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?
Teachers Know If You Don’t Do Your Homework
A New York Times Article was published today that discusses CourseSmart, a program that allows teachers to track their student’s progress with digital textbooks. CoureSmart allows users to read , highlight, and take notes digitally. CourtSmart tracks this data–what page the student has read up to, what they highlighted and wrote down–which is then sent to the students’ teachers. Not only does CourseSmart track this data, but it also individually packages for each professor information on the students in the class.
The article states that according to surveys conducted by CourseSmart, there are few privacy concerns. In addition, it states “being watched is a fundamental part of the world they [students] live in.” But should faculty be privy to this information? While one of the goals of the program is to discuss and teach students how to read more analytically, should faculty even be allowed to monitor students when they are outside the classroom? Is this an illegal search and seizure under the Fourth Amendment?
In addition, there are long-term repercussions. If students are constantly being monitored and don’t keep up with their work, what will happen when students are no longer watched over? In school, if I didn’t do my homework on time or read and study for a test, it was to my detriment; I would get poor grades for homework and exams. The same is when one enters the workforce. Employers will not always monitor your work progress; if you don’t get things in on time and do the work necessary to create a good product, there will be repercussions. If students are not taught to monitor themselves, will this hurt them in the long run?
See: http://www.nytimes.com/2013/04/09/technology/coursesmart-e-textbooks-track-students-progress-for-teachers.html?pagewanted=2&_r=0&hp
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.
Illinois Appellate Court Rules Teens Twitter Posts Not Relevant in Child Custody Hearings
Earlier this month, the Third District Appellate Court in Illinois ruled that evidence of a teen’s twitter posts “did not support a change” in a decison to refuse a second in camera interview the minor children. The case, R.M. v.D.Z. (Not reported in N.E.2d, 2013 Il App. 3d) concerns a challenge to a decision awarding custody of 5th grade twin boys to their mother, R.M. R.M. has an older daughter, K.M., who, at some point after the custody award, posted tweets including ““drinking with my mom … now I know why I only drink wine” and “drinking Bailey’s with my mama.” and “I love drinking with my mom LMFAO.”
The father of the boys, D.Z. argued that these tweets gave rise to reconsideration of the child custody issue, or at a minimum, to allowing a second in camera review of the children to get a sense of their comfort with living with their mother. When considering the relevance of the tweets, the appellate court agreed with the trial court’s conclusion that “it’s become apparent to the court after hearing many of these types of cases now that young people don’t put the normal every day occurrences of life on their Twitter account postings. * * * And trying to rely upon Twitter account postings or MySpace or Facebook as proof of facts, actually things that have happened, just can’t be done—especially with young people.”
Did Justice Alito Sanction Court’s Lag Behind Technology
It has been said, many times, that the court system lags dramatically behind technology. All to often, courts must play catch up – or often gerrymander common law doctrine – to fit previously unforeseen complications from the Internet. (think trespass to chattels and spam). During oral arguments in Hollingsworth v. Perry, the recent challenge to California’s Prop. 8, Justice Alito reminded those following the case, that the proper role of the Court is one of reflection and not necessarily trailblazing. Speaking to counsel for those opposing Prop. 8 Justice Alito said, “You want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cellphones or the Internet?” Sounds like those who question the speed with which courts react to issues of social media have their answer. Justice Alito says take your time!
Bridgewater-Rartitan High School, in Bridgewater, N.J. earned notoriety this morning following news that students had initiated an on-campus “fight club”and then posted videos of fights on Facebook. School officials have taken disciplinary action against those who allegedly engaged in the fights, but acknowledged that it has no jurisdiction over Facebook activity. It is true that the long reach of the arm does not stretch to conduct outside of school (and presumably the posts were created off-campus after school hours) but perhaps this is an instance where the law should be changed. Does the fact that students are posting violent crimes that occurred on school property during schools hours create enough of a nexus to justify school regulation? Or, should the First Amendment, and presumably good parenting regulate how the student conducts him or herself outside of school?
Should Blogs Enjoy the Same Defamation Immunity as Newspapers?
Blog posts are not entitled to the same immunity from libel as are newspapers or other periodicals… at least in Texas. The issue was resolved in a district court case steming from posts made by a former patient of the University Behavioral Health of Denton (UBH), “a free standing psychiatric hospital specializing in mental health and chemical dependancy care.” Brenda Wells, a former patient of the hospital, among other things maintained a blog on which she posted defamatory comments that accused hospital staff of unprofessional and even criminal conduct. Wells tried to defend the claim arguing, that not only were the blogs not defamatory, but that her blogs were protected under a Texas Law, which prohibits libel claims against newspapers and periodicals. Wells argued that her blogs, which were published, were akin to the type of media receiving defamation immunity and therefore should be protected under the law. The U.S. Discrtice Court for the Eastern District of North Carolina disagreed, finding that because ” “[p]ostings on the blog are not published at regular intervals. They are not composed of articles, news items, or the like.”
The decision in the case, Ascend Health Corp. v. Wells (here), may make sense in this particular instances, but I can think of a lot of blogs that have the sophisticated and regular type of content of which many newspapers and periodicals boast. What about blogs that are maintained by newspaper reporters? Such blogs would not receive immunity under this case. This is one decision that I think should be revisited. Thoughts?