CDA Immunity Does Not Make a Case “Federal”

Posted by on Oct 10, 2012 in Defamation

Reliance on Communications Decency Act immunity does not convert a lawsuit into a federal caseSulla v. Horowitz, Civ. No. 12-00449 (D. Haw. Oct. 4, 2012)

“You wanna make a federal case out of it?”  Well, maybe you do, but as the federal district court of Hawaii recently explained, citing a federal statute and arguing that the Internet is involved won’t cut it.

The plaintiff (Sulla) was counsel to a party that foreclosed on property owned by the  nonprofit corporation that one of the defendants (Horowitz) owned.  Sulla alleged that Horowitz and his co-defendant began publishing defamatory statements about Sulla over the Internet, including through a website with a domain name bearing his name.  Sulla sued Horowitz for defamation in state court, but the defendants removed the case to federal court, apparently based on diversity jurisdiction (i.e., all the plaintiffs are citizens of a different state than all the defendants).  Noting that all the parties might be citizens of Hawaii, the federal court issued an order to show cause why the action should not be sent back to state court.  Defendants’ briefing on the jurisdictional issue did not allay the court’s concerns.

The defendants argued that the court actually had federal question jurisdiction.  The basis for their argument?   Because the allegedly defamatory statements were published on the Internet, defendants argued, the court has exclusive federal jurisdiction over the case based on the Communications Decency Act (CDA).  The court disagreed, giving a quick lesson on how the CDA and federal question jurisdiction work.

First, “Section 230 [of the CDA] does not shield persons from liability for defamatory statements that they make via the internet.”  Second, whether CDA immunity applies is irrelevant to the analysis of federal jurisdiction.  The court cited the basic rule that federal question jurisdiction cannot arise out of a defense (as compared to a claim) based in federal law.  CDA immunity is a defense, so the possibility that the CDA might protect the defendants from liability for defamation did not convert the lawsuit into a “federal case.”

The court also found the defendants’ other arguments for federal jurisdiction unpersuasive and sent the case back to state court.

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Facebook Seeks Dismissal of Internet Tracking Lawsuit Alleging Privacy Violations

Posted by on Oct 8, 2012 in Privacy, Social Media

Facebook is being sued in a $15 billion lawsuit alleging that the popular social media company secretly tracked the Internet activity of its users after they log off (the First Amended Complaint is available here).  The case is a consolidation of nearly two dozen lawsuits filed in ten states, including one here in Hawaii (Quinn v. Facebook, Inc., 1:11-cv-00623).  The lawsuit alleges violations of the U.S. Wiretap Act, the Stored Communications Act, and Computer Fraud and Abuse Act.

In July, Facebook filed a motion to dismiss the lawsuit on the ground that the plaintiffs failed to allege sufficient injury.  At the hearing on the motion on October 5, Facebook’s attorneys argued that the plaintiffs haven’t identified the websites they visited, the kind of information that Facebook collected, or whether Facebook disclosed any information to anyone else.  The lawyer representing the subscribers countered that generalized allegations of harm are sufficient at this stage of the case, and that Facebook’s alleged practice of tracking their users’ Internet activity was not disclosed as part of Facebook’s privacy policy.   The court’s ruling on the motion to dismiss is pending.

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FTC Issues Guidance For Mobile App Developers

Posted by on Oct 4, 2012 in Advertising and Marketing, Data Security, Privacy

On September 5, the Federal Trade Commission published its first guide specifically with mobile app developers in mind.  Entitled “Marketing Your Mobile App: Get It Right From the Start,” the guide is not legally binding, but it does set out guidelines to help mobile app developers comply with truth-in-advertising and privacy laws.  In particular, the guide lays out seven principles for complying with federal data privacy requirements under statutes like the Graham-Leach-Bileley Act, the Fair Credit Reporting Act, the Child Online Privacy Protection Act, and the Federal Trade Commission Act.  Click here for the press release and a link to the guide.

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NLRB Weighs in on BMW Dealership Case; Strikes Down “Courtesy” Work Rule

Posted by on Oct 2, 2012 in Employment and Labor, Social Media

In two weeks, the NLRB has issued just as many decisions agreeing with the positions of the NLRB’s Office of General Counsel (OGC) on employee social media use, as stated in the OGC’s well-known guidance memos.  On September 18, the NLRB invalidated Costco’s policy prohibiting employees from making statements on social media that could damage the company or other employees’ reputations.  Yesterday, the NLRB publicly released a decision weighing in on the BMW dealership case that was discussed in the OGC’s August 18, 2011 memo. (The decision and briefing in the case are available here).

Here’s a quick review of the case for those not familiar with it.  A salesperson at a BMW dealership posted photos on Facebook showing a car that a test driver accidentally drove into a pond in front of a Land Rover dealership across the street (who shares a common owner with the BMW dealership).  The employee  included mocking comments about the incident in the post.  That same day, the employee posted photos on Facebook depicting the low-quality food and beverages that the BMW dealership provided at a sales event to promote a new car model.  Again, the employee accompanied the photos with sarcastic remarks.  The employee was discharged for the Facebook posts regarding the Land Rover incident.  The employee claimed that the primary reason for his discharge was the Facebook posts regarding the sales event, which he argued was protected activity.

The NLRB agreed with the findings of the Administrative Law Judge (ALJ) that the discharge was based on the Land Rover posts, which were not concerted or protected activity because they were in no way connected to the terms or conditions of employment.  The ALJ’s decision also stated that the sales event posts could constitute concerted or protected activity because they could be construed as legitimate concerns about compensation.  Salespeople at the dealership were paid partly by commission, which are tied to sales.  Sales could be negatively impacted by damage to the reputation of the dealership due to the low-quality sales event.  The NLRB found it unnecessary to pass on the sales event posts, however, because the discharge was based on the Land Rover posts.

The NLRB also struck down a rule in the dealership’s employee handbook stating:

Courtesy: Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite and friendly to our customers, vendors 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.

The NLRB found the rule overbroad, as it could have the effect of prohibiting employees from making protected statements to other employees about their working conditions.  However, a dissenting member of the NLRB’s three-member panel found that the courtesy rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

LegalTXTS Lesson:  Here are three quick takeaways from the decision.

  1. Work rules regulating “offensive” social media activity should be vetted for any connection to concerted or protected activity, such as employee discussions about their compensation or the terms and conditions of their employment.
  2. “Courtesy” work rules similar to the one the NLRB struck down should be revisited to ensure they are specific enough to exclude protected activity.
  3. The positions taken in the OGC guidance memos are gaining credibility as the NLRB increasingly adopts those positions in published decisions.
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