Maryland Takes Lead in Banning Employers from Demanding FB Access

Posted on April 12, 2012 by

Maryland recently became the first state to ban employers from requiring prospective employees to let them access their social media accounts.  The law was passed in response to protests after the state demanded corrections officers’ social media passwords to search for gang affiliations.

Even in states where reviewing prospects’ Facebook accounts remains legal, employers may want to think twice before incorporating the practice into their hiring procedures.  Employers who require access to private pages risk losing qualified applicants who have nothing to hide but object to the intrusiveness.

There are also legal risks: for instance, a discrimination plaintiff needs to show that the employer knew he was a member of a protected class.  A potential employer who otherwise would not have known the job applicant’s religion or race is likely to inadvertently find out while scouring social media.  An employer who retains applicants’ or employees’ login information could also be subject to a lawsuit if the information is leaked or used by someone else in the office for improper purposes.   Continue reading →

Posted in Employment, Privacy | Tagged , , , , , , , | 1 Comment

Homeless Hotspots Create PR and Wage Controversies

Posted on March 21, 2012 by

Digital media opens up a world of possibilities for marketers but also can lead to PR nightmares when creative campaigns backfire by losing touch with real-world sensibilities.

The marketing agency BBH recently sparked an online debate by hiring homeless people to carry mobile Wi-Fi devices and wear t-shirts declaring “I’m [name], a 4G hotspot” and listing an access code.

The marketer compared the project – launched during the South by Southwest technology conference in Texas –to street newspapers sold by homeless vendors and said it inspired an “entrepreneurial spirit.”  While critics felt the project “symbolizes everything that’s awful about both South by Southwest and living in America in the 21st century” by turning “people [into] platforms” many of the homeless participants defended it in media interviews.

The New York Times reported that participants were paid $20 per day (as well as the donations they receive from Wi-Fi users) but BBH claims participants were guaranteed a minimum of $50 per day for six hours of work and that, based on the donations so far, the participants’ take will “significantly” exceed that amount.

It is nonetheless questionable whether BBH has complied with minimum wage obligations under the Fair Labor Standards Act.  Continue reading →

Posted in Advertising, Employment | Tagged , , , , , , , , | Leave a comment

Plug or Perish

Posted on March 14, 2012 by

The Internet continues to generate localized forums for businesses and professionals to interface with the public and each other.  For example, FVLD Founding Member Vance Liebman was recently profiled by LinkedLocalNetwork, as a “different kind of lawyer”.  Vance also can be viewed discussing recent legal developments on CEOIntroNet.com, a members-only network allowing CEOs to interact with each other online.  The network originated in Philadelphia, expanded into Chicago last year and has other cities planned.  You can watch Vance’s interview here.

Posted in FVLD | Tagged , , , , , , | Leave a comment

Courts Mull Identifying Anonymous Commenters

Posted on February 28, 2012 by

Two recent cases deal with the protection of website commenters’ identities, one in a traditional media context and the other dealing with pseudonymous Tweets sought by a grand jury.

In re: Indiana Newspapers Inc. involved a comment to a story titled “Junior Achievement faces questions, audit” regarding financial troubles facing a culinary school construction project. Continue reading →

Posted in Anonymity, Defamation, Discovery, First Amendment | Tagged , , , , , , , , , , , , , | 1 Comment

Texas Court: Internet Not Just for Voodoo Anymore

Posted on February 20, 2012 by

A Texan appellate court affirmed a murder conviction in a 2007 freeway shootout after finding that postings to the defendant Ronnie Tienda Jr.’s MySpace page were properly admitted against him during the trial.   The case shows how far Texas judges have come since the Internet’s early days.  In the infamous 1999 case St. Clair v. Johnny’s Oyster & Shrimp, Inc. a federal judge in the Lone Star State referred to the internet as a source of “voodoo information” and held that

While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon in his Response to Defendant’s Motion. There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules . . .

Unfortunately for Tienda Jr., much has changed since Y2K.  Continue reading →

Posted in Discovery, Privacy | Tagged , , , , , , , | Leave a comment

Roommate.com Coda: Rabbis Need Not Share Kitchens With Hog Butchers

Posted on February 7, 2012 by

A federal appellate court held that the roommate matching site Roommate.com is not governed by the Fair Housing Act, disposing of discrimination claims by fair housing advocacy organizations.

The suit alleged that the websites violate the Act by requiring users to create profiles with, among other things, their gender, sexual orientation, and familial status and to provide the preferred characteristics of the roommate they are seeking.  Users could then perform a search that excluded groups that they do not view as desirable roommates.

The website originally sought to have the suit thrown out under the Communications Decency Act, which immunizes it for third party content posted to the site.  In a decision that reverberated throughout the web, at least among lawyers, the Court of Appeals for the Ninth Circuit held that, since the site required users to input the information and then created search mechanisms based on that information, the site itself could be considered a “content provider” and could be liable for its own content.  The ramifications of that decision were still playing out when the case returned to the court on the question of whether the FHA even applied to roommates. Continue reading →

Posted in Advertising, First Amendment, Privacy, Section 230 | Tagged , , , , , , | 1 Comment

Judge: No Privilege for Tech Blogger

Posted on February 1, 2012 by

A Chicago judge ruled that a technology blogger was not protected by the Illinois reporters’ privilege law and must disclose the anonymous source of allegedly confidential photos he published of an unreleased smartphone.

Judge Panter held that the website, TechnoBuffalo, does not qualify as a “news medium” entitled to protection under the Act.  The judge recognized that the statute defines “news medium” to include “any periodical issued at regular intervals whether in print or electronic format and having a general circulation.”  He acknowledged that TechnoBuffalo may have over a million readers.  Nonetheless, he found that:

The article at issue is an editorial posting that is part of a technology blog on TechnoBuffalo’s site. It does not “encourage a well-informed citizenry” to protect the source and type of confidential information disseminated by TechnoBuffalo in its blog posting about JBC’s client’s not-yet-released smartphone, and TechnoBuffalo’s anonymous “tipster” is hardly an example of a “source” of investigative journalism that requires the protection of the Act.

Shield statutes, however, typically are interpreted broadly and not limited to “investigative journalism” or the kinds of periodicals that a judge determines “encourage a well-informed citizenry”.  Continue reading →

Posted in Anonymity, Blogging, First Amendment, Intellectual Property, Privacy | Tagged , , , , , , , , | 1 Comment

Alderman Seeks To Preserve Social Media For G-8 Protesters

Posted on January 31, 2012 by

The Chicago Sun-Times reports that a Chicago Alderman plans to introduce legislation banning the Chicago Police Department from shutting down social media or cell phone access during the NATO and G-8 summits which will be held at McCormick Place in Chicago in May.

Although the department denies that it has even considered such measures, the alderman, Ricardo Munoz, cited the Bay Area Rapid Transit’s (BART) blocking of cell services during a protest last year.  Continue reading →

Posted in First Amendment | Tagged , , , , , , , | Leave a comment

Plug or Perish

Posted on January 27, 2012 by

FVLD member Vance L. Liebman participated in a roundtable on small business owners’ reactions to the President’s State of the Union address, hosted by Walter Jacobsen and broadcast on CBS News on January 25, 2012.  Liebman observed that political parties are no longer as motivated to reach deals because they can raise more funds from their base by citing their opposition to the other party’s proposals.  You can watch the segment here.

Posted in FVLD | Tagged , , , , | Leave a comment

Wine Expert Sued for Yelp Retaliation

Posted on January 16, 2012 by

Cecelia Groark took to Yelp to complain that Bottled Grape owner Krunch Kretschmar had given away her seat to a wine tasting, which she had purchased through Groupon.  Kretschmar responded on Yelp claiming that he had twice emailed Groark and gave her seat away only after she failed to reply.

But, according to Groark’s lawsuit, Kretschmar did not stop there.  Rather than attributing the problem to miscommunication and letting it go, he allegedly set up a blog in Groark’s name which covered at least three of the four categories of defamation per se by claiming that she had embezzled from her employer to support a drug addiction, and, after jailhouse rehab didn’t work, turned to “the oldest profession” to support her habit.  Continue reading →

Posted in Advertising, Anonymity, Defamation, Privacy, Section 230 | Tagged , , , , , , , | 1 Comment

Cheerleader’s Suit Against Gossip Site Survives

Posted on January 13, 2012 by

A school teacher with a side-gig as an NFL cheerleader won a rare victory by surviving a website’s immunity defense in a case regarding comments about her posted to the site by third parties.  A poster to “thedirty.com” wrote that the plaintiff “slept with every . . . [Cincinnati] Bengal Football player”.  The site denied her request to remove the post and another poster wrote, among other things, that the plaintiff’s ex cheated on her and contracted STDs “so im [sic] sure [she] has” the diseases.   The website’s operator, who testified that he believed “you can say whatever you want on the internet,” may have pushed one button too many by disparaging the chastity of a Kentucky teacher/NFL cheerleader.

The Communications Decency Act immunizes websites from liability for third party content so long as they are not an “information content provider” which is “responsible, in whole or in part, for the creation or development of” unlawful content.  Most courts have held that even sites that solicit or encourage unlawful content are not “information content provides” as long as they don’t create the offending content themselves.

The court in Jones v. Dirty World Entertainment, however, relied on language from a 2009 federal appellate case that a site is “responsible” when it “in some way specifically encourages the development of what is offensive about the content.”  Continue reading →

Posted in Defamation, Privacy, Section 230 | Tagged , , , , , , , , | 1 Comment

AP Launches Online News Licensing Venture

Posted on January 12, 2012 by

The Associated Press and other news organizations are launching a new ASCAP-like venture called NewsRight intended to give aggregators a one-stop-shop to acquire licenses to the members’ news content, according to a report by Poynter.

Though NewsRight may be convenient for aggregators looking to pay for licenses, the obvious problem is that many aggregators have no interest in doing so.  While those who republish entire news stories may be liable for copyright violations, many only publish links, in some cases accompanied by a short paraphrase or excerpt from the story.  Such practices often may qualify as “fair use” or “de minimis” (too insignificant to be legally actionable) use of copyrighted content.

The Poynter story optimistically suggests that “There are any number of institutions and businesses willing to avoid legal hassles or an appearance of unethical practice by paying when asked.”  Possibly, but it seems that most aggregators believe they are doing the traditional media a favor by steering eyeballs to those sites.  After years of news media treating their content as “free stuff” on the web, the paradigm may be resistant to change, whether through moral suasion, litigation or resort to various types of paywalls.

NewsRight also will reportedly offer analytic data to news outlets regarding the aggregated stories.

Posted in Intellectual Property | Tagged , , , , , | Leave a comment

SEC: “Like” Button Could Violate Securities Rules

Posted on January 5, 2012 by

The SEC starts off 2012 by cracking down on investment advisers using social media to sell phony securities or commit other frauds.

First, the agency instituted proceedings against a Lyons, Illinois man accused of offering $500 billion in fictitious securities through his LinkedIn account and other sites.  The offers reportedly generated interest although no one ultimately attempted to buy the non-existent securities.  Anthony Fields also is accused of making false representations about his two firms through their websites and public filings.

The SEC also has issued two Alerts regarding social media, one aimed at investment advisers required to comply with the Advisers Act and the other for investors.   Continue reading →

Posted in Advertising, Employment, Fraud | Tagged , , , , , , , , , , | 2 Comments

Court Dismisses Rabbi’s Case Against Kimmel

Posted on December 27, 2011 by

The “Flying Rabbi’s” menorah may lose some of its shine now that a judge has dismissed his misappropriation complaint against late night talk show host Jimmy Kimmel and ABC.

Daniel Sondik’s complaint alleged that Kimmel spliced YouTube clips of Sondik praying in Hebrew on a Brooklyn street with footage of himself to spoof Lebron James’s alleged hiring of Israeli Rabbi Yishayahu Yosef Pinto for business consultations.   Sondik has been described in the New York Times as “an exuberant Orthodox Jew who sings as he walks” and YouTube hosts numerous videos calling him the “Flying Rabbi.”

The court first determined that the case should be governed by the laws of New York rather than California.  New York law does not allow recovery for commercial misappropriation  while covering “newsworthy events or matters of public interest”.  This includes comedic performances. Continue reading →

Posted in Defamation, First Amendment, Intellectual Property | Tagged , , , , , , , , | Leave a comment

Should Family Facebook Connections Disqualify Judge?

Posted on December 16, 2011 by

A judge denied a daycare operator’s request for a new trial in her child abuse case despite allegations that the trial judge’s kids were Facebook friends with the alleged victim’s relatives.

The trial judge, Daniel Rozak, had replied in an affidavit that he has no involvement in his adult children’s Facebook-friending decisions, but defendant Kelly Klein’s attorney said the judge’s children began de-friending the victim’s relatives the day after the judge filed his affidavit.

Judge Richard Schoenstedt rejected Klein’s request and noted that, otherwise, all judges would need to monitor their families’ Facebook connections each time a new case came in. Continue reading →

Posted in Uncategorized | Tagged , , , , , , , , , | Leave a comment