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Monthly Archives: August 2014

CA to Prohibit Anti-Yelp Clauses


With the recent passage of AB 2365 by both the California Assembly and Senate, California is one step closer to prohibiting contract clauses that require the consumer to waive her right to make any statements regarding the goods or services involved in the contract. The only remaining hurdle is signature by Governor Brown. The full version of the bill can be found below.

The need for AB 2365 arose because some businesses were creating so-called “anti-disparagement” clauses which prohibit customers from making negative reviews or comments about the services or goods received. In one egregious example, Kleargear.com imposed a $3,500 fine on Jen Palmer after she went on to Ripoff Report to voice her displeasure with the company. On Ripoff Report, she wrote that Kleargear.com had “horrible customer service practices.”

Palmer’s critique lead Kleargear.com to issue a $3,500 fine pursuant to the “anti-disparagement” clause which was allegedly included in the “Terms of Use” on its website. Palmer and her husband refused to pay the fine and Kleargear.com then reported this $3,500 as a debt to credit reporting agencies.

Jen Palmer subsequently brought a civil action against Kleargear.com claiming Fair Credit Reporting Act violations, defamation, and other torts. In June 2014, a federal judge issued a default judgment in favor of Palmer and awarded $306,750 in damages. Despite the ultimate triumph of Jen Palmer, many felt that AB 2365 was necessary to stop businesses from overly restricting the First Amendment rights of consumers.


Section 1670.8 is added to the Civil Code, to read:


(a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.

(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.
(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.
(c) Any person who violates this section shall be subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for the first violation, and five thousand dollars ($5,000) for the second and for each subsequent violation, to be assessed and collected in a civil action brought by the consumer, by the Attorney General, or by the district attorney or city attorney of the county or city in which the violation occurred. When collected, the civil penalty shall be payable, as appropriate, to the consumer or to the general fund of whichever governmental entity brought the action to assess the civil penalty.
(d) In addition, for a willful, intentional, or reckless violation of this section, a consumer or public prosecutor may recover a civil penalty not to exceed ten thousand dollars ($10,000).
(e) The penalty provided by this section is not an exclusive remedy, and does not affect any other relief or remedy provided by law. This section shall not be construed to prohibit or limit a person or business that hosts online consumer reviews or comments from removing a statement that is otherwise lawful to remove.

Terms of Service on Social Media Sites

Corinne Hui Yun Tan

This article considers the provisions within the terms of service (‘TOS’) of the social media behemoths of today — Facebook, YouTube, Twitter and the Wikimedia Foundation. In particular, it examines the main provisions that purport to regulate, from a copyright perspective, generative activities on social media sites. This empirical work is undertaken so that the article can shed light on the relationship between the contractual and copyright regimes. To do so, the article identifies the instances where the contractual regime is to some extent aligned with the copyright regime, and further, where there are potential incompatibilities between the two regimes. It also refers to the legal position in the United States, as a result of the nationality of the companies operating the social media sites examined. Additionally, this article makes references to the legal positions in the United Kingdom and Australia, to draw attention to the potential implications of the TOS on social media site users in other jurisdictions. The discussions in the early part of the article lead readers to its conclusion on the appropriate role for TOS, vis-à-vis the copyright regime, in regulating generative activities on social media sites. Its concern is a real one and can serve as a platform for future scholarly contributions to the field, given the worldwide usage of social media sites. To read the entire article go here.

Can You Own a Facebook “Like”? Mattocks v. BET


In another example of how social media continues to influence our legal system, a federal trial court in Florida has determined that those who maintain Facebook pages don’t necessarily have a property interest in the “likes” on that page. According to the trial judge in Mattocks v. BET,

“liking” a Facebook Page simply means that the user is expressing his or her enjoyment or approval of the content. At any time, moreover, the user is free to revoke the “like” by clicking an “unlike” button. So if anyone can be deemed to own the “likes” on a Page, it is the individual users responsible for them. Cf. Bland, 730 F.3d at 385-86 (holding that public employee’s“like” of political-campaign page was a protected form of free speech and expression). Given the tenuous relationship between “likes” on a Facebook Page and the creator of the Page, the “likes” cannot be converted in the same manner as goodwill or other intangible business interests.

This case arose from a dispute between Stacey Mattocks, an insurance agent, and Black Entertainment Television (BET) Network. In 2008, Mattocks developed an unofficial Facebook Page about “The Game,” a television show that chronicles the lives of professional football players and their significant others. The series which initially ran on CWN was canceled in 2009.

BET bought the rights to the series and began to air it in 2010. BET also hired Mattocks at $30 an hour to manage the Facebook Page. In 2011, BET and Mattocks entered into a letter of agreement in which Mattocks agreed to grant BET full administrative access to the Facebook Page. During the time that Mattocks worked for BET, the Facebook Page grew from 2 million to 6 million likes. Also, during this time BET turned the Facebook Page into an official one by displaying logos and trademarks. In addition, other employees from BET contributed content to the Facebook Page.

In 2012, Mattocks restricted BET’s access to the Facebook Page. Apparently, this was done in an attempt to encourage BET to hire her as a full-time employee. BET in turn created a new Facebook Page and asked Facebook to migrate the fans from the existing Facebook Page to the new page. BET also terminated its letter of agreement with Mattocks. Facebook eventually shut down the original Facebook Page run by Mattocks.

In 2013, Mattocks sued BET on three theories of liability (tortious interference with contract, breach of contract, and conversion) none on which were successful as the court granted BET’s motion for summary judgment and dismissed the suit. During the court’s discussion on conversion it stated the view that Mattocks did not have a proprietary interest in the “likes” on her Facebook page.

Judges and Social Media: ‘Friends’ with Costs and Benefits


Benjamin Cooper


A wave of recent judicial ethics opinions from the states and the ABA offer guidance on navigating the ethical minefield of social media use by judges. This Article surveys those opinions and argues that although they provide helpful guidance on a number of issues, they fall disappointingly short in providing clarity on the critical issue of whether judges may “friend” lawyers who may appear before them, and if so the extent of any disclosure obligation to other parties in litigation involving the social media“friend.” To read the entire article go here.

SCT Briefs Filed in Elonis v. United States (Facebook Threat)


In Elonis v. United States the defendant was convicted of violating the Interstate Communications Act and sentenced to more than three years in prison. His conviction stemmed from a series of ominous Facebook posts in which he threatened his wife, a former employer, and the community as a whole. Some of the individuals threatened by the defendant were friends with him on Facebook.

Here is a sample of what he posted:

That’s it, I’ve had about enough

I’m checking out and making a name for myself

Enough elementary schools in a ten-mile radius

to initiate the most heinous school shooting ever imagined

And hell hath no fury like a crazy man in a Kindergarten class

The only question is…which one?

Fold up your PFA [Protection from Abuser oder] and put it in your pocket

Is it thick enough to stop a bullet?

The defendant argues that these posts were rap lyrics and that he had no intent on carrying out what he wrote on Facebook. The defendant also claims that the posts were protected by the 1st Amendment and that in order to be convicted the government had to prove that he had a subjective intent to threaten.

This subjective intent standard is the law in a few jurisdictions (Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont). In contrast, the government argues that the lower courts were correct when they upheld the defendant’s conviction because the prosecution only needed to prove that a “reasonable person” would regard the defendant’s Facebook posts as threatening. It will now be up to the SCT to determine the applicable standard to apply to online criminal threats.

The specific issue in this case is whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort?

Brief for Petitioner, Anthony D. Elonis

Brief for the Marion B. Brechner First Amendment Project and Rap Music Scholars (Professors Erik Nielson And Charis E. Kubrin) in Support of Petitioner

The Slippery Slope of Material Support Prosecutions: Social Media Support to Terrorists

Emily Goldberg Knox

On September 21, 2013, a group of al-Shabaab gunmen attacked the Westgate Shopping Mall in Nairobi, Kenya, killing nearly seventy civilians. Al-Shabaab’s media wing, HSM Press, launched a public relations campaign on Twitter claiming responsibility for the attack, posting live information and pictures, and taunting Kenyan and global security forces with threats of future action. More recently, ISIS’ social media campaign has drawn much international attention. This Note discusses whether the U.S. government could successfully pursue material support to terrorist charges against social media companies for allowing designated foreign terrorist organizations to use their services and if so, the constitutional and policy implications.

NLRB and Social Media

The National Labor Relations Board: Perspectives on Social Media


Christine O’Brien


This article provides an update to the NLRB’s viewpoint on employees’ social media posts concerning work-related matters that impact the employment relationship. Work time and private lives are blurring further than ever, as employees post updates and comments on an astonishing range of matters, to sites including Youtube, Google, Facebook, Twitter, Snapchat, Instagram, Linkedin, their Tumblr blogs, and more. For example, in just a log-in moment, typing a mere 140 characters, employees apprise the world of their perspectives on what just transpired at the office, point of view (pov) included. Employees’ social media use has increased workplace pressures. The tensions between employers’ reputational rights, along with efforts to maintain workplace decorum and productivity, are increasingly conflicting with employees’ expressions of workplace frustrations and more in their online activities.

The National Labor Relations Act protects private sector employees’ regardless of union affiliation, to the extent their communications cover protected concerted activity – matters of shared concern relating to: wages, hours and working conditions, or mutual aid and protection. The National Labor Relations Board has taken advantage of the popularity of social media to educate the public about the protections afforded to employees by Section 7 of the National Labor Relations Act, and over the past five years has issued a number of reports, advice memoranda, and decisions to reinforce its role as administrative authority on employee’s employment-related social media use. The NLRB has signaled its readiness to respond to unfair labor practice charges filed by employees or unions against employers to the extent the employers have policies or act unlawfully to interfere with employees’ Section 7 rights. To get a sense of the nuances of these cases and the wide scope of employee communications that trigger NLRB scrutiny, this article summarizes a recent top ten cases and adds to these several recent additions.

The author recommends for employees to more closely manage and edit their posts so as to avoid workplace-related communications that are not protected by the NLRA. Furthermore, employers are advised to conform to the NLRA when reacting to employee posts that raise issues of concern, and further, to understand how the NLRB will construe their responses. To the extent employees reasonably construe employers are prohibiting protected concerted activities, such actions will be found to be unlawful. Finally, employers should create social media policies that provide specific guidance and examples for employees, managers, and even C-level officers, on the types of communications that are covered, and not covered. In this way, employees’ and employers’ interests are both well-served.