Author: lgarfield

Social Justice and Social Media

Ariel Levy’s piece, Trial by Twitter,  presents an astute recount of how Twitter lead to the identification, prosecution, and ultimately conviction of two Steubenville High School football players who raped a classmate.  The article, which appears in this week’s New Yorker, supports a theory subscribed to dearly by authors of this blog; Social Media makes it harder for officers and defenders of the law to avoid prosecution of politically sensitive crimes.  As Levy points out, the Steubenville case came to light, in part, because the victim’s parents presented attorneys with a “jump drive” of tweets relating to the horrible incident.  The case divided a city, that was otherwise united in its adoration of its football team, making the prosecution somewhat contentious.  Despite the cadre of support for the young men and although at first there was no direct evidence of the crime, the stream of Facebook posts, tweets and other social media, on which high school students posted, created a mountain of evidence that was just too hard to ignore.

In the case of the Steubenville rape, the evidence that spurred the arrests not only lead to the public outcry for prosecution but also provided a start to the acquisition of enough evidence to support a prosecution.  In some cases, the social media rally sounds louder than the evidence can bear. In such an instance, we have, arguably,  a “Trayvon Martin” type of situation, in which the public outcry caused an attorney general to reconsider opening a case that had previously been deemed unwinable.  Ultimately, the initial call may have been right since the jury did not find him guilty beyond a reasonable doubt.

In both instances, however, we have a bit of a cautionary tale.  The blaring sound of social media can not be ignored when it comes to matters of social justice.

The Birth of RoboTweeting

NBC News reports that companies are becoming “Twitter-savvy” when it comes to consumer complaints.  In some instances customers logging complaint are retweeted with patronizing responses.  For example, according to the article, when @OccupyLA tweeted “you can help by stop stealing people’s houses!!” The Bank of America retweeted “We’d be happy to review your account.”  Corporate manipulation of Twitter is yet another example of how “the system” can corral innovative technology for its own use.   Gen-xers, hipsters and naughts have fled Facebook in droves  once businesses hijacked the social media.  Now Twitter.  Can Instagram be far behind???

Context Doesn’t Matter When Posting Rants

A defendant who posted a series of rants on the website “Ripoff Reports” claimed that the nature and tone of the website, and the posts that appeared on it, were enough to defeat a claim of libel.  Plaintiff, Piping Rock Partners, and its sole shareholder posted a series of rants about David Lerner Associates.  Piping Rock claimed that the rants were just that, and raised an “everyone knows the internet is just for ranting and not to be taken too seriously” defense.

The Court disagreed and with a shoutout to a popular search engine, ruled that anything that is searchable on google is presumed true.

Piping Rock Partners Inc. v. David Learner Associates Inc, (here) represents another case in the shifting tide toward giving more credibility to website postings.  Is it time to shift the presumption of posts from false to true ?  I would argue context matters.  After all, think about all those dating website posts.   Looks like Poppy won this one.

 

Should Court’s Hold LinkedIn Postings to a Higher Standard than Postings on Twitter or Facebook?

In a nod toward the power of social media postings, one company sued a former employee who dragged his feet when asked to remove the company’s name from his LinkedIn profile.  Michael O. Loatman of Bloomberg Law reports that plaintiff Jefferson Audio Visual Systems, Inc. (JAVS), which fired Gordon Light, a former executive of the company, for allegedly defaming it, asked Light to “remove any indication that Light still worked for the company” from any of his social media profiles.  Light dragged his feet and the company sued for Fraud.

A District Court for the Western District of Kentucky, dismissed the claim in Jefferson Audio Visual Systems, Inc. v. Gunnar Light, failed to allege facts sufficient to prove each element of the claim.  This fraud claim required proof that the plaintiff reasonably relied on defendant’s misrepresentation.  Misrepresentation could not occur in this instance since JAVS already knew Light was no longer in its employ.

Perhaps JAVS should have found a different plaintiff.  A firm considering hiring Light following his dismissal from JAVS seems the likeliest of candidates.  Assuming the latter to be true, it suggests that there is a quality of veracity to LinkedIn that is not necessarily ascribed to other types of social media such as Twitter or Facebook.  Should we ascribe more honesty to messages posted on LinkedIn because of the nature of business nature of the site?

 

NY Court Overturns Teacher’s Dismissal for Facebook Post

Finding that “sometimes there are second chances and that compassion is a quality rightly valued in our society” New York Supreme Court Appellate Division overturned a lower court, which upheld elementary school teacher an elementary school teacher’s dismissal, stemming from an inappropriate Facebook post. Christine  Rubino posted her comments the day after a student drowned during  a school trip to the beach.   Rubino wrote on her Facebook page, “after today I am thinking the beach sounds like a wonderful idea” and other assorted inappropriate comments.

The court asserted that the test for Rubino’s dismissal is whether termination “shock[ed] one’s sense of fairness.”. Here the court found that  her otherwise unblemished 15 year professional record, the fact that she was not Facebook friends anyone any else associated with the school and her repeated apologies justified the reversal.

The case, Rubino v City of New York, NY App. Div. No. 03272. 05/07/13 represents something less than the zero-tolerance approach society seems to call for in instances where employees make inappropriate posts.  Rather it seems to support the theory I asserted in my article The Death of Slander, 35 Colum. J. Law & Arts 17 (2011) that postings, tweets and texts are more akin to the thoughtless off-handed comments than to words written with reflection and should be treated as such.

 

 

 

 

 

Students Spend 40% of their Reading Time on Social Media Sites

No, students aren’t just catching up on the status of friends, or frenemies.  According to an article in the Chronicle of Higher Education, students gather much of their information, particularly current events and news, from social media sites.  The findings, come from a study by SuHua Huang, author of “Reading Habits of College Students in the United States,” which was presented on Tuesday at the annual meeting of the American Educational Research Association.  Another example of the proliferation of social media into our daily lives.

Spoilation, Shoulder Surfing and Forced Friending

The unchartered waters of employer access to employee social media accounts has added new words to the lexicon.  Speaking at the Society of Federal Labor and Employee Relations Professionals’ 40th Annual Symposium, Sean Rogers cautioned employers against “shoulder surfing” the practice of watching over an employee as he or she using her social media and “Forced Friending” which occurs when employers require employees to grant requests to connect to them to the employees facebook so that employers can monitor an employees online activity.  Spoilation, a third word to pop up with regard to employer-employee social media relations,  is the act of deleting social media activity before it can be retrieved, perhaps for discovery purposes.

Both spoilation and forced friending have made their way beyond the dictionary and into the Courtroom.  In Gatto v. United States, No. 10-cv-1090 (D.N.J. Mar. 25, 2013), the U.S. District Court for the District of New Jersey sanctioned a former JetBlue Airways employee who sued the airling and a second company for personal injury, after he deactivated his Facebook account in response to defense counsel gaining access to that account and printing out incriminating photographs.  In Downs v. Anapol, Schwartz, et.al., 2013 WL 1147449 (Pa.Com.Pl.) the Phildelphia County Court of Common Pleas is considering whether a firm’s forced friending of sorts, which ultimatly lead to firing, is grounds for employment discrimination.

These cases further illustrate the murky waters surrounding employer-employee social media relations.  Seems like as with everything else social media, society is able to ascribe a term to particular conduct much more quickly than the law is capable of its regulation.

 

The Downside of Social Media

 

In the wake of the bombings that occurred during the Boston Marathon, and the manhunt that followed, several media outlets have reported that social media may have actually hindered, rather than helped, the FBI’s quest for swift justice.   By all accounts, the search for the bombing brothers yielded one of the first nation-wide “up-close, play-by-play” accounts.  In fact, CNBC reported that “[u]p to 8 of the top ten world-wide Twitter trends on Friday have been directly related to the Boston investigation.”

 

There is a downside to the rapid and widespread dissemination of information concerning the manhunt.  Among some of the noted causes for concern; that easy access to police activity may aid suspects in their quest to escape; that misinformation can spread quite quickly, yielding unfair and undesirable results (take for example the case this past week where the NY Post identified the wrong person as one of the bombers) and that any news worthy event can prompt trollers to create fake postings and twitter feeds.

 

One of the biggest problems with disinformation is that it is hard to retract.  Andy Borowitz  keenly highlighted this phenomenon in his recent New Yorker parody, “CNN Quits Breaking News and Becomes “CNN Classic”

 

But the benefits of social media should not be discounted.  Social media provided people with easy access to valuable information.   Announcement that police caught one bombing suspect alive was released through Twitter, quickly relieving anxiety in Watertown and its environs.  For those of us farther from the action, our social media accounts allowed us to follow the story from wherever we needed to be, a switch from the not to recent past where people were made to choose whether to remain near a television or phone or instead try to go about their daily lives, waiting anxiously to return to a news source.

 

The bombs went off just a few moments before my social media class.  Eerily, 10 years ago, terrorists struck the first Tower just a few moments before my criminal law class.   At the time, without us knowing the severity of the harm, I promptly cancelled class so students could find out any information they needed to gather about the horrific event.   This time, I offered to cancel class again.  My students, three of whom graduated from Boston University, assured me that class should go on and that any information they needed would reach them on their smart phone in a timely manner.  Yes, they were distracted, but kudos to the students, who were nonetheless able to participate in class.

Maybe this defamation case will go to trial?

Those who watch “defamation by twitter” cases know that very few go to trial and to date none have made it to the level of appellate review.  A new case, however, has court watchers hoping for some decision, and ultimately guidance on whether defamation via social media requires legal treatment of a nature different than the garden-variety brick and mortar type of tort.  The case, Soul Circus v. People for the Ethical Treatment of Animals (PETA) (filed N.D. Georgia March 6, 2013) concerns a tweet by PETA claiming that “SCI [Soul Circus] does not care about the treatment, health, or wellbeing of its animals.”  The tweet, and a similar posting on the PETA Facebook site, was accompanied by an elephant, purportedly the Elephant Nosey, who appears in Soul Circus, chained to a fenced in area.   The posts received over 100,000 comments.  The same claim originally appeared on the PETA website.

Soul Circus is suing PETA for defamation, tortious interference and false light.  The case seems fairly straight forward.  Assuming Soul Circus can prove damages and that PETA cannot use the defense of truth, the circus should succeed in its claim.

Arguably, it is hard to defame in 140 characters, although here the direct allegation of animal cruelty seems straight forward enough to prove the elements of defamation, without innuendo.  However, even so, it seems to me that the question of damages is a big issue.  The traditional rule where defamation is concerned is that a defendant only commits one count of libel regardless of the number of rebroadcasts of a particular defamatory statement.  Given the proliferation of social media, should the rule change and if so should a damage reward reflect that?

Has YouTube Lead to An Increase in Firings?

On the same day that Rutger’s Athletic Director Tim Pernetti fired basketball coach Mike Rice, comes word that the Supreme Court of West Virginia suspended Putnam County Va. Family Law Judge William M. Watkins III.   (decision available here).  The decision came after members of the court viewed several YouTube videos of Judge Watkins.  In one such video, which had been viewed over 200,000 times the judge repeatedly told a paston to “shut up.”  In another incident Watkins said to a woman seeking an order of protection, “”Shut up! You stupid woman.”     The Rice case may be a bit more familiar to readers.   Rutgers fired Rice less than 24 hours after ESPN’s Outside the Lines aired video of Rice committing inexcusable acts, including kicking players, throwing balls at them and yelling homophobic slurs.

The timing of these firings is most curious.  At least in Rice’s case, the firings did not come at the time his superiors learned of his transgressions, but rather after the transgressions were aired on the social media website, leading to huge public outcry.  This begs a question this blog has come back to again and again.   Does the public nature of social media assure greater accountability.  At least in these two instances I would have to say yes.  But-for the public outcry I am not confident that neither of these wrongdoers would have received the same degree of punishment absent the publicity following their acts.  I would go further and say such is most certainly the case where Mike Rice is concerned.

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