Just as the advent of social media has changed the face of communication, recent lawsuits are defining the new field of social media law. Here’s a few trends to keep an eye on.
Fraley v. Facebook Inc.
Fraley v. Facebook Inc. was filed earlier this year, over the “Right of Publicity.” This is the legal right of an individual to accept or deny commercial use of their likeness and information.
The potential violation in question specifically relates to Facebook’s infamous “like” button. When a Facebook member “likes” a business page, that information is disseminated out among their friends’ news feeds.
Facebook, however, has taken things one step further. The sponsored ads which appear on a user’s Facebook page now list the profile pictures of any and all friends who have “liked” a company right under the ad.
The Plaintiffs feel that Facebook inappropriately turned their “likes” into commercial endorsement, thus breaching their Right of Publicity. Plaintiffs also claim that, since their likenesses were used, they are entitled to compensation.
Facebook’s dismissal request was denied in December 2011 by a federal judge. Previous cases similar to this one have been rejected by other courts, but this one looks like it will play out to the bitter end. Until now, specifics on what determines Right of Publicity varied from state to state, but this case verdict will likely establish universality going forward.
PhoneDog, LLC v. Kravitz
Noah Kravitz, a former employee of the review site PhoneDog, is being sued by his ex-employers for custody of his Twitter followers.
As part of his job description, Kravitz began a Twitter feed under the handle @Phonedog_Noah. Over the next few years, he gained around 17,000 followers. In 2010, Kravitz parted amicably with the company, and took his Twitter handle (changing it to @NoahKravitz) and his followers with him.
Eight months later, in July 2011, PhoneDog filed a suit seeking $340,000 total in damages: $2.50 per month, per follower. PhoneDog’s stance is that they invested substantial time and resources into growing that customer list of Twitter followers, and they consider it the confidential property of the company, and not Mr. Kravitz.
Kravitz states that PhoneDog told him to keep the Twitter account (as long as he continued posting occasionally), and that the original Twitter account was linked to his personal email address and used for personal tweets as well as professional ones.
This suit may ultimately define where exactly the boundaries separating personal, commercial, and intellectual property fall.
National Labor Relations Board
Historically, the focus of the National Labor Relations Board (NLRB) has focused on union companies. However, social media falls into the “concerted activity” provision of the National Labor Relations Act, which is not limited to protecting only unionized businesses.
This provision defines activities which are “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself” or bring “group complaints to the attention of management” as “concerted” and thus protected under the Act.
As a result, the NLRB has taken dozens of employers to court this year for social-media-related firings. Previously, employers often terminated employees who posted unfavorable statements about their employers or supervisors to the public Internet through social media. However, these posts are now established as protected by the NLRA, and are considered legitimate means of airing grievances over workplace conditions.
While many of these cases have been settled, expect more of them in the upcoming months as the NLRB continues setting new protection precedents for employees’ freedom of speech. And as the cases proceed, expect social media eDiscovery to play an increased role moving forward.