media profiles. Using someone not involved in the hiring process will rule out the possibility of discrimination online.

Also, companies can only use public information on a candidate’s profile. Employers may not use private information while deciding who to hire. That means, if a person’s profile is private, an employer may only use information that everyone can see.

In order to increase employee privacy, seven states have enacted a bill that prohibits employers from requesting social media passwords: Louisiana, Maine, New Hampshire, Oklahoma, Rhode Island, Tennessee, and Wisconsin. Legislation for the same bill is pending or has been introduced in 28 states.

There is always risk of discrimination by a potential employer when recruiting on social media. To protect yourself, keep your profile private, and always think twice about what you post online.

The Right of Free Speech vs. Online Business Reputations

SLAPP Lawsuits and the Internet

In the mid-90’s, Oprah Whinfrey dedicated an entire episode of her talk show to the topic of mad-cow disease spreading around several countries, including the United States. Cattlemen in Texas formed a coalition, claiming that the show negatively affected future beef sales, and sued her in federal court on a tortious interference with business reputation claim. After spending an exuberant amount of money defending the suit, Whinfrey ultimately won, with the court finding that the cattleman failed to show she had made any false statements.

anti-slapp internet free speechSimilarly, in 2010, a towing company sued 21-year-old Justin Kurtz for creating a Facebook page dedicated to criticizing the company for wrongfully towing his car. This was a fairly unique lawsuit at the time because the comments were made on the Internet by a member of the general public, as opposed to a public figure with significant influence on traditional media.

Both of these suits are called SLAPP-suits. These types of lawsuits have triggered much state legislation aimed at protecting the general public under the 1st amendment right to free speech and the right to petition the government for unfair practices of big business.

These relatively new suits, targeting the general public for their negative comments on Internet sites like Yelp and Facebook, are the brain-child of a three decade old problem of lawsuits being filed by big business entities. Critics argue that these lawsuits against the everyday citizens are an attempt to silence them from exercising their right of free speech or their right to petition the government. These suits are called SLAPP suits, which stands for “Strategic Lawsuits against Public Participation.”

Since the real motive of a SLAPP suit is to punish and deter criticism, the lawsuits have been successful in “chilling” free speech and discouraging the public from making future complaints against the company. There are many documented cases where defendants found it easier to remove their posts and remain silent.

States Have Tried to Protect Individual Free Speech with Anti-SLAPP Legislation

Public outcry against these suits resulted in many states enacting anti-SLAPP legislation. The purpose was to prevent an entity from filing a suit when the result would chill free speech. For example, California’s version of anti-SLAPP legislation is California Civil Procedure Code, section 425.16, which states that a person is protected from a suit if “any act of that person in furtherance of the person’s right to petition or free speech under the United States or California Constitution in connection with a public issue.” If the person is sued anyway, they will lose. However, a relatively small number of states have legislation as broad as California and only about one half of the states have legislation at all.

Is the Internet Considered Media?

When a state legislature is drafting Anti-SLAPP legislation, they often leave out protections that would cover the media. The First Amendment does not protect the media for defamatory or libelous statements, for publishing information not of public concern, or for a statements that are false and published with actual malice. These restrictions don’t apply to the general public. A member of the general public would be protected for making statements about the same or similar subject matter. Remember, Oprah won her suit only because the court found the statements were true.

When the Internet became widespread, a federal statute called the Communications Decency Act was passed. Although its original wording restricted free speech on the Internet, the Supreme Court struck down those sections and included wording that ultimately protects sites like Yelp and YouTube. Unfortunately, only the owners of the sites are protected from a defamations suit resulting what other people post. The individuals is not explicitly protected.

Has the Internet Transformed the General Public into the Media?

The question stands, if a person voices their opinion on the Internet, which has become the new mass medium, have they transformed into an agent for the media, and thereby deserving of less protection? If so, what protections should they be awarded when it comes to potential SLAPP suits?

An increasingly popular view is that an individual retains their status as such, and is therefore not an agent of the media and is protected by Anti-SLAPP legislation. In fact, there have been a number of California cases where complaints for defamation arising from Internet postings were successfully defended by using the state’s anti-SLAPP statute.

Some of the protections for Internet postings have remained the same as those for which the traditional anti-SLAPP laws were established: to protect the general public. These protections include the right to free speech (online speech in this case), the fact that the cases have no legal merit, and the fact that the lawsuit creates a “chilling effect”, as explained earlier. The courts have also found that people on the Internet have the right to remain anonymous when posting criticism. Businesses have attempted to issue subpoenas to compel the person to reveal their identity, which has been successful in some cases and found to be a valid defense in others.

The fact remains, however, that there has failed to be consistent rulings regarding Internet use and the protections individuals are awarded. The problem remains that everyday citizens are often not financially equipped to defend lawsuits brought by big business and their criticisms are often silenced.

Modern Technology Calls for Broader Constitutional Rights

Since the states vary in the broadness of their anti-SLAPP legislation, further protection is sorely needed. This type of protection can only come from a broadly defined federal statute, which will force the states to protect their citizens. Recently, many have been advocating for a federal anti-SLAPP law to protect people in states that either do not have laws or have laws that are too broad to adequately protect an individual’s right to free speech.

As a strong supporter of First Amendment rights, my view remains: it is no longer valid that the media should be limited in protection. In a sense, we have all become the media because of the ease in which individuals can widely disseminate information on the Internet, creating just as much influence as traditional media. Therefore, if the goal of traditional anti-SLAPP legislation is to protect individual rights and to protect those who do not have the resources to defend themselves against big business, those protections should be expanded to the media. This would quell the controversy and prevent needless litigation. Most importantly, it would protect the constitutional rights that make the United States unique.

Violent Facebook Posts: Threats or Protected Speech?

Everyone has bad days, and everyone has different ways of dealing with them. Some people go to bars, some go the gym, some go shopping… Soon, the Supreme Court will decide whether violently venting frustrations on Facebook will be classified as true, criminal threats, or a protected way to decompress.

anthony elonis facebook violence2010 was a rough year for Anthony Elonis. His wife moved out and he lost his job. In response to these events, he took to Facebook. His posts were often written as lyrics or mimicking the comedic styling of others, and were specific and violent in theme. As a result, his wife called the authorities, and a court issued a protective order.

Unsurprisingly, he responded with violent lyrical threats referencing his wife, the judge, the sheriff’s office, and even elementary schools. Eventually, the FBI became involved. After a visit by two agents, guess how Elonis responded?

Direct references to killing one of the agents in another lyrically styled Facebook post.

When Is a Threat a Threat?

This case presents a few complicated legal questions. At the core, the Supreme Court should be clarifying when a threat really is a threat. According to Virginia v. Black, one of the flagship cases for true threats, the speaker need not actually intend to follow through with the threat. Indeed, the lack of First Amendment protection over true threats is to protect people from fear of the possibility of violence.

This offers little clarity on when words lose protection and become criminal in nature. In fact, courts across the country seem to pick and choose, on a case-by-case basis, whose intent and perception matter when applying a standard. Some look towards the subjective intent of the speaker, where others look towards whether the reasonable person receiving the message would feel threatened. Even where courts settle on a “reasonable” standard, they struggle to apply a consistent standard of reasonableness—for instance, is it the reasonable listener, or the reasonable speaker?

Why Does This Matter?

The first question many may ask is “why does this matter?” In today’s day and age, where communication can happen nearly instantaneously, the lack of clarity of when the First Amendment applies is troubling.

While Elonis’ method of therapy unfortunately struck fear into others, his case matters because it will be setting a new benchmark. While the current Black standard has been more of a grey area, it has likely kept courts cautious in how to treat speech. Now, a line will be drawn. Too strict of a standard, and free speech suffers; too loose, and the freedom to not feel threatened by violence does.

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” These famous words of Justice William Brennan succinctly define how we generally view speech in this country. Even though the sentiment comes from a time when flag burning and taking to the street to express anger was more common than logging onto social media to do so, hopefully the court will keep it in mind when deciding how to treat online speech.

Do Facebook “Likes” Have Legal Implications?

If you have a Facebook account, you’re probably familiar with that little thumbs-up icon that shows up after you click “like” on a friend’s post or a company’s page. Believe it or not, that little thumbs-up can have more serious legal implications than you may think. Here are three important legal implications you should know about “likes.”

facebook likes legal implications1. “Likes” Are Protected by the First Amendment

First, the good news. Last year, the Fourth Circuit Court of Appeals determined that “liking” something on Facebook is protected speech. When a deputy sheriff was fired for liking the campaign page of his boss’s opponent, he filed suit alleging he was fired in violation of constitutionally protected activity. While the lower court did not see how a like could be political speech, a unanimous appeals court did, and failed to see the difference between “liking” a page and putting a picket up in one’s front yard.

If the deputy had been fired for putting up a sign in his yard, he certainly would be entitled to file a lawsuit. In today’s day and age, a Facebook page is similar to one’s front yard on the Internet.

Next time you like something on Facebook, keep in mind that you may be engaging in protected speech.

2. “Likes” Are Admissible against You in Court

While it will vary from case-to-case and state-to-state, your “likes” on Facebook may be admissible against you in a court of law. For example, say someone who “likes” Kung Fu movies, Pulp Fiction, and Fight Club is standing trial for assault, and takes the stand testifying that they don’t like violent movies or anything involving violence, those likes could be introduced to attack the credibility of that person.

Furthermore, if someone creates a page intent on spreading false information on someone, and that page gets several “likes” it may support certain elements of a libel action against that person.

Before you “like” something, keep in mind that anything you click may be used against you in a court of law.

3. “Likes” May Take Away Your Ability to Sue

Well, at least if you “like” General Mills or any of their products. According to their ambitious new legal terms, every time you “like” one of the company’s brands, you are agreeing to arbitration and waiving your right to sue them in court. While this may not seem like a big deal, the way the policy is worded, it may extend beyond “likes” and even into buying products in the grocery store. And “like” it or not, the implications here are serious: if a legal challenge arises, say, from an employee intentionally poisoning customers, lawyers will likely first attempt to demonstrate how the policy is unconscionable or otherwise unenforceable before the case could proceed. Whether or not this challenge is successful, it will be long and expensive, which does not help either party in the long run.

Perhaps most disturbingly is that often times, these brand’s Facebook pages have special offers or coupons for “likes.” If this type of policy becomes the norm, many customers who are injured or duped, even by the very offer they “liked,” they may find themselves with limited legal recourse.

These terms came after several lawsuits against the food giant. Apparently, General Mills believes that taking away their customers’ ability to sue is the best way for them to hang onto their lucky charms.

Think Before You Click

Although Facebook is primarily a social networking tool, keep it in mind that it is also an expansive stockpile of personal information that can be viewed by marketers, employers, police investigators, and legal professionals. Before interacting with any social media platform, beware that the implications of your clicks go far beyond your computer screen and your immediate social network.



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