Guide Through the Legal Jungle

When Does Cybergriping about a Business Cross the Legal Line?

If people are posting negative comments online about your business, can you do anything about it? It depends.

Not every negative statement posted online is actionable. Criticizing a person, product or service online is often referred to as cybergriping – and it is perfectly legal as long as the cybergriper sticks to the facts.

The First Amendment protects a customer’s rights to share with others the truth about any bad experiences he has had with a business. In many cases, the disgruntled customer may even use a domain name that mimics and parodies the business’ domain name – JonesCarpetCleaningIsAwful.com.

However, the cybergriper steps outside legal boundaries when his criticism includes false statements about the business and the business suffers harm as a result of the false statements. In that case, the business may have a valid legal claim that’s worthy of a lawsuit – or at least a cease-and-desist letter.

What Happens When Your Smartphone Starts Monitoring Your Moods?

A smartphone that recognizes your mood just might be on the horizon. A recent San Diego Union Tribune article “Can smartphones get attuned to your moods?” discusses current research that would structure your music playlists based on your mood. The method determines your mood by analyzing data from sensors in the smartphone - the accelerometer, the GPS device and the microphone. Researchers are also considering getting data from monitoring keywords in the emails you send and the content of the websites you visit.

The article briefly quotes me on the privacy issues such monitoring would raise – of which there are several.

Is It Legal for Your Smartphone Provider to Collect This Information?

At the moment, internet and digital privacy is mostly self-regulated. Hence, there’s no federal law stopping the people behind your smartphone from monitoring the websites you visit and your location. However, there are lots of government officials and advocacy groups who would be happier if providers got consumer permission for such monitoring. Monitoring a person’s emails or phone calls without their permission is another matter and would  likely violate wiretapping laws, the Computer Fraud and Abuse Act, the Stored Communications Act, and other state and federal laws.

Should Consumers Grant Permission for Smartphones to Monitor Their Moods?

Maybe. There are pluses and minuses to allowing your digital equipment to have sufficient information about you to make accurate recommendations for the music, books, products, travel plans, job opportunities, etc. that may interest you. From a privacy perspective, the minus of having too much personal information about you available in the digital world is that the information may be used in ways you don’t anticipate. When information is collected about consumers, there is always someone who wants access to that information. Whether or not the people/institutions can legally access that information depends on who they are and why they want the information.

Writing Effective Disclaimers for Your Twitter Account

It has become increasingly common for companies to have policies concerning employee online activities. I’ve previously blogged about what a company social media policy may legally require.

Most company social media policies require that if the employee identifies himself as an employee of the company, the employee must include a disclaimer such as the following:

The views expressed on this post are mine and do not necessarily reflect the views of the ABC Company.

But how does one include that 102-character disclaimer on a medium like Twitter that allows only 140 characters per message? Many people include the disclaimer as part of their Twitter profile. Here are some of the effective short disclaimers I’ve recently seen:

• Tweets independent of ABC Company
• Opinions my own
• Tweets my own, composed for free.
• Tweets in personal capacity
• Links/RTs are not endorsements.

Sounding Off Online . . . and Staying Out of Trouble

Telling it like it is online can generate accusations of defamation, cyber bullying, trademark infringement, and other legal claims with long names. Here are some of the tips I share in The Cyber Citizen’s Guide Through the Legal Jungle to help you side-step the potential negative consequences of speaking your mind online:

1. Be Yourself. While you can post your online remarks anonymously, you should not pretend to be someone else. Online impersonation can be a crime.
   
   
2. Stick to the Facts. Your risks of a defamation claim increase if you stray from verifiable facts when you discuss real people and real events. Changing the names is not always enough.
   
   
3. Solicit Comments. If you offer news or public affairs information through a blog or online forum, offer the real people and companies mentioned an opportunity to confirm or deny any allegations. Exercising such journalistic objectivity may help you qualify for protection under laws such as the reporter privilege and shield laws.
   
   

4. Respect the Limitations on Using Other’s Trademarks. It is generally legal to use specific company names and product brand names in your online commentary. However, you cannot use those names in a way that makes people mistakenly think you are affiliated with or sponsored by the targeted company.
   
   

5. Consider the Impact on Your Job. Your employer may legitimately fire you for your online postings if you disclose any of your employer’s confidential information, make defamatory comments about your employer, threaten people in the work place, or otherwise violate your employer’s social networking policies.
   
   

6. Disclose Any Quid Pro Quo. If you post reviews for which you receive free sample products or other compensation, federal guidelines indicate that you should disclose that fact. Federal guidelines also include the expectation that you provide truthful and substantiated descriptions of the products you review.

How Your Online Activities Impact Your Job Prospects

Many companies have policies concerning employees’ online conduct. (See the blog posting, What a Company Social Media Policy May Legally Require). Failing to know and follow your employer’s social media policy may get you booted out of your current job and make it difficult for you to secure a new job.

As a job seeker, you do not want any potential employer seeing social media postings in which you disclose a past employer’s confidential information or in which you bad-mouth a past employer.

Some internet infractions are illegal activities for which your employer can justifiably fire you – and perhaps even sue you or press criminal charges against you. They include disclosing your employer’s confidential information, making defamatory comments about your employer, and threatening people in the work place.

Other infractions are more akin to social blunders and simply make you look like an oaf no one would want to hire. This category of infractions include using your work email address while hunting for a new job.

Internet Legal Trends to Watch. Part 5: Net Neutrality

Congress and the Federal Communications Commission (FCC) are headed to a showdown over how and whether the FCC should regulate the flow of information over the internet. The FCC adopted a net neutrality order last December.

What Is Net Neutrality?

Very simply, net neutrality means setting traffic rules for the flow of data on the internet. When the net is neutral, all information regardless of its source is treated equally. There are no gatekeepers or roadblocks so reaching John Smith’s website is as easy as reaching the website of Google, Facebook or the Wall Street Journal.

Net neutrality is a plus for for consumers and start-up companies because net neutrality guarantees an even-playing field for all online content. On the minus side, analysts and broadband companies complain that internet regulations forcing net neutrality will inhibit capital investment, deter innovation, raise operating costs, and ultimately increase consumer prices

What Has the FCC Proposed?

The FCC net neutrality order in part provides that landline broadband providers can’t block legal websites. The order imposes fewer restrictions on wireless carriers than on wired carriers. While the order discourages landline broadband providers from offering faster delivery of data for money, the order doesn’t explicitly prohibit them from doing so.

Where Does Net Neutrality Stand?

There are questions about whether the FCC has the authority to regulate the internet. Verizon has already filed a lawsuit arguing that the FCC does not have the right. Both Democratic and Republican members of congress have threatened to block the FCC’s net neutrality regulations.

Internet Legal Trends to Watch. Part 4: Copyright’s Race to Keep Up with the Internet?

Along with the entry of internet access into more homes and into our daily lives comes more opportunities for piracy and new attitudes about copyright law. In response, content owners have tried to squelch the unauthorized online sharing and copying of their copyrighted content.

Starting with the RIAA

Beginning in 2003, the Recording Industry Association of America (RIAA) sued or threatened to sue over 35,000 individuals who participated in P2P file sharing of music. Most of the RIAA lawsuits never went to trial and resulted in settlements in which the accused file sharer paid a settlement fee of several thousand dollars. Due in part to complaints against RIAA’s methods and the failure of the lawsuits to deter piracy significantly, the RIAA has phased out its strategy of suing individual file sharers.

Righthaven Follows

However, other content owners have picked up where the RIAA left off. Righthaven is among the most notorious. Since last year, Righthaven filed over 200 copyright infringement lawsuits against bloggers and website owners for posting newspaper articles without permission. Those hit with Righthaven lawsuits include former senate candidate Sharron Angle and the Democratic Party of Nevada. For a blow-by-blow account of the Righthaven lawsuits, read Steven Green’s stories, a Las Vegas Sun reporter who has written extensively about the lawsuits. Another content owner trying its hand at massive copyright infringement lawsuits is Third World Media, which has tried to sue 1,243 individuals who downloaded copies of the pornographic film, Tokyo Teens.

What These Cases Mean for Everyday Internet Users

The Righthaven lawsuits may provide more guidance on how far one can push fair use online. Most of the people sued by Righthaven who attempt to defend themselves rather than settle claim their use of the articles qualifies is a fair use. That argument worked in the case of a realtor who used only eight sentences of a thirty-sentence news article. However, most of the Righthaven defendants have copied an entire article. For them, it is more difficult to make a persuasive fair use argument.

Many have also criticized Righthaven for filing lawsuits without first issuing a DMCA takedown letter. While the majority of content owners would likely send a takedown letter prior to filing a lawsuit, there is no statutory requirement that they do so. Hence, it will be interesting to see how this “no warning” argument resonates with the courts.

Internet Legal Trends to Watch. Part 3: Responses to Cyber Bullying

The tragic suicide in 2010 of Rutgers University student, Tyler Clementi, centered national attention once again on cyber bullying. After a roommate posted a sex tape of Clementi on the internet, Clementi jumped to his death from the George Washington Bridge.

Developing Cyber Bullying Legal Remedies

What can be done to combat cyber bullying and its close cousins cyber stalking, and cyber harassment?

Congress has considered legislation that would impose federal penalties for cyber bullying. The Megan Meier Cyberbullying Prevention Act was introduced in the last session of Congress – but did not pass into law. New federal legislation may be introduced in the current session.

In the meantime, states are not idly waiting around. They have enacted new state laws and expanded existing laws to incorporate prohibitions against cyber bullying and cyber stalking by means of the internet. For example, earlier this month, New Jersey passed the "Anti-Bullying Bill of Rights" which some call the strongest anti-school bullying law in the nation. The new NJ law includes specific provisions to address bullying via the internet and other digital communication forms and requires schools to report, investigate and resolve bullying issues within ten days – regardless of whether the bullying takes place at school, outside of school, or in cyberspace.

Other states have updated their laws to crack down on cyber misdeeds. Here are just a few of which I’m aware:

• California recently enacted SB 1411 which makes it a criminal misdemeanor to credibly impersonate someone through or on a website or by certain other electronic means to harm, intimidate, threaten or defraud another person.
• in response to the Meagan Meier case, Missouri passed the Internet Harassment Law, effective August 28, 2008. which updated harassment laws to remove the requirement that the communication be written or over the telephone and extending it to harassment from computers, text messages and other electronic devices.
• Nebraska is considering LB 123, which is cyberbullying law similar to the one just adopted by New Jersey.
• As of September, 2009, it became a crime in Texas to impersonate someone online.

More states are certain to follow this trend.

Internet Legal Trends to Watch. Part 2A: More on Wikileaks and Online Privacy

In previous postings in this Internet Legal Trends to Watch series, I discussed Online Privacy and Wikileaks. A development in the Wikileaks story has some interesting overlap with the question of how much of our personal information is available online.

Evidently, the federal government subpoenaed information from the Twitter accounts of Julian Assange and other Wikileaks associates. When a private individual or organization tries to obtain your anonymous online identity or online information, you must be notified of the subpoena request so you have an opportunity to “quash” the subpoena and keep your information private. In the Wikileaks case, the government got the subpoena with a gag order prohibiting Twitter from notifying Assange and the other individuals of the subpoena request.

We only know this because Twitter successfully fought to remove the gag order and then informed Assange of the subpoena request. The disturbing part of the story is that the government likely subpoenaed other social networks used by Assange and that those social networks may have handed over personal information without making any attempts to fight the gag order.

Reporter, Barton Gellman, offers a more detailed overview in the article “Twitter, Wikileaks, and the Broken Market for Consumer Privacy”.

Internet Legal Trends to Watch. Part 2: Wikileaks Raises Questions about Rights of Internet Journalists

One of the many questions triggered by the Wikileaks story is whether laws that protect journalists and the print media apply to bloggers and others who provide newsgathering services via the internet. The trend is that disseminating news through a blog or other new media forum does not disqualify you from treatment as a journalist. If you act like a journalist, the courts are more inclined to treat you like a journalist.

The government’s desire to prosecute Julian Assange over Wikileaks’ release of thousands of classified documents could introduce additional nuances into the treatment of internet journalists. The government is considering prosecuting Assange under the Espionage Act which broadly criminalizes willfully retaining or communicating information relating to the national defense when done with knowledge that the communication could damage the United States.

Even though U.S. newspapers and journalists regularly publish stories and documents based on leaked government information (e.g., think the New York Times publication of the Pentagon Papers), the Espionage Act has never been used to indict a journalist. This is primarily in deference to the First Amendment. Several commentators have distinguished the actions of Assange and Wikileaks from the actions of more established and traditional media. Nevertheless, if Assange is prosecuted with anti-espionage laws, what does that mean for the news media’s reporting of defense topics?