Flame Wars – Legal Concerns with Social Media Posts

Many of us have been tempted to post that snarky comment or call attention to a bad business practice on social media. Perhaps your own business or reputation is being maligned, and your natural instinct is to fight back. But posting comments that are critical of another person or business generates potential legal concerns. Adding facts, images, or private information to the post can increase those risks. Consider the following issues when posting on social media in the heat of the moment.

Defamation: Perhaps the most significant legal concern involves defamation. To be liable for defamation, the claimant must prove that you published a false statement of fact that caused injury to another person. State law varies regarding the level of intent you must have when posting the comment. If you are posting about a public figure, you must act with “malice” which means knowledge or reckless disregard of the truth or falsity of the statement. Celebrities and politicians are generally considered public figures, but private individuals can be drawn into the limelight on certain issues and be deemed involuntary public figures. Similarly, individuals can gain prominence in a particular field and be found to be “limited purpose public figures” for certain issues. This is important because it is difficult to prove defamation of a public figure given the malice requirement imposed by the U.S. Supreme Court.

Defamation only applies to statements of fact which can be proven true or false. Truth is an absolute defense to a defamation claim. Opinions, on the other hand, are protected by the First Amendment even if publishing an opinion causes harm to an individual. Therefore, you can safely post a comment claiming that a person or business “sucks” since that statement is not capable of objective proof. However, stating that a business is “bankrupt” or “illegal” is a statement of fact that must be true to avoid potential exposure for defamation. Some statements are deemed so harmful that the claimant does not need to prove any monetary losses, and damages will be presumed (defamation per se). Common examples include false allegations of criminal conduct or disease.

The law recognizes various privilege defenses to defamation claims such as absolute privilege (i.e., a witness statement made in court), litigation privilege (i.e., statements made in law suit filings), or qualified privilege (i.e., statements on matters of public concern made in good faith for some recognized societal need or duty). Other defenses include substantial truth (where the gist of the statement is true even if it contained some inaccuracies), and rhetorical hyperbole (comments so expansive that nobody would understand them as statements of fact).

While these defenses are useful in court, defamation claims are expensive to defend. Under the “American Rule”, each party typically pays their own attorneys fees regardless of who wins a lawsuit. When faced with the daunting attorneys fee expenses of defending a defamation case, many defendants settle and retract their statement to avoid this financial exposure. This problem has caused some states to pass Anti-SLAPP laws which allow defendants to quickly end frivolous defamation claims and recover attorneys fees if the lawsuit was brought to silence protected speech. But not all states have Anti-SLAPP laws, and Congress has not yet passed such a statute at the federal level. Therefore, defamation can pose a significant risk when posting comments on social media about factual matters.

Invasion of Privacy: Some matters are deemed to be extremely private and the law allows claimants to sue for invasion of privacy rights if such private information is exposed publicly. Invasion of privacy claims can arise if you expose facts about someone’s private life which are highly offensive to a reasonable person, and the exposure was for no legitimate purpose. For example, disclosing details about a person’s sex life that are not publicly known can constitute invasion of privacy.

False Light: This is another type of privacy claim where an individual exposes potentially misleading or damaging information about another person. This claim may result, for example, if an individual was identified in a social media post as a participant in a violent protest when they were only an observer. Some states do not recognize false light claims, however making misleading posts in states that do can trigger significant legal risks.

Intrusion on Seclusion: Another variant of invasion of privacy; a seclusion claim is based on invading someone’s private space. For example, hacking into someone’s webcam or peering into a bedroom window and taking pictures without consent could trigger a seclusion claim. The violation occurs when the private area is breached, so this type of claim does not require publication of the information. However, publication can increase the damages.

Publicity: Violation of the right of publicity can be asserted as a common law privacy claim, but it is also governed by specific statutes in many states. This occurs when a poster uses someone’s name, image, or likeness without their consent. Many states require that use to be for some commercial benefit. Publicity rights extend to a person’s face or even their voice in some circumstances. Posting an image of a performer without their consent in an effort to bolster the popularity of a social media profile could generate a publicity claim.

Copyright: Posting any copyrighted image or video can result in an infringement claim. If the material was registered with the U.S. Copyright Office before the publication, the poster could be responsible for attorneys fees and statutory damages of up to $30,000, or up to $150,000 in cases of willful infringement. Even if the image was not registered beforehand, the copyright holder can pursue claims for actual damages.

Trademark: If the post included a business name, logo, or slogan that is used to identify a brand, the poster can be sued for trademark infringement. The primary concern here involves potential consumer confusion regarding your affiliation with the trademark holder if you include their mark. Trademark claims are subject to numerous variables such as whether the mark was registered, whether it has acquired distinctiveness in the marketplace, and whether the mark is enforceable.

Trade Secrets: Although not as well-known as copyrights and trademarks, trade secrets are another form of intellectual property. A trade secret is any confidential information that confers a competitive advantage to the owner of the secret information, if the owner uses reasonable efforts to maintain the secrecy of that information. Often, trade secret misappropriation claims are brought when a disgruntled or former employee shares confidential business information on social media without permission. If a court finds that a person has misappropriated a trade secret, it may issue injunctive relief, actual damages, and, if the person acted willfully or maliciously, punitive damages and attorneys fees.

First Amendment Issues: Not all posts which include someone’s likeness, content, or trademarks, are actionable as a legal claim. The First Amendment imposes certain limitations where the post is newsworthy, educational, or otherwise qualifies as “fair use.” All fair use defenses are dependent on the specific facts of the case, and no bright lines exist. Therefore, it is appropriate to learn about the relevant fair use factors before relying on this concept as legal protection for a social media post.

Conclusion: Social media posting is a part of everyday life for most of us. Sometimes heated debates develop on emotional topics. This can often lead to responses that cause damage to someone’s business, intellectual property rights, or personal reputation. Defamation claims and other lawsuits based on social media posts are on the rise. Before clicking the post button, consider the potential legal risks. Discretion is often the better part of valor when an online conversation turns into a flame war.

Lawrence Walters heads up Walters Law Group. Nothing in this article is intended as legal advice. Mr. Walters can be reached at www.firstamendment.com or on social media @walterslawgroup.

DMCA Evolution: Forum Solicits Input on Possible Changes to Notice and Takedown Procedures

The Digital Millennium Copyright Act’s (DMCA) “notice and takedown” procedure and the attendant “safe harbor” protections afforded to service providers often spark controversy and debate. Originally designed as a way to balance the interests of copyright holders and online service providers, the DMCA’s 14 year history has demonstrated that well-intended laws can quickly become outdated and misused.  Often DMCA notices are sent by, or on behalf of, competitors seeking to damage another party’s business, or by those who do not understand basic “fair use” concepts.  On the other hand, DMCA safe harbor can be manipulated and invoked by parties that Congress never intended to protect from copyright infringement liability.

Change is in the air, however, at least for traditional DMCA notice and takedown procedures. Recently, the United States Patent and Trademark Office opened a public forum in pursuit of ideas for improving the notice and takedown process explicated by the DMCA. The forum was to be the first of a series of such, all geared towards the ultimate goal of increased efficiency, as well as continued protection for copyright holders, under the DMCA. The public discussion came after a green paper released in July 2013 by the Department of Commerce’s Internet Policy Task Force examined problems with the current notice and takedown process.

The purpose of the forum, according to Patrick Ross, a USPTO spokesman, was to solicit input to answer the questions raised by rights holders, service providers and the public at large, as addressed in the green paper.

The speakers were from a diverse cross-section of those affected by the DMCA: The Software Alliance, the Computer and Communications Industry Association, the Artists Rights Society, Google and many others.

One of the most common complaints from rights holders, according to the forum, is the inability of small and medium-sized artists or enterprises (SME’s) to keep up with infringement of their work. A proposed solution to this was the encouragement of collective representation for infringement research.

Additionally, one of the main and pressing topics examined at the forum was whether standardization of forms for the notice and takedown procedure would be helpful, both to rights holders and service providers. Overall, many of the participants believed that standard forms for notices seemed a good beginning, but certainly not a good end. The feeling at the forum was that there remained much work to be done. Several of the speakers, both service providers and rights holders, stressed the need to maintain balance in any solution designed to bring more efficiency to the DMCA, so that both sides would find value in the notice and takedown procedures.

Another possible solution discussed was creating “Trusted Submitter” programs, something Google has done, to more efficiently process DMCA notices. More diverse solutions were offered as well, such as the potential creation of a certification mark or badge for Internet search results, to alert consumers which pages were authorized or licensed sites for the particular intellectual property being searched for.

Given the large volume of notices received by most service providers, which often makes responding in a timely fashion difficult and costly, this is a great moment in time to examine better and more efficient methods of protecting copyrights online. The DMCA has been an important tool, for both rights holders and service providers alike, and may need to be updated to continue as such.

As discussed at the forum, it is important to keep in mind the balancing of interests that goes into any intellectual property issues on the Internet. Rights holders must be given a fair and easy way to prevent and police infringement, while online service providers must have an opportunity to efficiently and easily handle incoming notices.  Those who abuse the notice and takedown process must also be held accountable.

COICA – Friend or Foe?

Between the entertainment industry honing in on infringers and the current presidential administration looking to “crack down” on illegal content online, it’s no wonder that Senator Leahy’s “Combating Online Infringement Act” (COICA) has been making headlines again the last few months.
Briefly, COICA enables the Attorney General to institute an in rem action against the domain name of a website deemed to be “dedicated to infringing activities.” This means, if a site “engages in” any type of infringing activities where such activities, if “taken together” are “central to the activity” of the site, the site is in violation of COICA. Upon a finding of infringement, courts are authorized to issue injunctions against the domain name itself (as opposed to the registrant of the domain name), which may consist of ordering the domain name’s registrar and registry to “lock” the domain name. This “lock” effectively bans access to the site via the domain name. Courts would also be authorized to enjoin any “operator of a nonauthoritative domain name server,” a definition that could potentially extend liability to Internet Service Providers, requiring the operator to “take technically feasible and reasonable steps designed to prevent [the] domain name from resolving to that domain name’s Internet protocol address.”
Many believe that the problem with COICA lies in its lax due process procedures, as a U.S. court can essentially shut down a website operated anywhere in the world without an judicial determination of illegal activities or any application of structured dispute resolution. Most jurisdictions would call such a process an unlawful prior restraint on speech, but Senator Leahy and his supporters are taking a route we’ve seen all too often in recent years, with the mentality of ‘if you aren’t doing anything wrong, then you have nothing to worry about.’
Although the Obama Administration has made copyright enforcement a key issue in the last two years, the feds have really been bringing on the heat, recently. The reasoning? Supposedly to promote economic growth and competition, job creation and protection of American innovation. One can’t help but look at such an altruistic statement with a healthy dose of skepticism when massive legislation like COICA pops up and the witness list endorsing the Act in Senate Committee hearing are corporate giants like the Go Daddy, Visa and Verizon.
So what about free speech? What about censorship? What about the right of ISP’s, domain registrars, domain owners, payment processors, and advertising associates to not have to cut off all services to a website simply because the site has been accused of something? As the Electronic Freedom Foundation has pointed out, the fact that the government can block the whole domain and not just the infringing “portion” of the site is what fuels the censorship fire. Critics also cite to the fact that copyright owners have already been provided the means to combat online infringement via the DMCA. EFF has stated, and probably accurately so, that
“COICA streamlines and vastly expands [misuse of DMCA provisions resulting in damage to fair use and free expression]; it would allow the Attorney General to shoot down a whole domain including all the blog posts, images, backups, and files underneath it. In other words, it’s not just possible but probable that a great deal of legitimate, protected speech will be taken down in the name of copyright enforcement.”
Leahy’s quote that, “There’s no First Amendment right that protects thieves […]” sums up the rebuttal, I suppose. It’s true that not all communications fall into the realm of protected speech, but is shutting down a communicative business without any recourse to an adversarial hearing, and possibly extending that same liability to its business affiliates, the most reasonable way to regulate theft of IP? Supporters claim that the legislative intent of the Act is to block sites whose principal business purpose involves engaging in blatant IP infringement, not those who utilize material protected by fair use or “accidentally link to a copyrighted image.” Simple enough, right? It’s not like the federal government is trying to pass a bill unabashedly resulting in Internet censorship and effectually extending U.S. Attorney General jurisdiction to, well, everywhere. Oh, wait…
And what about that proposed legislation that would allow the President to push a button to shut down the Internet?
It’s too soon to tell for sure if COICA will go through, and Senator Leahy most certainly continues an uphill battle. But with an issue like global Internet regulation and the kind of conglomerate lobbying that COICA is garnering in Washington, this whole thing has to make even the most faithful supporter of the American political system ask themselves, ‘Is this going to be a case of money talks and freedom walks?’

The Marketplace Has Spoken… And At Least One Company Has Listened

It’s no secret that business revenue models employed by industries across the board have had to drastically evolve in recent years to keep up with advances in technology, and adult entertainment is no different. Oddly, however, the adult industry has lagged behind, in its recognition of consumer demand for ala carte-type pricing models employed by other facets of the entertainment industry. But “better late than never” must be the new mantra for Pink Visual, as the adult entertainment megacorp unveiled its latest venture earlier this month.
PVLocker.com is a cloud-based distribution site promising to provide your porn on your terms. PVLocker utilizes an open source browser providing the customer with an app store-esque environment to purchase the desired content on a per file basis. Upon purchase, the user may then access the files, which are stored on Pink Visual’s server cloud, anywhere and anytime via PC or mobile device.
Use of PVLocker.com will initially be limited to storing Pink Visual content only, however, the company plans to eventually offer storage of any user-owned content. Now before your Infringement Radar starts buzzing off the charts, have no fear, Pink Visual has no plans to allow content sharing on the site. Hence, allowing PVLocker to fill a very noticeable gap in the adult website marketplace, while still keeping happy the almighty copyright holder.
Even though Pink Visual obviously understands the necessity of business model evolution, it intends to continue distributing content through the traditional subscription basis as well, as long as it makes fiscal sense to do so. How long will that be? No one can be certain what kind of effect this model will have on the traditional monthly membership business model. But one thing is for sure, when you have the immediate gratification of one-click payment at your finger tips versus the hassle of recurring billing, obsolescence is a much more real possibility than ever before.
Much like the experiences of the recording industry a few years back, adult content distributors are finally taking notice of the fact that they have been fighting a losing battle and that the marketplace will always win. The recording industry fought these battles for years – litigating against Napster, Grokster, and others, in the attempt to beat back rampant audio file piracy. The recording labels then dipped their collective toe in the waters of end user infringement litigation, only to suffer a tremendous public backlash, causing a quick 180 reversal on that strategy. One would think that this trial and error would have provided an early roadmap for the adult industry, when it began struggling with its own piracy headaches. Instead, many companies appear wedded to the concept of replacing lost revenues with legal judgments against infringers. While every copyright holder is entitled to enforce its rights and bring infringers to justice, that effort should be tempered with a recognition that less infringement might be occurring, if a realistic alternative to the $29.99/month recurring membership model were routinely offered to adult content consumers.
Flexibility is key and nostalgia breeds irrelevance – Pink Visual is embracing the future of adult content distribution by providing its customers with their entertainment “when they want it, where they want it, and how they want it.” [Cue Queen’s “I Want It All.”] Continued inventiveness like this will always be preferable to reliance on litigation as a revenue line item.