Facebook and Envy

As one of the few people my age (twenty-four) without Facebook (or any social media), I found an article published in The Economist in August 2013 to be pretty stimulating. The article, entitled “Facebook is Bad for You: Get a Life” summarizes several studies indicating that those who use Facebook are more miserable in life. According to a study recently published by the Public Library of Science, “the more someone uses Facebook, the less satisfied he is with life.”

According to the article, past studies have found that using Facebook causes jealousy, social tension, isolation, and even depression. Dr. Ethan Kross of the University of Michigan and Dr. Philippe Verduyn of Leuven University in Belgium conducted a study where they tracked eighty-two ‘Facebookers’ for two weeks and evaluated their changes in emotion. The guinea pigs were all in their late teens or early twenties and agreed to have their Facebook activity and real life encounters monitored for two weeks, reporting five times a day on their state of mind via a short questionnaire. When researchers analyzed the results, it was determined that “the more a volunteer used Facebook in the period between two questionnaires, the worse he reported feeling the next time he filled in a questionnaire.” While those who used Facebook more frequently reported a decline in satisfaction, those who had more direct contact with others, via personal encounters or phone calls, were more positive. “In other words, the more volunteers socialized in the real world, the more positive they reported feeling the next time they filled in the questionnaire.” The results led the doctors to conclude that Facebook actually undermines one’s well-being.

The article also cites a past study conducted by social scientists in Germany who surveyed 584 Facebook users in their twenties. “They found that the most common emotion aroused by using Facebook is envy. Endlessly comparing themselves with peers who have doctored their photographs, amplified their achievements and plagiarized their bons mots can leave Facebook’s users more than a little green-eyed.” The study concluded that encountering people in real life is much more realistic and thus more rewarding.

When I first read this article, I was skeptical of the results of the studies. However, upon more reflection, I recalled numerous people I know who have been ‘brought down’ after seeing something on Facebook. This is not why I do not have Facebook. I choose not to have Facebook because I believe in privacy– I do not think it is anyone’s business to know what I am doing, but even more so, I do not think that anyone would care. That being said, I can appreciate the connections people maintain through social media and would never criticize users. To each his own.

This article does, however, make a lot of sense. Why would anyone want to expose themselves to potentially being less satisfied with life because of nonsense read on social media? On the other hand, are these studies merely blowing Facebook’s effects out of proportion? I would be interested to hear responses from Facebook users. I would assume (admittedly ignorantly) that if you are confident enough in yourself, Facebook cannot negatively impact your life. Thoughts?

 

The Economist

Fired for Facebooking?

Last month The Journal News reported that a member of the Pleasantville (N.Y.) Police Department received harsh discipline as a result of inflammatory statements made on the officer’s personal FaceBook page.  Peter Burns, who reportedly operated under the online pseudonym “Coon Trapper,” made national news after his posts, critical of President Obama, were brought to the attention of local officials.  “The fact that he (Obama) is still alive bewilders me… Go die in a shallow grave you Muslim commie,” reportedly appeared on Coon Trapper’s FaceBook page.  Additionally, it is alleged that the page in question contained racial slurs to describe the President.

The Village board passed a resolution that allows Burns to keep his job on the condition that he serve a 60 day unpaid suspension, forfeit 25 vacation days, and be required to attend sensitivity training.  Mayor Peter Scherer said “These statements undermine confidence in law enforcement, and they cast doubt on the ability of this officer to fulfill his sworn duties in a fair, unbiased manner.”  He went on to say that the Village has no interest in the political beliefs of its employees.

While the digital element sometimes creates confusion, first amendment claims for public employees are not new.  In Tindle v. Caudell a police officer was suspended for offensive off-duty conduct after attending a Halloween party dressed in black face.  The Eighth Circuit rejected the plaintiff’s claim that his conduct was protected under the First Amendment.  They held that, even if his conduct was protected, his expressive rights must be balanced against the interests of the police department.

Although people have been using vulgar and embarrassing phrases to describe politicians since the inception of the democratic process, the advent of social media has amplified conversations that were once considered private.  Should police officers be held to a higher standard than the average citizen for conduct and statements made while off-duty?  Should the fact that the statements were believed to have been protected by online privacy settings make a difference?

“Happy Valentines Day :)”

There can be no doubt that social media has changed our society; changed the way we communicate, the way we obtain information, and, even now, the way we advocate. Social media has developed from a communication tool to a public forum  that individuals use to judge one another.

In the recent weeks the National Football League (NFL) has been put under the lens of the social media microscope. First, Michael Sam, a highly decorated collegiate football player, declared that he was a homosexual male. Once drafted, this will mark the first time in the league’s history that a player who is openly homosexual will play the game. Although many athletes have declared their sexuality once they retired, no player had previous declared such sexuality while playing the game. Of course, Sam’s declaration was thrown into the social media fire. His courage, strength, and self-confidence was met with overwhelming support as athletes from various profession sports chimed in on the topic. Players from various NFL locker rooms took to Twitter and Facebook to support Sam and his journey to the NFL. In the eyes of the public, the NFL gained even more repute than it had previously.

Today, however, the NFL and some of its more notorious players have been summoned to the court of social justice located in the realm of social media. This morning, Ted Wells, an NFL investigator, released a 144 page report documenting instances of hazing, racial slurs, and other degrading behavior performed by Richie Incognito and other Miami Dolphin’s players. This controversy began in October 2013 when Incognito’s teammate Jonathan Martin quit profession football and was hospitalized for mental health. The NFL swiftly jumped in and hired Wells to conduct an investigation.

In reaction to this incident, many took to social media. Some individuals, including NFL players and analysts, believed that Martin was over reacting and should have confronted Incognito. Others rallied behind Martin and deemed Incognito a bully. But no matter what most people believed, expectations changed with the release of the 144 page report. On Espn’s NFL Insiders, airing 3pm Eastern Time, tweets were read indicating the shock of most at the findings. One individual, who was skeptic that Martin’s allegations had merit, admitted that their perspective had changed.

In the shadow of this controversy is Incognito’s tweet from Wednesday stating, “The truth is going to bury you and your entire ‘camp’”. Incognito took to twitter again today after the report had been released, “Pleeeeease Stop The Hate. Happy Valentines Day :)”.

In a controversy as notorious as this, involving a league as acclaimed as the NFL, all eyes are now fixed upon Roger Goodell and other NFL officials. In today’s society, social media has become the quintessential courtroom and all of us, the jury. We obtain information from social media and use it to make “informed decisions.” Then, we use it to either condemn or exonerate those in the spotlight. Social media, whether we like it or not, has become a mechanism for impacting societal justice. This trend will only grow in the future and attorneys should be ready for trial by Twitter.

For more information see ESPN’s web article entitled “Incognito, others tormented Martin”.

 

YELP and the Anonymous User

Yelp, a popular website where customers post reviews, allows users to post anonymously or by using their log in. When a business claims to be harmed by an anonymous review, how quick should Courts be to require that Yelp give the information behind the “anonymous” user in order for a business owner to pursue a defamation claim?

In January 2014, a Virginia carpet cleaning company suspected that seven reviewers who posted negative reviews made up the reviews altogether. In fact, Hadeed Carpet claimed that the seven reviewers were never even customers of the company. The Court believed that Hadeed had sufficiently reviewed company records, supporting their claim that the reviews were not written by actual customers of the carpet company, and therefore were defamatory.

Opponents to the Court’s ruling argue that Virginia’s standard for the claim of defamation is too weak, and that Haddad did not put forth any real evidence that these reviews were not written by real customers.

While my tendencies may not speak for the majority, Yelp reviews play a huge part in my decision to visit a restaurant, spa, or store. Negative reviews lead me to search for the next best place. Businesses should be able to protect themselves from fake reviews. If Courts are able to determine a balanced standard, the interests of free speech and protection against defamatory claims can be reached.

How will Courts balance these competing arguments? How easy will it become for a business owner who received an anonymous negative review to obtain the user’s real data from Yelp?

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?

 

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