One More Reason For Parents To Freak Out About Facebook: They Might Be Liable For What Their Kids Put On There!

 As if it weren't enough that all good 'Muricans had to be very afraid of The Ebola, ISIL, the repeal of the Second Amendment by Executive Order, being able to get affordable health insurance or having other people be able to marry their choice of mates, now they have to be afraid of being liable for texts or for libelous stuff that their offspring cut and paste on the Facebook.

A Georgia court, in a cast styled Boston et al v. Athearn et al, has held that there may be a question of fact sufficient to survive a motion for summary judgment in a case involving parents being sued for the Facebook shenanigans of their offspring.

It seems that Dustin (13 at the time) and Melissa created a fake Facebook page ostensibly for one of their classmates, Alex.  Dustin used a computer supplied by his parents and the family internet account to do this.  Dustin and Melissa posted altered and unflattering pictures of Alex and used the account to do status updates suggesting that Alex had racist views and was gay.  The impish scalawags also used the fake account to post comments on other classmates' Facebook pages that were graphically sexual, racist or suggested that Alex was taking drugs for a mental condition.  Kids will be kids, amirite?

Alex's parents contacted the school and Dustin admitted his transgressions.  His parents learned of this in May of 2011 and grounded Dustin for a week.  However, his parents did nothing to cause the fake account to be taken down and Alex's parents sued them in April of 2012, alleging, inter alia, that they were negligent in failing to supervise or control their child.   

Dustin's parents filed a motion for summary judgment, claiming that as a matter of law, they were not liable because the actions that led to this took place before they were aware of it and therefore it was not foreseeable.

The Court held that there was a question of fact in that a jury might find that the failure to take any action to remove the offending material for several months after finding out about it was the proximate cause of some of Alex's injuries.  The Court therefore denied a portion of the motion for summary judgment.

It should be noted that this does not mean that the parents are liable, only that the question may be allowed to go to a jury and not dismissed early by the Court.  So, stay tuned to see how deep in the doghouse Dustin gets and whether he gets written out of the will.

Update: Website Operator Still Has "Complete Immunity" Even When They Are "Appalling"

In another of a series of victories for website operators, a Florida appellate court has found that a website operator enjoys (that truly is the right word) "complete immunity" for anything posted on their website. 

You will remember that we reported on a similar case involving PissedOff.com,

The defendants in the instant  matter operated a similar enterprise called "The Ripoff Report", which similarly encouraged people to post disparaging remarks about people and businesses.  In this situation, a graduate of an addiction treatment facility alleged that the owner was a felon, the facility was dangerous and they disbursed illegal medications.  The proprietor of the site consistently refused to take down the offending post and even when the poster was the subject of an injunction which forbade her to leave the complaint on the site and the poster begged the site to take it down, the website operators refused.

In spite of all this, the court found that Section 420 (how appropriate for today, pot joke to follow) of the Communications Decency Act ..."creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service."

This is true even though the court  thoroughly disapproved of the website's business practices (they offered reputation cleanup services for a large fee, much akin to PissedOff.com).

So, you have to do more than just be "appalling" to remove yourself from the CDA's umbrella of protection.

Better To Be Pissed Off Than ... Well, You Know.

PissedConsumer.com is a website that encourages consumers to complain about companies and products.  When a complaint is lodged, PissedConsumer creates subdomains and metatags using the name of the product or company complained about in the name, e.g. productname.com/titleofpostedcomplaint.html.  PissedConsumer then uses a third party to post advertisements on the complaint pages for competitors of the product or company complained about.  Opinion Corp. is the company that owns and manages PissedConsumer.com.  As an additional service, Opinion Corp. offers to help remedy the negative impact of the complaints in a number of ways and for a substantial amount of money.

Ascentive, LLC (software company) and Classic Brands, LLC (mattress manufacturers) were the victims of negative comments on PissedConsumer.com and separately brought suit against Opinion Corp. and some of its officers individually.  Their suits were consolidated for the purpose of this action.

The plaintiffs (Ascentive and Classic Brands) alleged a number of causes of action, including a request for a preliminary injunction to disable the offending pages, counts under the Lanham Act and counts under the Racketeer Influenced and Corrupt Organizations Act ("RICO"). 

The counts under the Lanham Act centered around the plaintiffs' claims that the use of their trademarks in the subdomains and in metatags constituted trademark infringement, unfair competition and false designation of origin.

For the RICO allegations, they allege that the defendant's "Reputation Management Services", which allow companies (for a large fee) to respond to the reviews and alter the format in which the reviews appear were tantamount to bribery and extortion prohibited by the RICO Act.

The Court applied the preliminary injunction standard, which requires that such an injunction issue only if the plaintiffs have demonstrated a likelihood of success on the merits.

Applying this standard to the facts, this Court found that there was no likelihood of confusion as any reasonable user would understand that this was a gripe site and not a competing site and that the use of plaintiffs' marks as described did not result in such confusion.  In addition, the defendant plead that they were insulated from liability under Section 230 of the Communications Decency Act because they were an "interactive computer service" and therefore not liable for the defamatory comments of their users.  The Court agreed.

Consequently, the Court found that the plaintiffs had not demonstrated a likelihood of success and denied the motion for preliminary injunction even though the Court expressed some uneasiness about the defendant's business practices and ethics, e.g. eliciting (some say creating) complaints, advertising such complaints, engaging in search engine optimization to cause the complaints to appear higher in the search rankings and then charging fees to cure the situation they had created.  "Ethical obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp."  Lyrical, but little consolation to the plaintiffs.

Anonymity On The Internet. What a Concept!

You will recall that we have discussed a few cases regarding anonymity on the internet.  In one, which involved a potential securities scam, the court removed the anonymity from some people that were involved in the alleged scheme. 

In another, the court allowed the anonymity of some detractors of The Art of Living Foundation to continue for a while.  After publishing the post, we received a call from the attorney for The Art of Living Foundation, who indicated that he thought our post was more even handed than some regarding this subject, but he would like to send us a letter from the president of The Art of Living Foundation explaining their position.  We were amenable to that and a copy of that letter follows.  We reproduce it without comment nor endorsement.  When we asked about the progress of the case, the attorney indicated that he felt the judge would rule in a manner that would allow them to obtain the identity of their detractors in the near future.  Any updates from any of the participants would be appreciated.

 

Who Owns Your Social Media Account? You Or Your Employer?

Here's the situation:  You establish a Twitter, Facebook, LinkedIn, etc. account while you are employed and use the account to tweet, post, blog, etc. about your employer.  Then your employer falls out of love with you and you are no longer employed.  Who owns your followers on Twitter or your Facebook or LinkedIn account?  That's a really good question and one that the courts are dealing with right now.

Rich Sanchez was an anchor on CNN and has a Twitter account with the handle: "richsanchezcnn".  Rich was rendered unemployed because of some ill advised statements he made.  So, does CNN own the account or was Rich popular with the Twitter followers because of his good looks and sex appeal or because he was on CNN?  Should he have to change his handle?  This was settled out of sight, so we don't know what happened there.

On another front, a company called PhoneDog LLC filed a suit against former employee Noah Kravitz.  Noah tweeted while an employee of PhoneDog under the name "PhoneDog_Noah" but then changed it to "noahkravitz" after the break up.  PhoneDog alleges that Noah's 17,000 followers are worth $2.50 per month for 8 months and are asking for a $340,000 judgment against our friend Noah.  PhoneDog has, for the moment, survived a motion for summary judgment with the judge finding enough question of fact about "trade secrets" in the account to let the case go on for a little longer.

Then there's the strange case of Dr. Linda Eagle, who was one of the original founders of Sawabeh Information Services.  As is the case sometimes, all the founders were fired and Sawabeh alleges that it owns Dr. Eagle's LinkedIn account and that she has somehow "misappropriated" her own  account.  As you know, most LinkedIn accounts (as was Dr. Eagle's) are in the employee's name alone and refers to the company in the employment history and in the connections established.

We have explored the issues of who owns clients of an LLC and whether a toxic ex-spouse might have some rights in a patent in a community property state, but this is an area of the law that is developing.

In most instances, this is probably not a huge issue but employers who want to have control over these accounts (and the wisdom of this should be evaluated thoroughly), should provide guidelines in the social media section of their employment rules.  If stated clearly, there seems to be no reason why the employer would not be entitled to control and ownership of such accounts if they fall into the parameters set out in such policy.  Otherwise, it's pretty gray.

OK, Maybe You Can Be Anonymous And Your Scream Can Be Heard In Cyberspace.

Hard on the heels of the Doe v. SEC case discussed in the immediately preceding post, another case where anonymity is sought comes through the Northern District of California.  In Art of Living Foundation v. Does 1 - 10, the plaintiff seeks the identity of one of the defendants in an action for copyright infringement, among other things.

The plaintiff is an international foundation that teaches the philosophy of Ravi Shankar, the spiritual leader, not to be confused with famed sitarist, Beatles confidant and Norah Jones' father of the same name.

One of the defendants goes by the online pseudonym of Skywalker and has been critical of the teachings of the Art of Living Foundation.  In addition, Skywalker put one of the manuals used by the Foundation online.  The Foundation sued Skywalker and others for defamation, copyright infringement, trade libel and misappropriation of trade secrets.  The Foundation moved for a subpoena to Skywalker's blog host seeking Skywalker's identity.  Skywalker, anonymously, through an attorney, moved to quash.  The magistrate allowed the subpoena and Skywalker brings this appeal.

The magistrate applied the standard of Sony Music Entertainment Inc. v. Does 1 - 40, 326 F. Supp. 2d 556 (S.D.N.Y., 2004) and found that Plaintiff had alleged a prima facie case of copyright infringement due to the online publishing of the manual, the subpoenas were targeted to obtain information to identify the defendant, Plaintiff had no other means to identify Skywalker, without such identity, it would be prohibitively expensive to conduct discovery and even if Skywalker had engaged in protected speech, he had no expectation of privacy because "the First Amendment does not shield copyright infringement".

On appeal, Skywalker alleged that because his speech concerned a matter of public interest, the Court should apply the more rigorous standard used by Highfields Capital Management L.P. v. Doe, 385 F. Supp. 2d 969, 975-76 (N.D. Cal. 2005).

The Court of Appeals stated that the more rigorous standard in the Highfields case required (in addition to the factors considered by the magistrate) that the court balance "the magnitude of the harms that would be caused to the competing interests" by their ruling.  The Court held that because of the nature of Skywalker's speech (i.e. more political, religious or literary rather than commercial), the Highfields approach balances the parties' interests better than the Sony approach.  The Court also found that evidence of copyright infringement does not automatically remove the speech at issue from the scope of the First Amendment.

The Court found that, to the extent that Skywalker's anonymity facilitates free speech, the mere disclosure of his identity is itself an irreparable harm and that the plaintiff can continue its case, in view of the fact that Skywalker has been participating in the case through his attorney.  The Court quashed the subpoena.

It is possible that the Court would have reached a different result if Skywalker had not removed the manual from his blog because of a DMCA take down notice or if Skywalker had not been actively involved in the lawsuit.  In any event, Skywalker remains anonymous for a while.

New .XXX Top Level Domain Approved. The Steps You Need To Take Now To Insure That You Don't See a [yourname].XXX Domain In The Future!

You may have read recently that ICANN (Internet Corporation For Assigned Names and Numbers) has approved the new top level domain (TLD) of .XXX.  Obviously, this is intended for the adult entertainment industry and TLDs with that extension will begin to be issued in the near future.  However, aside from any passing prurient interest you may have in mentioning this factoid in social chatter, does this affect you in any way?

It does if you would not want to Google your name, trademark or tradename in the future and find that name with a .XXX extension.  So, if  you are concerned that this might happen either because someone might want to take advantage of the popularity of your name or you have a really sick friend that might want to hold this over you as a pathetic practical joke, here is what you need to do now.

ICM Registry has obtained the rights to act as the registrar for the .XXX domain.  They have set up a procedure to address your concerns about having your name or tradename associated with a .XXX domain.  The procedure is referred to as Sunrise A, B and C and offers you two avenues to avoid the result we describe above.  Obviously, one avenue would be to apply for all the domain names you want to protect with the .XXX extension and then just not use them for anything.  However, you would still show up in a search on WHOIS as the owner.  This is the Sunrise A procedure.  The preferred route would be Sunrise B, which allows domain holders and trademark holders to apply to block use of those names with the offending extension.  This is the explanation from the ICM website:

"Sunrise B is for rights owners from outside the [adult entertainment industry]. Names secured through Sunrise B will not result in the registration of a conventional, resolving domain name at the .xxx registry. Instead, these names will be reserved and blocked from live use. The applied for string will resolve to a standard plain page indicating only that the string is reserved from use through ICM’s rights protection program."

Since time could be of the essence, head over to this site or have someone do it for you and open an account and apply to reserve the appropriate names.  At some point in the process (after the original submission), you may be asked to prove you have the rights to the names so be prepared to do that. 

Now, don't you feel better?

"Unvarnished: Controversial Yelp for Individuals" - Anonymous

Almost everyone has a Michael Scott or a Dwight Schrute in their office, and if you’re not sure you do, just be glad there aren’t cameras following you around all day because you’re likely that guy. Everyone at one time or another has had a frustrating time with their boss or coworker. However, we’re not all clever enough to make that situation funny enough to watch on a Thursday night. Most of the time, if we want to relieve some of that job-related stress we go to a trusted friend or colleague to vent, but what if we could tell our boss what we think … and do it anonymously?

The folks at Unvarnished are working on giving you just such a venue. Unvarnished has been described as a Yelp for individuals, in that, you can leave comments and rate someone’s work performance. However, when a commenter leaves a remark on your page not only is the commenter anonymous, but good luck trying to get that comment taken down. The review by Mr. Anonymous will stay up on Unvarnished until he or she decides to take it down and because of web archives will be on the internet basically forever.

 

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