In ‘Oh, Really?’ the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fun and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise.
The social networking phenomenon Facebook recently attained new heights as an integral part of pop culture when the film, The Social Network, achieved public acclaim by winning three Oscars this year. While it will be of continuing interest to see whether any of the characters depicted in the film do file legal complaints about their cinematic portrayals — as it is unlikely that permission for such use was requested by the movie’s producers — the social media site has spawned some novel legal situations in and of itself.
In considering a litigious proceeding involving the Facebook movie, as noted by attorney Aaron Moss, “these individuals have a choice fraught with irony: to succeed on a libel-by-fiction claim, a plaintiff must prove that she’s similar enough to a fictional character that the audience will think the film is about her — but at the same time that she’s different enough from the portrayal that her reputation is harmed by it.”
On another semi-legal note, the site’s founder himself claimed his safety was threatened by a man who persistently asked for money via Facebook messages and appeared at his home and office. As a result of the harassment, Mark Zuckerberg sought the help of the law and obtained a restraining order.
As for the social networking site itself, it is well-protected from liability stemming from user-posted content. In 2009, a New York Supreme Court decision dismissed Facebook as a co-defendant in a defamation suit based on Section 230 of the 1996 Communications Decency Act (CDA) — which the Electronic Frontier Foundation describes as a powerful federal law that relieves websites from liability in suits based on user-posted content:
Section 230 says that “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.” This U.S. provision preempts any state laws to the contrary: “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” The courts have repeatedly rejected attempts to limit Section 230 to “traditional” Internet service providers, instead treating many diverse entities as “interactive computer service providers.”
Legal issues surrounding Facebook have become rather common as more users embrace social networking as part of their day-to-day lives. See one such legal illustrative list provided by Citizen Media Law Project. It appears that Facebook, as an integral part of the pervasive social networking phenomenon, is redefining traditional notions of justice and fair play in judicial systems around the world, affecting issues of defamation, jurisdiction, service of process, and even admissible evidence.
My alibi … on Facebook: As we all know, the alibi defense is perhaps as old as the judicial system itself but remarkably, and thanks to technological innovation, social media have provided new ways to back up an alibi now that people document their daily lives, perhaps daily moments, with status updates, posts and photo tags.
According to Dallas-based attorney John Browning who studies social networking and the law, “digital information can be more easily authenticated, because of date and time stamps provided on computer servers.” So far, the social networking site has helped at least one Facebook member stay out of jail, according to Time Magazine online.
Apparently, an accused 19-year-old New Yorker may have pioneered the successful use of Facebook to provide himself with an alibi when charged with mugging two males at gunpoint last October. This young chap maintained his innocence and cited his Facebook update as an alibi, sufficiently convincing a prosecutor that he didn’t commit the crime because he was on the phone with his girlfriend at a flapjack eatery at the time. He happily issued this statement on the matter: “What we had in hand was irrefutable proof.”
You have been served … on Facebook: It appears also that Facebook is no longer just for stalking exes, wasting time or doing background checks on potential jurors. It apparently can be used now to serve processes or legal documents. The Telegraph reported recently that after British citizen had exhausted all the conventional ways to contact a defendant and was granted permission by an East Sussex judge to serve a summons via Facebook. As this is the second reported instance of Facebook’s use in this legal manner, we can only wonder if the United States will be next to follow. The other instance of Facebook service? It occurred in 2008 when an Australian court gave permission for Facebook to be used to serve papers informing a couple that they had lost their home for defaulting on a loan.
Admissible Evidence… From Facebook: It appears that protesting the use of a photo as evidence because it was uploaded and tagged by someone else on Facebook is not a valid claim in the United States. In a recent custody case, the court held that:
“[t]here is nothing within the law that requires [one’s] permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires [one’s] permission when she [is] “tagged” or identified as a person in those pictures.”
Succinctly: entertaining Facebook photos uploaded and tagged without permission constitute evidence admissible in court.
Defamation… on Facebook: Perhaps the most prevalent cause of action stemming form Facebook use, thus far, has been defamation- false statements of fact posted on Facebook about a person, done in a manner viewable to third parties that harms the reputation of the person about whom the negative statements were made. Theoretically, the only difficult part of a Facebook defamation suit could be the ability to prove damages. Or maybe not so difficult, as Facebook is so different from the print and online media in that it is very easy to know exactly who may have read a Facebook post.
Julie Hilden, an attorney and First Amendment expert, has discussed how, in law suits involving Facebook damages, one could hypothetically interview all the plaintiff’s “friends” to see if they “saw the posting at issue; if they believed it; if it changed their view of the plaintiff; if they passed on the information to others; if they would now be less likely to recommend the plaintiff for a job; and so forth.” She also pointed out “if such questions were asked of everyone who saw a particular posting, then the presumptions that the law makes could be replaced with actual evidence. Moreover, the focus on punishment and pain, when it comes to defamation damages, could be replaced by a focus on what was supposed to be the core concern of defamation law all along: damage to reputation.”
Other legal claims to keep an eye out for… From Facebook: It should be noted that some instances of tagging may be actionable when the commenting on and tagging Facebook photos. This can constitute harassment, infliction of emotional distress, or invasion of privacy. Using a photo on the web, including pictures snagged from a Facebook page, without permission for commercial purposes might violate an individual’s right of publicity. And there are issues of copyright infringement when the person appearing in the photo owns the copyright on it (e.g., it’s a self-portrait).