Social Media Platforms – Page 9 – Social Media Legality

TWIBEL: WHO GOT IT RIGHT? THE U.S. OR INDONESIA?

By Dana Halber

Courtney Love, the grunge rock queen, spent eight days in court at the end of last month standing trial for “Twibel,” the commonplace term for “Twitter libel.” Twibel is the act of defaming another individual through a 140-character Twitter “tweet.” Love’s former attorney, Rhonda J. Holmes, sued Love for the publication of a reputation damaging Tweet, which implied that Holmes had been “bought off” as the reason for Holmes no longer acting as Love’s attorney.[1] Love argued that the mass dissemination of the tweet was inadvertent, as she only intended to send it two people, and once she realized it had been published to her 220,000 plus Twitter followers, she deleted the tweet.[2] Even more legally significant, Love claimed she believed the statement to be true at the time she sent the tweet, demonstrating that Love lacked the “knowingly false or doubting the truth” of the statement requisite to find her guilty of libel.[3] Ultimately, Love prevailed when the jury determined that she was not liable for defamation.

However, did the jury reach the right verdict? Although the Los Angeles Superior Court Judge made a precedential decision in holding 140-character or less tweets in California to the same standard as an article written for the Los Angeles Times, the jury clearly was not as strict. Their leniency can be especially dangerous in establishing precedent in this particular case as Love is a repeat tweet offender.

Venting her frustrations over social media seems to be Love’s pattern of behavior, and the reason she is involved in another pending defamation lawsuit brought by fashion designer Dawn Simorangkir for damaging comments Love made about her on Pinterest and the Howard Stern radio show.[4] How will Love learn to temper her tweets if she’s only sharing her “opinion”, however damaging it may be, and escaping liability? And, furthermore, what message does the result of Love’s twibel trial send to the American public? Perhaps it’s time to reevaluate our defamation law in conjunction with social media…

Meanwhile, at roughly the same time Love stood trial, on the other side of the world, Benny Handoko, an Indonesian Twitter user was found guilty of defamation for libelous comments made about an Indonesian politician via Twitter.[5] Handoko became popular on Twitter after publishing statements in which he referred to former Prosperous Justice Party member Mukhamad Misbakhun as a crook who played a vital role in Indonesia’s Central Bank bailout scandal in 2008.[6] Handoko was sentenced to one year probation for online defamation in violation of articles 27 and 45 of the Electronic Information and Transaction (ITE) Law, which provides that “anyone found guilty of using electronic media, including social networks, to intimidate or defame others could be liable to six years in prison and a fine” that can amount up to approximately $105,000 U.S.D.[7] Handoko, refused to apologize for his statements, believing them to be true, as he based them on media reports.[8] Accessable.

[1] Eriq Gardner, Courtney Love Wins Twitter Defamation Trial, The Hollywood Reporter (Jan, 24, 2014, 5:03 PM), http://www.hollywoodreporter.com/thr-esq/courtney-love-wins-twitter-defamation-673972.

[2] Id.

[3] Id.

[4] Id.

[5] Mong Palatino, How One Twitter Defamation Case Casts a Shadow on Media in Indonesia, Mediashift (Feb. 11, 2014), http://www.pbs.org/mediashift/2014/02/indonesia-twitter-defamation-case-casts-shadow-on-media-landscape/.

[6] Id.

[7] TechLoy Reporter, Indonesian reporter convicted of libel of Twitter, protest surges over draconian internet law, TechLoy (Feb. 4, 2014), http://techloy.com/2014/02/05/indonesian-man-convicted-libel-twitter-protest-surges-draconian-internet-law/.

[8] Palatino, id.

At What Point Will a Court Admit Social Media Evidence?

As social media has become more and more prevalent, courts have been faced with the difficult task of determining the evidentiary standard to be applied to social media. According to the Bloomberg Social Media Law & Policy Report,[1] courts have generally articulated two different approaches to the authentication of evidence in the form of social media. Some courts have adopted a standard that allows “a reasonable inference as to the source of the postings [to be] based on their contents, such as statements in the creator’s profile, photographs or references to facts about the creator.”[2] Other courts require “something more, such as the testimony of the creator, documentation of the internet history or hard drive of the purported creator’s computer or information obtained directly from the social networking site.”[3]

The Delaware Supreme Court, in Parker v. State,[4] recently adopted the less stringent evidentiary standard when it comes to social media evidence, concluding that “social media evidence should be subject to the same authentication requirements under the Delaware rules of Evidence Rule 901(b) as any other evidence.” While acknowledging the ease with which social media evidence could be fraudulently created, the Delaware Supreme Court believes the issue of authenticity is one to be decided by the jury. Conversely, the court in Griffin v. State[5] rejected the prosecution’s argument that a person’s photograph and birth date are sufficient to authenticate a Facebook page for evidentiary purposes. The Maryland court emphasized how easily a person can access another’s Facebook page and that a person only needs an email address to create a fraudulent page. [6]

According to the Federal Rules of Evidence Rule 901, “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent much produce evidence sufficient to support a finding that the item is what the proponent claims it is.”[7] It seems that the Federal Rules of Evidence can be effectively applied to social media, as “evidence sufficient to support a finding” leaves much to be decided by the judge hearing each individual case. However, giving each judge so much discretion on a case-by-case basis can lead to inconsistent findings based on jurisdiction and, consequently, forum shopping.

In such a progressive world, we must ask whether evidentiary rules can be effectively applied to social media. Do people abuse and falsify social media so often that rules of evidence should account for that? Could the more stringent evidentiary standard, which may require an examination of a person’s hard drive or search history, lead to an invasion of a litigant’s privacy? In a world where the Internet connects people regardless of geography or jurisdiction, is it not crucial that the rules of evidence be applied equally throughout the country? Hopefully we will learn the answers to these questions in the near future.

[1] Hugh Kaplan, Court Chooses More Permissive Approach to Authentication of Social Media Evidence, Bloomberg Social Media Law & Policy Report, Feb. 7, 2014.

[2] Id.

[3] Id.

[4] 2014 BL 32616, Del., No. 38-2013, 2/5/14.

[5] 19 A.3d 415 (Md. 2011).

[6] Id.

[7] FRE Rule 901(a).

Yelp! at Your Own Risk

What is Yelp?

Yelp, Inc. is an American company that operates an “online urban guide” and business review site. The company’s website began as an email service for exchanging local business recommendations and later introduced social networking features, discounts, and mobile applications.[i] The company’s website contains a discussion forum and other social networking features. It requires reviewers to register and encourages them to create a user profile. It offers “praise and attention” to user reviewers plus special status and social events for its most popular, prolific and “elite” members.[ii]

Simple enough, right? So what’s all the fuss about?

It has become increasingly apparent that writing Yelp reviews may land you in some hot water, which begs the question “Why would writing a negative review get me sued?” The site asks for users to write honest, first-hand accounts of what their experience was like. Yet, when that honest review turns out to be negative/critical, some business owners may not take it so lightly. In the last week or so there have been at least two lawsuits dealing with Yelp reviews, which actually bookend the spectrum of potential outcomes arising from disgruntled reviews. On one end of the spectrum is a review that stated a contractor damaged and stole the reviewer’s property.[iii] The jury came back with a guilty verdict for defamation.[iv] On the other end of the spectrum was a review of a local dentist, who attempted to sue for defamation, but his claim was dismissed referencing California’s Anti-SLAPP Law.[v]

Ok, so the Anti-SLAPP Laws will protect me then?

Not necessarily. California provides a special motion to strike strategic lawsuits against public participation (SLAPPs), which is intended to put a quick end to nonmeritorious lawsuits designed to suppress speech on a matter of public concern.[vi] Public reviews of businesses, health care, restaurants and any other type of service provider, have been around since the first customer was served. Services like Yelp have made the dissemination of these reviews readily available to anyone willing to read them. One would think that every state would have an Anti-SLAPP statute protecting the public, but that is not the case, as 21 states have not enacted an Anti-SLAPP law.[vii] One of those states, Virginia, was home to the first review I mentioned where the defendant was found guilty of defamation after being sued by her contractor. Would an Anti-SLAPP statute have helped her? Should every state have a statute similar to California? It’s tough to say, but one could easily make the argument that Anti-SLAPP laws unnecessarily expand our First Amendment Rights.

[i] Yelp, Inc., wikipedia.org, http://en.wikipedia.org/wiki/Yelp,_Inc (last visited February 8, 2014).

[ii] Id.

[iii] Perez v. Dietz Development LLC, Va. Cir. Ct., CL 2012-16249, jury verdict 1/31/14.

[iv] Id.

[v] Rahbar v. Batoon, Cal. Ct. App., No. A136463, unpublished 1/31/14.

[vi] 23 HLR 221 (Issue No. 6, 02/06/14).

[vii] Public Participation Project, Anti-Slapp.org, http://www.anti-slapp.org/your-states-free-speech-protection/ (last visited February 8, 2014).

A Response to “Blurred Lines and the Right to Privacy”

In “Blurred Lines and the Right to Privacy”, Huffington Post writer Debbie Hines urges people to emotionally connect more with issues of online privacy violation. Ms. Hines boldly claims that the only way she believes action against online privacy violations will be taken is when we feel as emotionally violated in regards to online privacy as we would if someone were to break into our own homes—and she certainly seems to think we should, given that she states that “our online personal data by far out values any possessions in our homes.” She also invokes the Civil Rights movement as another example of a situation where serious action will only be taken when the public becomes emotionally involved. The author’s central inquiry is in regards to what will be the emotional stimulus that will ultimately move us in the direction to take action and protect against online privacy violations?

While I agree that online privacy is important in respect to information that is on the internet without your knowledge and consent, I have to disagree with the general tone of Ms. Hines article. To equate the emotional violation that is online privacy invasions to that of a person’s home being ransacked by burglars is slightly outrageous to me. Though I do not doubt that at least an equivalent amount of both financial and emotional harm could be achieved through both kinds of violations, the way we have been taught to view the internet makes this an incongruous comparison. The internet is premised on the notion of open access to information; it is a forum that we all utilize when seeking out any imaginable type of information. While it’s clear that the author is not referring to limiting this laissez-faire informational exchange, her opinions on such privacy violations seem to negate the general premise, purpose, and intent of the internet.

Furthermore, the expectation of privacy issue needs to be addressed. In our society, we are taught to view our activity on the internet through a distrustful lense. We are continually warned of the pitfalls that come from simply ignoring the privacy settings on social media accounts, let alone the far more damaging threats of identity theft, both in regards to our personal, professional, and financial lives. While I do believe that it would be nice to feel a sense of security on the internet, I just do not think that the public’s expectation of privacy on the internet is particularly high, nor should it be; and it is certainly not near the level of privacy expectation one would have in one’s own home. To feel as secure on the internet would be dangerously naïve, particularly in light of some of the egregious and highly publicized internet privacy violations that the author refers to.

So while I am in no way belittling Ms. Hines proposition, I think that until the internet is a truly safe place, it would be more prudent and practical to instead focus on taking defensive measures to protect ourselves and our online information.

How to blog

Several of you have asked how to find material on which to blog. Let me tell you how I find my “content.” First, I browse through my twitter feed. I follow lots of social media folks and they often post links to articles that are provocative. I also read the NY Times Tech section, Huffington Post and (and dare I admit it) the N.Y. Post. They often have articles about social media legal issues. For instance, today there is an article on the Huffington Post Tech site entitled, Blurred Lines and the Right to Privacy.

Another way to find a blog topic is by searching other social media blogs. Bloomberg Social Media Law Blog is a good one. http://www.bna.com/social-media-law-blog/ Today there is an article about state law makers deciding whether to pass social media privacy legislation. So is Shear on Social Media Law. http://www.shearsocialmedia.com/ Google “Social Media Law Blogs” and you will come up with many. There are also a few blogs posted the right hand side of our blog.

You can also take an old blog post on our site and critique it. Finally, you can also use google alerts. Set an alert using the words social media and law, or privacy or athletes or judges, or whatever you like and you will get stories.

Once you find an article that interests you, it is time to draft the post. To me, a good post has two parts. First, a summary of the issue or article on which you are blogging. (make sure you reference any article you discuss) Then an analysis of the issue or article. Question its content or ideas . What is positive about the issue, or what is negative. Why or why not. Alternatively you could predict what will happen next. E.g. if focusing on legislation, is the state likely to pass the law? Should it not?

So, let’s say I wanted to blog on the article that appeared today in the Tech section of the Huffington Post. I would read it and then I would draft two paragraphs. The first paragraph would summarize the article; the second paragraph would question the article. Do I agree with the author’s conclusions? Do I disagree? Why or why not. BTW, the article is available (here) http://www.huffingtonpost.com/debbie-hines/blurred-lines-and-the-rig_b_4738964.html?utm_hp_ref=technology&ir=Technology (first come first served!)

The key is to have fun, experiment. Find a voice that you like. There are no wrong answers here. If you want to do it anonymously, feel free to post it under my name (though PLEASE make sure it is grammatically correct with no typos!) Just let me know so that I can note that you completed the assignment. You can also blog about you’re the paper on which you are working. A blog post will force you to consider the issue on a micro level, helping you to further develop your paper.

Think of it this way. Posting your first blog is a lot like first year oral arguments. Lots of angst before the fact, great feelings of accomplishment afterwards!

Finally, a few technical notes. When blogging, if you would like to add a link, hightlight the words you want to link to a site, then click the link button. When you click the button then past the URL of the site you are linking. Note that http:// automatically appears on our blog, and you don’t want to repeat it, as doing so will prevent the link from working. Next, add tags. Include topics you are discussing such as Twitter, Judges, Injunction, etc. Tags go in the box to the bottom right, seperated by commas. Finally, Once your link is set (and note there is not spellcheck on our blog site so spell check, spell check) press publish on the top right. Note that you can always edit after you publish.

This assignment is meant to be fun. Enjoy, relax. It is all opinion so there are no wrong answers!

Juror Tweets Updates During the Trial… Thoughts?

A juror tweets informational updates about a trial she is serving on. The updates are considered public information that the press and media may report and is not confidential. Her tweets do not state her opinion or a conclusion about the case. After day 3 of the trial, the defense attorney becomes aware of the tweets. At this point in the trial, the prosecution has rested its case. The judge has also instructed the jury at the beginning of the trial to not blog, Google, Tweet or Facebook post anything about the trial. Does the defense attorney have an ethical obligation to alert the court and the prosecutor?

As for an attorney’s ethical obligation to reveal such information, the Model Rules of Professional Conduct have not kept pace with technological advancements. Further, these rules may be unclear as to when an attorney must report a juror to the court. Take a look at Model Rule of Professional Conduct 3.3 Candor Toward The Tribunal, which “requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person… intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding.”

Also, Model Rule 3.3 Candor Toward The Tribunal comment 12 states:

“Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence [,] or failing to disclose information to the tribunal when required by law to do so.”

Does the defense attorney have an ethical obligation under Model Rule 3.3 and comment 12 of Rule 3.3 to report the jurors misconduct to the court? What would be the best way to handle this situation?

Thoughts?

#Famous on C-Block?… or a Jailhouse-Crock?

In 2008, Jodi Ann Arias put together an elaborate plan to corner her victim Travis Alexander and brutally stab him to death. After 29 consecutive stab wounds, a slit to his neck nearly decapitating him, and a gunshot wound to the head, she watched him suffer and take his last breath. She left him in the shower to rot, until he was ultimately found five days later in his Mesa, Arizona home. Due to the heinous nature of the crime, and the fact that she was an “attractive” female, the case garnered enormous media attention. After a lengthy trial, she was found guilty of first degree murder. Currently, Jodi awaits her fate in the penalty phase as the Prosecutor Juan Martinez seeks the death penalty.

As a convicted murderer, Jodi Arias has developed a large body of loyal followers via her Twitter page, which is run by a “friend”/previous fellow inmate. She currently sells artwork on her website by using Twitter to advertise. She also uses Twitter as a platform to: promote sales of her wristbands, taunt the victim’s family, solicit donations, poke fun at Prosecutor Juan Martinez, belittle her own attorney Kirk Nurmi, and flaunt her media coverage. Should any of this be allowed to happen?

The Son of Sam Law, applicable in Arizona, prevents criminals from profiting from their crimes. Although her artwork is not directly related to her crime, her Twitter account brings her enough fame to enable a healthy volume and a continuous flow of business. Should her horrendous murder be an outlet for her fame? Is fame a legitimate form of profit? Would any of us ever know Jodi Arias if not for the gruesome death of Travis Alexander? Should Jodi Arias have a voice to the outside world, after she extinguished Travis’ so horribly forever? Her latest tweet says she’s going “Radio Silent.” Considering that jury selection begins soon, her sudden choice to “sign off” seems obvious. Should such use of Social Media by a convicted murderer ever be allowed?