Social media can be risky business. Whether an organization embraces or ignores social media, it or its employees probably already have a presence on a social network. That simple reality can be costly for an organization without proper measures in place to deal with the risks of social media misconduct. Readers of this blog are familiar with cases where business saw their reputations marred by employees who post embarrassing photos online about work mishaps or found themselves in legal trouble for firing an employee who vented on Facebook about a co-worker.
To help organizations manage the risks of social media activity, I’m proud to introduce SM Safety, a new line of services offered by my law firm. The approach of SM Safety can be summarized in three words, each corresponding to a level of service that meets a particular need: checkup, plan, and audit.
A SM Safety Checkup is a low-cost way to ensure that an existing social media policy is legally compliant and effective.
A SM Safety Plan is for organizations who need assistance with preparing a new social media policy or enhancing an existing policy.
A SM Safety Audit is a comprehensive review of an organization’s overall presence in the social media space to identify exposure to legal risks due to social media use.
Each SM Safety service is offered for a flat fee. To learn more about SM Safety or to obtain a quote, visit the SM Safety Services page on this site.
FC 250 Grand Marshal, Paula Deen (Photo credit: Bristol Motor Speedway & Dragway)
Lisa Jackson’s discrimination and sexual harassment lawsuit against Paula Deen settled last Friday, but not before Deen tried to remove Jackson’s attorney, for publicly disparaging her on social media. A court order filed hours before the settlement reveals that in March, Deen’s lawyers filed a motion for sanctions against Matthew C. Billips, the lawyer who represented Jackson (read the motion here). The motion alleges that Billips made offensive remarks about Deen on Twitter. Some of the more eyebrow-raising tweets included:
“I’ve been doing Paula Deen, in a strongly metaphorical sense”
“I plan on undressing [Deen]” (in reference to an upcoming deposition of Deen)
“Now talk about fun, suing Paula Deen is a hoot!”
In another Twitter conversation about Deen’s diabetes, Billips allegedly referred to Deen’s food with the hashtag #buttercoatedbuttercookies.
Based on Billips’ tweets and his discovery practices, Deen’s lawyers asked the court to disqualify him from continuing to represent Jackson. As the August 23 court order shows, the judge declined to disqualify Billips, but it was open to imposing some form of sanctions against him. The judge has indicated that the settlement will not stop the court from sanctioning Billips despite Deen’s lawyers attempt to withdraw their sanctions motion in light of the settlement. Billips has 20 days as of Friday to show why he should not be sanctioned.
This cautionary tale that teaches litigants (and their attorneys) not to discuss pending cases on social media. Posts on social networks like Facebook and Twitter can be publicly accessible, are potentially discoverable, and can be the basis for a defamation lawsuit. There’s little to be gained and much to lose by talking about a lawsuit online. For that reason, lawyers now commonly instruct their clients in their retainer agreements not to discuss the case with anyone on social media, even family and friends. Lawyers would do well to follow their own advice.
Rock legend gets to continue lawsuit against HP for selling penis-measuring app named after him – Evans v. Hewlett-Packard Co., 2013 WL 4426359 (N.D. Cal. Aug. 15, 2013)
(Photo credit: Wikipedia)
Want to test the urban myth that a man’s shoe size is a good measure of his you-know-what? Well, there’s an app for that. Or there was. And the app store that sold it is being sued by the app’s namesake, who isn’t thrilled that his name was associated with a digital ruler for male nethers.
“The Chubby Checker” was an app for estimating the size of a man’s genitals based on his shoe size. Hewlett-Packard’s subsidiary, Palm, Inc., offered the app for sale on its app store. The name of the app is a pun based on “Chubby Checker,” the stage name of rock-and-roll legend Ernest Evans. Evans and the companies who owned registered marks associated with the name “Chubby Checker” sued HP and Palm for trademark infringement and dilution, federal unfair competition, and various state law claims.
The defendants tried unsuccessfully to dismiss the trademark infringement claim. The complaint sufficiently alleged a claim of contributory infringement against the defendants, the court found. Plaintiffs alleged that the “Chubby Checker” name and mark was internationally famous. The defendants also allegedly maintained “primary control” over the use of the mark by setting up a detailed application and approval process for the app. Thus, the court ruled that it was plausible to infer that the defendants knew or could have reasonably concluded that the plaintiffs would not have consented to license the “Chubby Checker” mark for use with the app.
The defendants fared better in their attempt to dismiss the state law claims. The defendants invoked Section 230 of the Communications Decency Act, which immunizes internet service providers from tort liability based on content published by third parties. The plaintiffs did not allege that the defendants created the app. Instead, third parties created the app. Since the defendants were internet service providers rather than content providers, Section 230 required dismissal of the state law claims.
LegalTXTS Lesson: This ruling could be a major setback for app store operators. Essentially, it means an app store could be sued for contributory trademark infringement whenever one of the apps it sells is the subject of trademark litigation. That might make some sense if the app store set up an approval process that includes review of the intellectual property rights used by apps (e.g., see how the app Pic Bubbler fared in the review process for the Apple App Store), but not if such review is missing from the app approval process (Google Play, for example, employs a minimal review process). And you can bet the app store operator is a prime target for litigation if it’s a deep pocket. Like in this case, who would you rather sue—HP, or the creator of The Chubby Checker, which apparently sold a mere 88 copies at 99 cents each?
Court dismisses lawsuit against Match.com arising out of attack of one member by another – Beckman v. Match.com, 2013 WL 2355512 (D. Nev. May 29, 2013)
A court threw out a Match.com subscriber’s lawsuit alleging that the online dating service was responsible for the injuries she sustained from being attacked by a man whom she met through the service. Mary Kay Beckman met Wade Mitchell Ridley through Match.com and dated him briefly before ending the relationship. After the break-up, Ridley sent Beckman threatening and harassing text messages. Several months later, Ridley ambushed Beckman at her residence and repeatedly stabbed and kicked her.
Beckman filed a $10 million lawsuit against Match.com for (1) negligent misrepresentation; (2) deceptive trade practices; (3) negligent failure to warn; (4) negligence; and (5) negligent infliction of emotional distress. The federal district court of Nevada granted Match.com’s motion to dismiss the entire lawsuit.
The court held that Section 230 of the Communications Decency Act immunized Match.com from the negligence and negligent infliction of emotional distress claims. The court easily found that Match.com was an “interactive services provider” and not an “information content provider.” The court also found that the theory behind the claims was exactly the reason that CDA immunity exists—to protect publishers against liability based on publication of online content generated by third parties. Beckman alleged that Match.com was negligent in posting Ridley’s profile, which led to her to date Ridley and later be attacked by him. Because the information in the profile originated from Ridley, CDA immunity protected Match.com from liability based on publication of the profile.
The court took a bit more effort to apply the CDA to Beckman’s claims for negligent failure to warn and negligent representation. Although those claims tried to focus on Match.com’s alleged failure to warn Beckman instead of Ridley’s profile, the court concluded that the wrongful conduct alleged in the claims was still traceable to the publication of the profile. There was nothing for Match.com to negligently misrepresent or negligently fail to warn about other than what a Match.com user might find on another user’s profile. Since the negligent failure and negligent misrepresentation claims were just another way of holding Match.com liable for information originating with a third party, the CDA barred those claims.
The court also found reasons to dismiss the negligence-based claims other than the CDA. The negligence claim failed because no special relationship exists between a provider of online dating services and its subscribers, and in the absence of a special relationship, Match.com owed no duty to its subscriber. The emotional distress claim could not survive because, according to the court, posting an online dating profile did not rise to the level of “extreme and outrageous” conduct required to recover for emotional distress. Finally, Beckman did not satisfy a heightened pleading standard that applied to the negligent misrepresentation claim.
The deceptive trade practices claim, which Beckman brought under the Federal Trade Commission Act, was dismissed because there is no private right of action to enforce the Act. Beckman argued that the claim alleged that Match.com was negligence per se for violating the Act, but the court found that she did not plead such a claim.
Federal court has no jurisdiction over PeopleBrowsr’s lawsuit against Twitter for shutoff of the “Firehose” – PeopleBrowsr, Inc. v. Twitter, Inc., 2013 WL 843032 (N.D. Cal. Mar. 6, 2013)
Big Data equal big assets, and in 2012, Twitter made significant moves toward putting a premium on its assets by restricting access to its data to third-party services (count Instagram and Tumblr among those affected). Social analytics provider PeopleBrowsr was one of the services affected by the changes in Twitter’s data access policies. In 2012, Twitter shut off PeopleBrowsr’s access to the “Firehose,” the nickname for the full stream of every tweet posted on Twitter. PeopleBrowsr mines data from the Firehose to derive insights about consumer reactions and identify social influencers for its clients. PeopleBrowsr fought back against the impending Firehose shutoff by suing Twitter in California state court and successfully obtaining a temporary restraining order to stop the shutoff.
The next chapter in the lawsuit unfolded in federal court. Twitter removed the lawsuit to federal court and then filed a motion to dismiss the action. But the lawsuit’s stay in federal court will be brief because federal district judge Edward Chen recently issued a decision sending the lawsuit back to state court. Twitter invoked federal jurisdiction on the ground that PeopleBrowsr’s claim for violation of California’s Unfair Competition Law (UCL) is based in part on the Sherman Act, over which federal courts have exclusive jurisdiction. Not so fast, said Judge Chen. At best, the Sherman Act might give Twitter a defense to the UCL claim. Unlike an affirmative claim for relief, a defense under federal law is not enough to support federal jurisdiction. The alleged violations of the UCL were based entirely on California law. Since federal courts have no jurisdiction over the lawsuit, the fight over the Firehose will continue in California courts. The court awarded attorneys’ fees to Peoplebrowsr for opposing the removal of the case to federal court.