Author: lgarfield

Another day, another proposed piece of social media legislation

This one comes from the great state of Virginia.  Virginia lawmakers are considering a bill to permit parental access to a deceased child’s digital accounts. The bill defines digital accounts as “blogging, e-mail, multimedia, personal, social networking, and other online accounts..”  The bill mirrors legislation other jurisdictions are considering, which are designed to grant survivors the benefits of a decedent’s social media estate.  The Virginia Law, however, differs in that it is limited to minor decedents, most of whose estates may not have the financial value of adults who have cultivated a profitable empire through blogging, twitter or the like.  Though not expressely stated, one can assume that Virgnia lawmakers, in adopting the law, are hoping to provide parents with information of value concerning instances of “cyber-bullying”  or unintended consequence of social interaction.  Minors can circumvent the measure through through language in a will or other trust instrument.

Of particular note is the drafting of the bill, which  leaves room for future, anticipated or perhaps even unforeseeable expansion of social media, by including in its definition of digital accounts, “other on-line accounts or comparable items as technology develops.”  The language provides lawmakers with a future-catchall and will potentially guard against the all to common problem of laws playing catch-up with rapid technological advances.  One has to wonder, however, if such broad language could survive a “void for vagueness” challenge.

Anonymous Yelp reviews not hearsay.

A Florida Federal District Court judge ruled that reviews posted on Yelp, the social media site that invites people to review local businesses,  potentially illustrated evidence of “customer confusion,” an element of trademark infringement.  An article appearing in Bloomberg Social Media Law and Policy Report highlighted the case, which concerns a challenge by You Fit, Inc. a national gym chain against a defendants who chose to name their Florida gym, Fit U.   You Fit sought to introduce two Yelp postings that explained consumer confusion.  One such posting began “I am soo confused.”  Defendants in the case argued that the reviews were hearsay and therefore inadmissible.  The court, however, disagreed and concluded that the posters’ declarations were admissible since they demonstrated “the then existing mental state of the declarents who posted the comments.”

SNOPA reintroduced in Congress

Three members of the House of Representatives have  reintroduced the Social Network OnLine Protection Act  last week.  SNOPA would prohibit employers, potential employers, schools and school admissions officials from requiring employees and or students to provide social media passwords or other information used to access online accounts.  SNOPA was first introduced last spring but dies when Congress adjourned at the end of 2012.

 

Pintrest not immune to a Winklevoss-type lawsuit

What were you doing December 27?  While many people were pinning pictures on pintrest.com, perhaps of of New Year’s Eve Feasts or Dream Vacations for yet realized February Blizzards, Attorney Theodore F. Shroeder was filing a law suit in the Southern District of New York against Pintrest founder Brian Cohen for allegedly stealing his idea for what Cohen turned into Pintrest.com.  The complaint reads like the Social Network screenplay.  According to the complaint, while a Colombia Law School student, Shroeder developed the idea for pinning things of interest to a “board.”  Shroeder subsequently brought on a few investors, Cohen being one of them.  But according to the complaint, Cohen stalled Shroeder’s project and misappropriated the idea for his own use.  Schroeder specifically alleges that Cohen “caused the project deadlock so that he could steal the core ideas for himself and freeze out the Plaintiff from reaping benefits.”

This sounds like one to watch.

Social Media’s Role in Trump v. Maher

Donald Trump is suing Bill Maher for breach of contract.   Last month Maher made an announcement during the Jay Leno show that he would pay the charity of Trump’s choice $5 million if Trump released his birth certificate.  Maher made the offer in response to Trump’s seemingly illogical calls for President O’Bama’s birth certificate, which he made as head of the so called birther movement.  Trump, who in the court filings identifies himself as “a highly successful businessman, investor, and television personality” claims that Maher’s failure to honor the offer constitutes a breach. So  what does social media have to do with the seemingly easy contracts case?  In his complaint, Trump alleges that Maher “engaged in base insults, stating that Mr. Trump’s postings on the Twitter social networking service are the work of a “syphilitic monkey.”  Not sure what these posts have to do with a contracts claim; the comments might be better suited for libel.  Except there are a host of defenses for Maher on this one; truth, privilege, failure to cause special damages, absence of malice (after all, by his own admission, Trump is a public figure)   Which one’s do you think would stick?

Using Facebook to find fellow terrorists: A cautionary tale

Quazi Mohammad Rezwanul Ahsan Nafis plead guilty today to terrorism charges stemming from his attempt to blow up the Federal Reserve Bank here in NY.  Nafis’ attempt, if completed, could have caused serious damage.  Fortunately for us, Nasfis realized early on that he could not complete his task alone and so he turned to Facebook to recruit fellow terrorists.  Seems one of the Facebook friends he tried to recruit was a government informant who contacted officials.  Another example of why friending “faux friends” isn’t necessarily a good idea.

More States Consider Social Media Privacy Bills

The concept of legislatively limiting employer access to employee social media traffic is gaining traction.  Legislators in Georgia, Montana and North Dakota are considering bills similar to the one already adopted by the Illinois legislature.  The bills would restrict employers from researching social media sights as a means of gaining additional insights about employees and/or employee candidates.  More information about the potential laws is available here.

Are these bills innovative or are they just a natural extension of the HR workplace rules that prohibit, say, asking a candidate is she is pregnant?

NY 2nd Dept. finds statute of limiations didn’t toll in suit against anonymous blogger

This case comes courtesy of some of the folks up in the Town of Wayawaynda in Upstate New York.   The controversy plays out like an oscar worthy movie.  Seems as if  someone beheaded a horse and then left the head in a Wayawanda Town Board member’s swimming pool.  The incident sparked accusatory anonymous blogs, posted in turn by  wayguy, johnny500 and wawayandafirst.  The posts occured on or about August 29, 2007 and  October 6, 2007 and accused plaintiff of pulling off the “Tom Hagan.” (although, like the plaintiff in this case, no one is sure that Don Corleone’s adopted son actually committed the heinous act).

Plaintiff filed suit on July 28, 2008 against Mike Hawkins, knowns as “wayguy” and two other bloggers, John Doe johnny500 (johnny500) and John Doe wawayandafirst (Wawayandafirst). Defendant Wayne Skinner was not identified by name in the original complaint, but on September 18, 2008, Plaintiff served Skinner  with copies of the original summons and complaint assuming Skinner was  John Doe johhny500 and wawayandafirst.   Three months later, on October 20, the complaint was amended, to include Wayne Skinner (and his wife.)

Skinner argued that the case should be dismissed since the statute of limitations ran prior to the October 20th filing. (the statute of limitations had not run out prior to July 28).   But, here is the twist, turns out that although skinner was not johnny500 he   was “wawayandfirst” and the court found that since  “the remaining John Doe named by the original complaint — “John Doe wawayandafirst’ (Wawayandafirst’)” — referred to Wayne Skinner, and since he was alleged in the complaint to be the individual responsible for issuing the Wawayandafirst blog posts. Under these circumstances, the original complaint was sufficient to have apprised Wayne Skinner that he was one of the intended defendants.”

I’m not sure whether the actual claim will stick, but I am certainly glad to see the court craft its opinion to hold an “originally anonymous” blogger responsible.

What does it take to make a blog review defamation?

Calling someone a “real tool” is not enough to defame a doctor’s reputation.  The Minnesota Supreme Court recently ruled in the case, McKee v. Laurion, that a web review, written by Dennis Laurion the son of a one of Dr. David McKee’s patients, which stated, among other things, “Dr MCKee is a real tool,” was an opinion rather than fact, and therefore not actionable.

Ironically, Dr. McKee, like so many  doctors, presumably brought the action to defend his reputation, which was originally tarnished by those reading, and believing, the website on which the rating appeared.  Ironically, because of the McKee’s suit, Laurion’s words have gone viral.  What a bummer for Dr. McKee, not only did he lose his suit, but he potentially lost a wider patient base too!

Government seems to be taking bigger steps toward regulating social media

Privacy is finally catching the real attention of the Government.  In a moved aimed at keeping our social media traffic private, the FTC is urging social media companies to include a do-not-track feature in their software and apps.  A NYTimes article, which is available at  http://tinyurl.com/algljc8 discusses the very real concern’s of government officials and highlights a recent FTC fine  of $800,000 issued against the neophyte social networking app, Path for violating federal regulations against collecting personal information on underaged users.  While the move seems like a good one, it also smacks of a little too much government regulation, even for this seemingly staunch anti-libertarian.

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