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
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 Anonymous Comments, Bachmann, candidate, Dendrite, First Amendment, grand jury, In re Indiana Newspapers, newspapers, president, Reporter's Privilege, shield law, Subpoena, threat, Twitter
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
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
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 blogs, First Amendment, Johns-Byrne Company v. TechnoBuffalo LLC, Reporter's Privilege, shield law, Smartphones, TechnoBuffalo, Trade Secrets, Wired
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.
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 Bottled Grape, Facebook, filtered reviews, Groark, Groupon, Krunch Kretschmar, Section 230, Yelp
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 Accusearch, Bengals, Communications Decency Act, Griordano v. Romeo, Jones v. Dirty World Entertainment, Section 230, Shiamili, thedirty.com, Yelp
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.
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