From pli’s Course Handbook Communications Law in the Digital Age 2009

Canada Privacy Commissioner Jennifer Stoddart released the results of her office’s 13-month investigation on July 16, 2009. Stoddart gave Facebook until Aug. 24, 2009, to bring its policies into compliance. If it failed to do so, Stoddart would consider pursuing a court order that would require Facebook to change its business practices.²⁶⁸ Following the release of the report, Chris Kelly, Facebook’s chief privacy officer, said the company would continue its conversation with Canada as part of its ongoing effort to modify its privacy controls. However, Kelly said, “We have every confidence that there would not be a finding in Canadian law if there were to go to a court, but we’re very comfortable with where things are in our discussion.”²⁶⁹

It is a foregone conclusion that references to Facebook posts or “tweets” will continue to appear in news reports. Use of the sites is too pervasive to ignore and their popularity shows no sign of slowing down. Journalists, media organizations and academic scholars must now consider the proper parameters that should govern reporters’ professional and personal use of what many view as an indispensable reporting tool.

Journalists, however, must be wary of potential pitfalls, such as quoting an online post that turns out to be the work of an imposter. Also, those who use Facebook and comment on news events or offer personal political views run the risk of jeopardizing their objectivity by being perceived as biased. J.D. Lasica, founder and editorial director of Socialmedia.biz and a former editor at the Sacramento Bee, believes this view of perceiving of journalists as “blank slates” is an outdated notion and that by participating on Facebook, reporters can help to humanize themselves and lift the veil of secrecy that surrounds the newsgathering process for much of the public.²⁷²

In the United Kingdom, the government’s Department for Business Innovation & Skills compiled a 20-page report in July 2009 that urged department employees to tweet and suggested the practice be expanded to other areas of government.²⁷⁸ Advantages to tweeting, according to the report, include the opportunity to put a “human voice” to a government department and build relationships with certain audiences, including journalists and bloggers.²⁷⁹

The Web sites began showing up in the spring of 2009 and the Better Business Bureau had not received any consumer complaints as of July, according to Alison Southwick, a spokeswoman for the bureau. “Twitter is the cool thing, the bright, shiny object,” she said. “It’s unbelievable how widespread this is. And with so many people vulnerable and looking for jobs, a scheme like this is going to have people falling for it when they can least afford to.”²⁸²

Some free Web sites use blacklists to block links to hazardous pages when creating the abbreviated links that often appear in short messages on social networking sites. However, Pegoraro theorized that the steady stream of updated content on a site such as Twitter may prevent even the best-maintained blacklist from properly identifying all threats. Pegoraro predicts more viruses will begin to plague these sites and, in a slight twist to an old saying, he offers this advice: “If your mother says she loves you on Facebook, check it out.”

La Russa dropped the lawsuit on June 26, 2009, in a terse court filing that stated Twitter made no payment to La Russa in exchange for dropping the suit.²⁸⁸ The precise reason for the decision not to pursue the claims was not reported, but it is possible La Russa decided he would not win a legal challenge because Web sites are generally not liable for the postings of their users under the Communications Decency Act, 47 U.S.C. § 230.

The suit claims Bonnen “maliciously and wrongfully published the false and defamatory statement, thereby allowing the Tweet to be distributed throughout the world.” Horizon claims the post damaged its reputation and Bonnen is therefore automatically liable. Bonnen had a public Twitter profile at the time of the post, but only 20 registered followers. The lawsuit invited more attention to the post as “Horizon Realty” hit as high as No. 3 on Twitter’s list of trending topics after media outlets reported on the lawsuit.²⁹⁰ Horizon was seeking more than $50,000 in damages.

The case originated when a clinic employee noticed an acquaintance visit the clinic and out of curiosity decided to look at the patient’s medical file. The employee learned the patient, who is married, wanted to be tested for a sexually transmitted disease because she had a new sexual partner. The employee, who is related to the patient’s husband, revealed the information to friends and other relatives. A page on MySpace.com with the title “Rotten Candy” revealing the information from the patient’s file soon appeared online, prompting the suit.

The court focused on the method used to transmit the private information—a publicly accessible Web site—rather than the number of viewers to decide the publicity element had been satisfied. The court acknowledged the likelihood that only a few friends of the clinic employee saw the page, particularly because the page was only posted for between 24 and 48 hours before it was removed. However, the court found that the number of actual viewers is irrelevant, likening the MySpace page to a newspaper with a small circulation or a radio broadcast in the middle of the night that has a small audience. The court reasoned that the publicity element is triggered “when the communication is made to the public at large, not to a large number of the public.”²⁹¹

In the same case, the court also held that a Minnesota statute is complementary, not contradictory, to HIPAA because both laws discourage wrongfully disclosing information from a person’s health record. A HIPAA violation exposes a person to criminal penalties while Minn. Stat. § 144.335 (2008) exposes a person to compensatory damages in a civil action. The Hennepin County District Court dismissed claims under the state statute by reasoning that the state law is contrary to HIPAA and is therefore preempted by it. In reversing that decision, the appeals court noted it is possible to comply with both laws, and that the Minnesota statute creates “another disincentive to wrongfully disclose a patient’s health care record.”²⁹² It remains to be seen whether this ruling may have the unintended effect of causing health care professionals to err on the side of caution and be reluctant to release information not protected by HIPAA out of fear of being individually liable in a civil suit.

The American Civil Liberties Union filed a motion to dismiss the order on behalf of Langlois, who said in defense of her postings: “I do not believe the truth was coming out in Family Court. I was simply using the internet to publicize my brother’s plight.”²⁹⁵ A potential battle over Forte’s authority to issue the prior restraint on speech was averted when Forte dismissed the order after Martin voluntarily dismissed her petition.²⁹⁶

In Barnes v. Yahoo! Inc., 565 F.3d 560 (9th Cir. 2009), amended, 570 F.3d 1096 (9th Cir. 2009), the court allowed a plaintiff to move forward on her promissory estoppel claim against Yahoo after the company failed to follow through on its promise to remove a sexually explicit Web posting. Attorneys advise that the ruling serves as a reminder that despite the wide protections afforded by the Communications Decency Act, 47 U.S.C. § 230(c)(1), there is a risk involved with hosting third-party content on the Web.²⁹⁷

The case arose when the plaintiff, Cecelia Barnes, broke up with her boyfriend and he posted nude photographs of the two of them, without her consent, on a Yahoo Web site along with some sort of invitation to engage in sex. Barnes repeatedly asked Yahoo to take down the profile and the company said it “would take care of it.” However, the profile did not disappear until Barnes filed suit in Oregon state court.

The court determined that Barnes’ promissory estoppel claim did not depend on the status of Yahoo as a “publisher or speaker.” If it did, Yahoo would have been precluded from liability under the Communications Decency Act, which generally precludes courts from treating Internet service providers as publishers. The court found that Yahoo’s contract liability came not from its actions as a publisher, but “from Yahoo’s manifest intention to be legally obligated to do something, which happens to be removal of material from publication.”²⁹⁸ The court noted that a general monitoring policy, or even an attempt to help a specific person, would not be enough to expose an Internet service provider to contract liability.

“Search engines are responsible due to their activities as website-access facilitators,” the judge wrote. They are “enormous tools that help amplify the spread of information and have an equal ability to amplify harm.” BNA reported that Da Cunha’s attorney, Gustavo Tanus, who has handled 120 similar cases against the two companies, said that this was the first successful ruling in Argentina. Tanus said that the actress plans to appeal the ruling because the judge granted her moral, but not economic damages, and that she is “entitled to payment for the use of her photos.”³⁰²

Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles, told CNN ahead of Wu issuing a written order that “Wu said in court if Drew is convicted of illegally accessing computers, the guilty verdict would set a precedent and anyone who has ever violated MySpace’s terms of service could also be found guilty of a misdemeanor.”³⁰⁴ Drew had been accused of participating in a cyber-bullying scheme in Missouri against 13-year-old Megan Meier. Drew created a fictitious profile on MySpace of a young man which she used to contact, flirt with, and later reject and insult Meier, a former friend of Drew’s daughter. Meier hanged herself in her home in October 2006.

MySpace’s user agreement requires registrants to provide, among other things, factual information about themselves, and to refrain from soliciting personal information from minors and using information obtained from MySpace services to harass or harm other people.³⁰⁵ Drew was originally charged with four potential felony counts of unauthorized computer access under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and prosecutors claimed that by allegedly violating the “click-to-agree contract,” Drew committed the same crime as any computer hacker. U.S. Attorney Thomas O’Brien said he filed the case in Los Angeles because that is where MySpace is based. At the time, Missouri did not have an online harassment law. Prosecutors said they would wait to review Wu’s written order before deciding whether to appeal.³⁰⁶
b. Woman Charged With Cyber-bullying Under New Missouri Law
In August 2009, a Missouri woman was charged with felony harassment for allegedly posting photos and personal information of a 17-year-old girl on the “Casual Encounters” section of Craigslist. Prosecutors say 40-year-old Elizabeth A. Thrasher posted the girl’s picture, e-mail address and photo on the Web site in a manner that made it appear the girl was seeking a sexual encounter. The girl then received lewd messages and photos from men she did not know. The alleged victim is the daughter of the girlfriend of Thrasher’s ex-husband and Thrasher and the girl had apparently been arguing on MySpace before the post of the girl appeared on Craigslist.³⁰⁷

Thrasher, of St. Peters, Mo., in suburban St. Louis, was the first woman charged with felony harassment under the state’s updated harassment law passed in 2008 in response to the death of 13-year-old Megan Meier, who committed suicide after she was the victim of a cyber-bullying scheme.³⁰⁸ The revised law eliminated the requirement that harassing communication be made “in writing or by telephone” so that now electronic communication, including online postings and text messages, can constitute harassment.³⁰⁹ The crime becomes a felony when committed by someone at least 21 years old against a person 17 years old or younger. Misdemeanor cases have been filed under the law.

Thrasher was freed on $10,000 bond, but a judge prohibited her from having a computer or Internet access at home. Her attorney, Michael Kielty, likened what Thrasher was accused of doing to someone posting a telephone number on a bathroom wall, telling people to “call Jane Doe for a good time.” Kielty believed such action may be “in poor taste” or “inappropriate,” but that it does not amount to a crime.³¹⁰