Prof Pedram Tabibi
Social media and the Law
Introduction to Social Media Law / Social Media & Content
1. Current Social Media Trends. How has social media amassed over a billion users and what do these users do on social media?
2. Why social media law? What has caused social and digital media use to proliferate and, along with it, a variety of social media legal issues?
3. Employees v Employers
a. Content Ownership in Social Media Employees are social media brand ambassadors on social media platforms, and increasingly spend time at work both on personal and business social media accounts. As a result, the question of who owns social media content has arisen.
b. Twitter case:
· PhoneDog v. Kravitz: US District Court on whether Twitter accounts and their passwords could be company property or trade secrets. In this case a mobile device news website sued Kravitz, its former employee, after Kravitz refused to turn over password information for the Twitter account he developed and cultivated during his employment.
· Phonedog then brought suit with four claims against Kravitz (1) Misappropriated Trade Secrets (2) Intentional Interference with Prospective Economic Advantage (3) Negligent Interference with Prospective Economic Advantage and (4) Conversion.
· When Kravitz asked the court to dismiss this case, the court held that Twitter accounts and their passwords (as described by PhoneDog) could constitute trade secrets and that failure on behalf of the employee to relinquish an account could constitute misuse of a trade secret or “trade secret misappropriation.”
· This case is often cited in arguments for the importance of including clauses about social media account ownership in employment contracts. This could also make the big company look bad by going after the little guy.
ü Who owns Twitter followers?
ü What is the value of a Twitter follower? Nothing, hard to prove
ü What could the parties have done differently here? Signed a K
c. Linked-in case:
· Eagle v. Morgan(E.D. Pa. Mar. 12, 2013) Eagle, the former CEO of a banking education company, sued her former employer Edcomm following her termination from the company. After Eagle’s termination, Edcomm allegedly changed the password for her LinkedIn account, preventing her from accessing it, and then replaced her name and photo with that of Sandy Morgan, Eagle’s replacement
· Eagles claims: unauthorized use of name, invasion of privacy by misappropriation of identity, misappropriation of publicity, identity theft, conversion, tortuous interference with K
· Although these facts enabled Eagle to successfully prove her claims of invasion of privacy by misappropriation of identity, misappropriation of identity, and unauthorized use of name in violation, the court found that Eagle had failed to plead damages with certainty, and therefore, she could not recover damages
ü So who owns social media content? The Eagle case suggests that the owner of the LinkedIn profile does, even when that owner expressly directs the company's staff to maintain and develop some of the content– in the absence of crystal clear employer policies, it will likely be the employee.
ü The case serves as a reminder of the difficulties of placing social media, such as LinkedIn accounts, into existing intellectual property framework. Furthermore, the case suggests that employers need to be proactive and develop social media policies and ownership agreements concerning social media accounts before the need actually arises. Agreements and policies should establish who owns the company social media account, and specify a procedure for returning login information upon termination. Employees should be reminded of the agreements and policies at the time of termination and employers should ensure that they obtain the relevant usernames and passwords. Additionally, the company should register or create the account, and change the password at the time of termination in order to avoid confusion. Agreements and control over the account are key in such disputes, as they are determinative to who actually owns the account.
d. Written Agreements
· Ardis Health, LLC v. Nankivell: Nankivell was responsible for Ardis’ social media marketing. When he left the company, he refused to turn over the access information to various accounts. The court forced Nankivell to turn over the information because, in this case, Nankivell had signed an agreement specifying that the account information belonged to the company. The key here is that Ardis Health made Nankivell sign a written agreement.
· The court held that the D had to provide the access info as “plaintiffs depend heavily on their online presence to advertise their business which requires the ability to contentiously update their profiles and pages and react to online trends. The inability to do so unquestionably has a negative effect on P reputation and ability to remain competitive…such injury constitutes irreparable harm”
· In most situations, if both sides have a written agreement spelling out who owns what – the profiles, the access info, the content, the followers – these types of controversies can be avoided. You don’t want to have to convince a judge and jury that these are your followers or your content.
e. How attorneys can help clients avoid the growing legal issue:
ü Social media policies tailored to each company
ü Employment agreements assigning ownership rights to any work material or content the employee creates during employment period to the company
ü Confidentiality agreement that where applicable and appropriate, incorporate social media into the definition of confidential information or prohibit the disclosure of confidential information via social media
ü Employment agreements can address the issue via non-solicitation and non-compete in social media with specific references to social media.
Ø Such agreements should be tailored to the specific individual and situation.
Ø Consider a provision on whether a former employee can use social media to inform connections, friends, etc (a list that may include current company clientele) about a new job or employer.
Ø Said it was uncontested that the P own the rights to the Access information.
f. Who owns a Facebook “Like”?
ü Mattocks v BET: Mattocks argued that the page’s “significant number of likes” provided her with business opportunities based on companies paying to have visitors redirected to their sites from the page. BET moved for summary judgment.
ü The court held that Mattocks (P) conversion claim failed because Mattocks failed to establish that she owned any property interest in the “likes” she accumulated on her Fan Page. Facebook “likes,” the court noted, are merely an expression by a Facebook user that he or she enjoys or approves of the content. Such “likes,” once given by a user, may be freely revoked if the user clicks “unlike.” Because the owner, if any, of a “like” is the individual user and not the creator of the Facebook page, Mattocks lacked a proprietary interest in the “likes” and BET therefore could not have converged them from Mattocks.
ü Even if the “likes” were capable of precise definition, Mattocks did not have exclusive possession or control of the “likes”, nor could she have established a legitimate claim to exclusivity
ü A like= $0.
LABOR AND EMPLOYMENT
A. How has employee social media impacted the landscape of employer policies and employee rights?
1) Congress enacted the National Labor Relations Act (“NLRA”) in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy
2) Section 7: RIGHTS OF EMPLOYEES
i. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].
3) Section 8a1: makes it an unfair labor practice for an employer to interfere with or coerce employees in exercising their rights under section 7 of the BLRA. An employer violates section 8a of the act by maintaining a work rule that would reasonably tend to chill employees in their exercise of their section 7 rights.
4) NLRB protects employees rights to engage in concerted activity which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees bringing group complaints t the employers attention, trying to induce group action or seeking to prepare for group action.
5) The Board continues to closely scrutinize social media policies. Employers should recognize that language which is general or establishes subjective standards, such as “inappropriate discussion,” will raise a red flag for the Board unless accompanied by examples that make it clear to a reasonable employee that the general language is not intended to encompass protected speech. Relatedly, employers should expect the Board to closely scrutinize any disclaimer before relying on it to “save” policy language from invalidation. Such disclaimers have not been very helpful overall in terms of avoiding NLRB problems.
a. Costco Wholesale: a 3 member NLRB panel found Costco violated section 8a1 of the NLRA by prohibiting employees from posting statements that damage the company defame any individual or damage any persons reputation. It found employees could reasonably construe this rule as on that prohibits section 7 activity and would tend to chill employees from exercising section 7 rights. In short, if employees went online to discuss pay, safety issues, or some other issue that might critize Costco, the broad prohibition in the employee agreement would make employees think twice b4 posting such issues.
b. Karl Knauz Motors Inc: an employee handbook rule that employees be respectful and courteous can also be unlawful. The NLRB ruled that a company violated section 8a1 of the NLRA by maintaining a rule in its employee handbook which stated:
i. Courtesy is the responsibility of every employee; everyone is expected to be courteous, polite, and friendly to our customers venders and suppliers as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the dealership.
ii. NLRB found the courtesy rule was unlawful b/c employees could reasonably construe the prohibitation against the disrespectful conduct and language to include section 7 activity.
c. Conversations between Employeesà Hipsnanics United of Buffalo: violated section 8a1 of the NLBA by firing 5 employees for facebook comments written in response to a co-worker criticism of their job performance.
i. Ms. Cruz-more texted Cole-rivera that she wanted to discuss her employee performance concerns with executive director Ms. Iglesias. From her personal home computer, Ms. Rivera posted FB “Lydia cruz a coworker feels that we don’t help our clients enough at Respondent Ive had it! My fellow coworkers how do you feel?” à 4 off-duty employees responded via FV posts and generally objected to Cruz-Moore assertions.
ii. Ms. Moore found out, complained about the comment, and on the following Monday, the boss fired Ms. Rivera and her 4 co-workers stating their remarks were bullying and harassment and violated respondents 0 tolerance policy
iii. The judge help that the employees activities were concerted under section 7- they were taking a 1st step towards taking a group action to defend themselves against the accusations they could reasonably believe Moore was going to talk to management—“even assuming that the 0 tolerance policy covered the comments the respondent could not lawfully apply its policy without reference the board law”
a. Thus, employers must be aware of the fact that discussions on social media, including those that are made away from the employer's computers and off working hours, can have significant implications. An informal discussion between a small group of employees about a coworker can be considered concerted activity that is protected by the NLRA. Thus, when employers become aware of such discussions, they must be careful in how they respond to the same.
d. Liking a Postà Triple Play
i. The principal issue in this case is whether the respondent violated section 8a1 of the act by discharging 2 employees for their participation in a FB discussion involving claims that employees unexpectedly owed state income taxes b/c of the respondents withholding mistakes. We agree with the judge that the discharges were unlawful. The respondent violated the act by threatening employees with discharge for and interrogating employees about their FB activity as well as informing employees they were being discharged b/c of the FB activity.
ii. The employer (respondent) had a handbook for employees that stated “engaging in inappropriate discussions about a company, management and or co-workers, the employee may be violating the law and is subject to disciplinary action”—the NLRB found this violated section 8a1 of the NLRA.
B. NLRB Policies
· Rules that are ambiguous as to their application to section 6 activity and contain no limiting language or context that clarity to employees that the rule does not restrict section 7 rights are unlawful
· Rules that clarify and restrict their scope by including example of clearly illegal or unprotected conduct are not unlawful
· If you have a policy, you can not be vague in addressing social media policies
· Any provision stating “think carefully about friending coworkers on social media sites” is unlawfully overbroad as it would discourage co-worker communications
· A policy should provide sufficient examples of egregious conduct or prohibited disclosures
· A provision that states “don’t release confidential information” is unlawful bc employees would reasonably interpret such a prohibition to include info concerning terms and conditions of employment.
· A provision that states “no unauthorized postings: users may not post anything on the internet in the name of the employer or in a manner that could reasonably be attributed to employer without prior written authorization from the presidentà lawful provision bc It doesn’t restrict employees exercise of their Section 7 rights.
C. What are some effective ways for employers and employees to address social media in the workplace?
· Employers should consult with counsel before firing an employee for allegedly defamatory or disparaging speech when that speech takes place in the context of a group discussion in social media related to work.
· Do not make a snap decision, bring in people, make sure the employee knows the issue at hand, and make an informed decision. Consequences for making bad decision about what penalty could be immense.
Social Media and the Hiring Process
A. Some employees are asking applicants and students to provide access to their social media accounts. While this practice may yield additional information it may also subject employers to liability from the state and federal laws
B. We will examine instances where employers and educational institutions requested indivduals to provide social media account passwords and the associated risks
i. Violation of social media platform policies
ii. This practice subjects employers and schools to potential liability under the anti-discrimination provisions of multiple NYS and Federal laws
i. Justin Basset, a NYC statistical, interviewed for a job and was surprised when interviewer requested his FB username and password. After answering some questions about his character, the interviewer turned to her computer to find Bassets FB profile but could not see the private profile. The interviewer then asked Basset for his FB login info but Basset refused to provide his FB login info and withdrawn his application
ii. Kim Hester, a teachers aid, was suspended after allegly refusing to show her FB account to a school superintendent. As a result, Hester received a letter from a school director and was eventually suspended with paid administrative leave.
iii. Maryland Department of corrections officer Mr. Collins complained to the American civil liberties union tha he was forced to provide his FB username and PW during an internview. The ACLU filed a complaint prompting the Maryland department of corrections to suspend its policy of asking job
d and find four possible addresses for the daughter. After repeated efforts and dead end leads, the process server still can’t serve the daughter, so Chase asks for permission to serve by (1) “private FB message”; (2) to the email address listed on the FB profile; and (3) delivery of the summons and complaint to Fortunato (the estranged mom).
i. After failing to find Nicole at any of the addresses, Chase asked the judge for permission to use alternate methods to serve her (normally, courts allow only a few ways to perform “service” and asked for FB
ii. Held: did not allow to use FB and stated that they should put it in newspaper publicationà Chase did not offer any such evidence, and did not offer any evidence that the FB profile in question was the daughter’s. Anyone can make a FB profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the the third-party Defendant was to be served.
· FTC v PCCare247: The FTC alleged that the defendants, Vikas Agrawal, Anuj Agrawal, Parmeshwar Agrawal, PCCare247 Solutions Pvt. Ltd., and Connexxions IT Services Pvt. Ltd., all located in India, “operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers.” Tried to serve them but they were not responding to anything.
i. Held. Service by email and FB is OK
ii. “Service by email and FB are not among the means listed in article 10 and idnia has not specifically objected to them…service by FB is clerly outside the scope of article 10. India has not objected service by FB and the court knows of no international treaty prohibiting such means. Therefore service by means of email and FB is not prohibited by international agreement. The court in its discretion is at liberty to authorize service by such means provided that due process is satisfied.
iii. The FTC proposal to serve D by both email and FB satisfies the due process inqury. Where D run an online business, communicate with customers via email, and advertise their business on their FB page, services by FB and email together presents means highly likely to reach defendants.
· FTC v Pecon Software: FTC proposes to serve four individual defendants by FB message. To verify that the FB accounts, the FTC compiled a table summarizing the info that its investigator obtained from FB. However, unlike in PCCARE, the FTC has not supplied the court with actual screenshots of the D FB page. Many of the D had common names. At times the email addresses used by the D have varied, as have the corporate entities with which the D have verified. Court cant say with confidence without totally viewing the FB pages and verifying the info allegedly listed there, that service by fb message would be highly likely to reach the D.
i. In Marzak, the FTC proposes to serve D through FB. The FTC represents that D registered his FB account with the same email addresses that he used to set up paypal accounts used in the alleged scheme. However, as discussed in partII, the court cant find verification on the record that D used these email addresses. Court cant conclude that D is “highly likely” to be reached by service through FB
· FTC v Pecon Software II: granted FB motion. D used FB email address to register a Skype and a Paypal account used in the scheme. D used this email to contact FTC after receiving notice of this case. D’s FB account lists “global innovative services” one of the entites alleged to be involved in the scheme. D’s former attorney also stated that D uses this account. The court found a high likelihood that D would receive service at the proposed email addresses and by message to his FB account.
· Joe Hand Promotions v Shepard: Plaintiff Joe Hand Promotions, Inc. made several unsuccessful attempts to serve defendants in Missouri under the traditional methods of service. The plaintiff then requested permission to serve the defendants by attaching a copy of the summons and complaint to a message or an e-mail, which would be sent to the defendants' Facebook accounts.
i. The plaintiff argued that service by Facebook is similar to service by e-mail, which is authorized by FRCP 4(f). The court rejected this argument, finding that FRCP 4(f) only applies to service on foreign defendants. The court noted that the cases in which service by e-mail has been permitted all involved foreign defendants.
ii. Held No, not allowed.
a. The court concluded that FRCP 4(e) does not allow e-mail as a means of substituted service on domestic defendants unless applicable state law permits it (which Missouri law does not). Because service by process through e-mail is not permitted, the court found that service through Facebook is certainly not allowed.
b. The court also noted that the plaintiff had not fully exhausted its efforts to serve the defendants and found that the plaintiff could have attempted service through other means authorized under FRCP 4(e).
· WhosHere v Orun: US District Court for the Eastern District of Virginia held that service of process on a defendant in Turkey delivered by e-mail and through Facebook and LinkedIn was permissible under the terms of the Hague Convention and comported with constitutional due process requirements.
a. Found that service of process through all 4 means of service, two emails and two social media accounts belonging to the D, comports with due process b/c it is reasonably calculated under the circumstances to provide D with notice of this suit. These 4 methods are highly likely to provide D notice of this litigation, b/c D himself provided P with these email contacts and also referred P to the social networking profiles which appear to be regularly viewed and maintained by D
D. Benefits to social media services
1. Cost- service via social media may be less expensive then other alternative methods
2. Speed- social media service is much faster than traditional methods
3. Might be more likely that an individual will receive notice via FB or twitter then via a local publication
4. Verification- with technology, such as online time stamps and receipts indicating that message has been received
E. Factors attorney should consider in seeking court approval for social media service
1. Authentication that the account belongs to the correct individual via the contact in the account, such as bday, current city, hometown, photos, videos, education, or work info
2. Provide evidence that the account has been recently used
3. Provide supporting evidence that the social media account is correct account via emails and other accounts
4. Provide evidence that social media account has friends, followers, or connections tied to other individuals or parties in the matter.