Watch Your Social Media Assets

Posted by on Sep 27, 2012 in Employment and Labor, Social Media

Employers should clarify ownership and control over social media accounts by which their employees promote the organizationInsynq v. Mann, No. 3:12-cv-05464 RBL, 2012 WL 3763550 (W.D. Wash. Aug. 29, 2012)

Earlier this year, the Phonedog v. Kravitz case attracted buzz on the issue of who owns a social media account that’s started by an employee, purportedly to promote his employer’s organization.  In PhoneDog v. Kravitz, the former editor-in-chief (Kravitz) of an online news service refused to relinquish the Twitter account on which he posted content promoting the company.   Kravitz argued that he owned the Twitter account because he personally opened the account and amassed its sizeable following of approximately 17,000 followers.  PhoneDog sued Kravitz for ownership of the Twitter account.

The issue hasn’t gone away.  The most recent case is Insynq v. Mann.  In that case, the employee (Mann) of an application service provider (Insynq) registered three domain names during her employment and began writing three blogs associated with each domain name.  After Insynq terminated Mann, it claimed ownership of the blogs.  Mann refused to give her former employer the credentials to the blog.  In the lawsuit that followed, Insynq sued Mann for breach of her non-compete agreement, misappropriation of trade secrets, and unfair competition.

Cases like PhoneDog and Insynq are a good reminder that if an organization has its employees managing its social media activity, it needs to clarify who owns the social media account used by the employee and the contents of the account.  Otherwise, an organization might find itself fighting for control over a social media account after the departure of the employee responsible for managing the account.  Not having such control could lead to alienation of a painstakingly developed community of customers or fans, or worse, the inability to exercise editorial discretion over content about the organization being pushed out to the community.

To avoid messy disputes over ownership and control over social media assets, organizations should consider the following guidelines when developing social media policies:

  • Specify that only authorized employees may publish social media content on behalf of the organization, and that employees must use the organization’s official social media accounts when publishing such content.
  • Specify who owns the login credentials to the social media accounts used to promote the organization, as well as the content published on such accounts.
  • Require an employee who is responsible for managing the organization’s social media activity to disclose to his or her manager the login credentials for the accounts used for that purpose.  The employee should also be required to disclose any changes to the login credentials.
  • Prohibit employees from using the organization’s official social media accounts for their personal use.
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The Problem of Flamers Without a Face

Posted by on Sep 27, 2012 in Discovery, First Amendment

Court quashes subpoena to discover identity of anonymous bloggers after ruling that the bloggers’ statements are not defamatorySomerset Development, LLC v. “Cleaner Lakewood”, 2012 WL 4370271 (N.J. Super. Ct. App. Div. Sept. 26, 2012)

This case shows how difficult it is to sue for statements made anonymously on the Internet.  The plaintiff (Zucker) is the developer of a real estate project in the New Jersey township of Lakewood.  Zucker learned through discussions with members of the Lakewood community that certain individuals anonymously posted statements on a blog hosted by Google’s Blogspot service.  Zucker sued the blog operator and the anonymous individuals who posted on the blog.  Zucker subpoenaed Google for information that would lead to the identification of the anonymous individuals.

The trial court quashed the subpoena, finding that the anonymous statements were not defamatory.  The Appellate Division upheld the quash order.  The court noted that Section 230 of the Communication Decency Act provides immunity to website operators who republish comments of others or block certain offensive materials.  As for the anonymous posters, the court noted that there is a general, but not absolute, right under the First Amendment to speak anonymously.  To balance the First Amendment right to speak anonymously against an individual’s right to protect its proprietary interests and reputation, the Appellate Division had set up a four-part test in Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001):

1.  The plaintiff must “undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application.”  Zucker satisfied this requirement by posting the subpoena on the blog under each offending post.

2.  The plaintiff must “identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.”  Zucker satisfied this requirement by highlighting the specific comments he alleged were defamatory in connection with posting the subpoena on the blog.

3.  The court must determine whether the plaintiff has established a prima facie cause of action against the anonymous defendants.   This is where Zucker’s effort to discover the identity of the anonymous poster gets stop cold.  One of the elements of a defamation claim is that the statements at issue must have “defamatory meaning.”  The anonymous posters had made statements like Zucker “short changed the taxpayers with millions”, “paved the way for the senior vote by stealing 6 million in tax dollars”, and “is behind all the anti hh propaganda going around[.]”  Other commenters called him a “rip off artist” and “under the table crook.”  As much as such comments were strongly-worded, the court ruled that expressions of opinion on matters of public concern and “rhetorical hyperbole” are not actionable.

4.  The plaintiff should file a request for discovery with the court, along with a statement justifying the specific discovery requested and identifying a limited number of persons or entities who are likely to produce identifying information about the anonymous defendant.  The court did not get to this prong of the test because Zucker could not meet the third prong.

The challenge presented by the Dendrite test, or at least in the way it was applied here, is that it pre-judges the merits of a case even before the plaintiff has a chance to serve the complaint on the anonymous defendant.  Take the court’s ruling on defamatory meaning, for example.  Yes, the question of whether a statement is capable of defamatory meaning is a matter of law for the court to decide.  But courts usually rule on the issue in deciding a motion to dismiss or motion for summary judgment.  Here, the court ruled that the plaintiff is a public figure (thus triggering the heavy “actual malice” requirement) and that the statements in question were not defamatory as a matter of law before the complaint was even served.  Under the Dendrite test, the plaintiff would have to successfully litigate those issues just to get the information they need to serve the complaint.  That seems a tad bit backwards.

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UPDATE: A Matter of Moderation

Posted by on Sep 6, 2012 in First Amendment, Social Media

It’s time for updates to my post on the Hawaii case concerning censorship of user comments on the Honolulu Police Department’s Facebook fan page.  First, I’ve obtained a full copy of the complaint including the exhibits, which fleshes out the facts of the case.  According to the first two exhibits to the complaint, one of the plaintiffs (Christopher Baker) posted comments alleging that the HPD of violating the constitution and due process and criticizing the HPD and other government agencies for corruption and mismanagement.  In a separate comment thread, the HPD told another user: “comments depicting unlawful activity is a violation of the posting guidelines.  Your comment has been deleted.”  Baker responded with comments criticizing the HPD for “internet censorship” and exercising “internet nazi powers.”  An exchange between the HPD and Baker followed, and at some point the HPD told Baker: “@Christopher, you’ve had a history of using defamatory terms in your comments.  The posting guidelines are clear.  Dissenting opinions are appropriate but the use of defamatory comments such as ‘internet nazi powers’ are not.  Your comments have been deleted.”  Baker’s co-plaintiff (Derek Scammon) responded to the HPD’s deletion comment with his own: “So I take it that HPD doesn’t care much about allowing freedom of speech?  All the one-sided comments referring to posters who have been deleted seem a little forboding.  Does asking about deleted posts violate the posting guidelines?  I’d hate to get my post deleted for talking about posts that got deleted.”  Scammon separately engaged the HPD in a conversation on the HPD Page regarding the need for Honolulu residents to be allowed to carry concealed weapons.

Second, I’ve gotten copies of the motions for a temporary restraining order and preliminary injunction that were filed at the same time as the complaint.   The TRO motion was deemed moot at an August 22 status conference (the reason for this is unknown).  It is apparent, however, that the HPD is no longer banning certain users from commenting on the HPD Page.  Yesterday, the court held a status conference in which it deemed the preliminary injunction motion moot based on the HPD’s reversal of position and the agreement of the parties (the details of the agreement are not clear).  Another status conference is set for October 4.  We’ll follow the case and keep you posted.

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