SOCIAL MEDIA – KNOW
THE RISKS
Jeremy D. Mishkin
jmishkin@mmwr.com
Jennifer Canfield
jcanfield@mmwr.com
DUMB THINGS I’LL
DISCUSS
Defamation
Bad Blogging
Invading Privacy
What Is Defamation?
False Statement
• Statement must be ‘fact’ – not
‘opinion’
• Common test: Is it capable of being
proven one way or another?
Published by Defendant
• At common law, both the writer and
the person/entity who publishes are
liable
Of and Concerning Plaintiff
• Must identify plaintiff sufficiently so
reader understands who is being
defamed
• No such thing as “group” libel
Meaning is defamatory
• Injures plaintiff’s reputation
Defendant acted culpably
• Negligent or worse
In the absence of privilege
• Most common –
• Employment context provides a
conditional privilege
• Litigation – in pleadings, or in testimony
Internet-Defamation Case Law - Phase
One
• Cubby v. CompuServe
• Stratton-Oakmont v. Prodigy
Internet Defamation, Phase Two
• Communications Decency Act §230(c)
What it says
• “No provider or user of an interactive computer
service shall be treated as the publisher or speaker of
any information provided by another information
content provider.”
Practical Effect of §230(c) – the “Get Out
Of Jail Free” card
• Declares that the ISP is not a Publisher
• Overrules Stratton-Oakmont v. Prodigy
• A string of victories for ISP’s since enactment
Hard Case #1 – Zeran
• Fake e-mail promotion offering T-Shirt
following OK City bombing
• Features Zeran’s name and number
• Zeran has nothing to do with it
Is AOL Liable for Defamation?
• Yes under common law, since
publisher/distributor was jointly liable
with author
• Not any more – pre-emptive Federal Law
immunizes ISP
Thanks, Section 230 (c)
• Zeran v. America Online
• Blumenthal v. America Online
• Doe v. America Online
BLOGGING
The Crystal Cox/Obsidian Finance case
Crystal Cox: Blogger? Journalist?
Blackmailer?
• Background
• Is a blogger entitled to “media” First Amendment and
Oregon law defenses?
• Jury verdict $2.5 million
• Reversed on appeal
WHEN YOU BLOG: IF YOU’RE
CREATING CONTENT, YOU CAN
BE LIABLE
Headlines – “Ripoff Report”
Where’s the line? How little can you do to
“create content” and still face possible
liability?
• Craigslist – sued for carrying illegal ads
• Held: immune (7th Circuit)
• People who created illegal ads are responsible
• Medium that merely carries the ads is not
Roommates.com – the anti-Craigslist
• Drop-Down Menus = no immunity
• Drop-downs are “asking illegal questions”
• “By categorizing, channeling and limiting the distribution of users’
profiles, Roommate provides an additional layer of information that
it is ‘responsible’ at least ‘in part’ for creating or developing.”
Roommates.com – the denouement
• Second appeal – defendant wins
• BUT in the meantime, “Jones v. The Dirty” defendant
denied summary judgment, citing original
The Dirty prevails on appeal too
• Held: Immune (6th Circuit)
EVEN IF YOU’VE GOT A CLAIM, IS
IT A GOOD IDEA TO SUE?
Counseling your client on the “Streisand
Effect”
Defamation law adapts to the Web
• Just because it’s online doesn’t make it a statement of
fact
• Just because it’s on the web doesn’t make it true
• If there is a ‘talk radio’ doctrine, there must be a
‘comments’ doctrine
PRIVACY – HOW
SOCIAL MEDIA CAN
CAUSE PROBLEMS
On purpose
• Ex-Reuters reporter Matthew Keys
• Chats with Anonymous
• Gives them his log-in
LA Times
…becomes
…IN CHAT ROOM TRANSCRIPTS RELEASED
BY THE DEPARTMENT OF JUSTICE, THE USER
ALLEGED TO BE KEYS URGES AN
ANONYMOUS HACKER TO “GO F--- SOME S--UP.”
Inadvertently – why not to feed the trolls
• Meet “Violentacrez”
Violentacrez created some groups on
Reddit
• Chokeabitch
• N****rjailbait
• Rapebait
• Hitler
• Jewmerica
• Misogyny
• Incest
The Internet Police Take Action
• Not litigation
• “Doxxing”
• “SWATTING”
The Parable of the Boston Marathon
Bombing
WHAT FAILS?
Forgetting that you’re in public
• Scott Walker’s deputy finance director:
Forgetting you’re in public
Forgetting you’re in public
Lincoln Financial Field Eagles game-day employee Dan
Leone:
"Dan is [expletive] devastated about Dawkins signing with Denver. .
.Dam Eagles R Retarted!!"
SHOOTING YOURSELF IN
THE FOOT IN FRONT OF
THE WHOLE WORLD--EXAMPLE #1
Plaintiff: “I cannot bend down any more – my
leg and ankle are too badly injured.”
EXAMPLE #2: “NO, I
DON’T DRINK AND I DON’T
SMOKE MARIJUANA.”
“OH, THAT’S NOT MINE.”
Lessons learned
• Free speech is rampant online – much is disgusting or
•
•
•
•
abhorrent
Some people react badly to criticism
Especially powerful people
If you set out to trigger hostile reactions, don’t be too
surprised when you get them
Social Media is a great way to shoot yourself in the foot in
front of the whole world
THANK YOU.