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Monthly Archives: February 2016

Reforming the Law of Reputation

Frank A. Pasquale


Reforming the Law of Reputation

Abstract:  Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy, credit reporting, and expungement. The common thread is automated, algorithmic arrangements of information, which could render data properly removed or obscured in one records system, nevertheless highly visible or dominant in other, more important ones.

As policymakers reform the law of reputation, they should closely consult European approaches to what is now called the “right to be forgotten.” Health privacy law, credit reporting, and criminal conviction expungement need to be modernized for the digital age to reflect the power of aggregating intermediaries. Search engines, social networks, and other digital tools may maintain the salience and power of certain information long after formal processes have determined it to be untrue, irrelevant, or unfair. They must take on new responsibilities in order to reflect the values inherent in older schemes of reputation regulation.


Destined to Collide? Social Media Contracts in the U.S. and China

Michael L. Rustad


Thomas H. Koenig


Wenzhuo Liu


Destined to Collide? Social Media Contracts in the U.S. and China


Part I of this article is the first empirical examination of the Chinese social media universe. We develop a typology of twenty-five of China’s most popular social media sites and compare terms of use from these social media with their U.S. counterparts. Part II compares the contracting practices of Facebook, Twitter, and Match.com to their Chinese equivalents. The core finding is that U.S. social media providers use terms of use to reduce their liability and protect their rights to the maximum. China social media providers rarely foreclose consumer rights and remedies in their terms of use but do include clauses that forbid user conduct that incites racial, ethnic, or religious disharmony or otherwise harms national stability.

Part III contrasts the terms of use of twenty-five of America’s largest and most popular social media sites’ terms of use with terms devised by the twenty-five largest Chinese social media providers. U.S. social media sites construct fine print boilerplate that include one-sided warranty disclaimers, caps on damages, mandatory arbitration and anti-class action waivers – provisions that are rarely found in the Chinese sites. Chinese social media terms of use frequently violate Western rights to free expression. We explore the doctrinal basis underlying these diametrically opposed mass-market agreements by comparing U.S. to Chinese law. The largest social media providers in both the United States and China have global ambitions and thus must devise user agreements that harmonize with the laws and policies of other nations if they are to avoid serious legal and cultural clashes.


Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World

Lyrissa Barnett Lidsky



RoNell Andersen Jones


Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World


Social-media libel cases require courts to map existing defamation doctrines onto social-media fact patterns in ways that create adequate breathing space for expression without licensing character assassination. This Article explores these challenges by investigating developments involving two important constitutional doctrines — the so-called opinion privilege, which protects statements that are unverifiable or cannot be regarded as stating actual facts about a person, and the actual malice rule, which requires defamation plaintiffs who are public officials or public figures to prove that the defendant made a defamatory statement with knowledge of, or reckless disregard for, its falsity. Given the critical role these two constitutional doctrines play in protecting free expression, it is especially crucial that courts apply them in social-media cases with due regard for the unique aspects of the medium. This article’s analysis of early social-media cases reveals that many — though by no means all — courts addressing these cases appreciate that social media are different than the media that preceded them. However, some of these courts have floundered in adapting constitutional doctrines. The Article addresses the most difficult new issues faced by courts and offers specific prescriptions for adapting the opinion privilege and actual malice rule to social media. It recommends that the opinion privilege be applied based on a thorough understanding of both the internal and external contexts of social-media expression and that this broad reading of the opinion privilege be offset by a narrow reading of actual malice in cases involving delusional or vengeful social-media speakers.


Privacy, Trust, and the Propensity to Disclose

Ari Waldman


Privacy, Trust, and the Propensity to Disclose


In a data-driven world, trust, sharing, and privacy go hand in hand. Using primary empirical research of online social network users, this paper argues that particular social trust — a resource of social capital among individuals concerning their expectations about the future behavior of others — may be both a source of the trust we place in the platforms on which we share and an important determinant in our propensity to share personal information on those websites. It suggests that sharing depends on context, generally, and on specific contexts of social embeddedness, value-sharing, and trust in others. This paper, therefore, seeks to fill an important gap in the legal, sociological, and marketing literature on what makes people share personal information online.

This argument is relevant to lawyers and the legal academy, as well as online businesses. Since online sharing makes targeted behavioral advertising possible, factors that encourage such sharing are of keen interest to businesses, marketers, and advertisers. Targeted advertising and consumer tracking also raise privacy concerns. Furthermore, the notion that sharing occurs in contexts of trust should challenge the common judicial refrain that sharing personal information with others eviscerates privacy interests. Elsewhere, I have called this new way of understanding the right to privacy, “privacy as trust.”


A Substantial Disruption of Public Concern: Tinker, Bell v. Itawamba, and Internet Speech for High School Students

Jeff McAlpin

A Substantial Disruption of Public Concern: Tinker, Bell v. Itawamba, and Internet Speech for High School Students


Over fifty years ago, TINKER established a standard for protected on-campus speech, allowing students to protest the Vietnam war by wearing black armbands during school hours.

Fast-forward to the twenty-first century, and concerns about smart phones, social media, and the Internet have resulted in application of the TINKER test to off-campus speech in most of the United States circuit Courts of Appeal, with some dissent in the Third Circuit. The instant case originates in rural northern Mississippi and made its way to the Fifth Circuit, where an en banc decision upheld a school board’s punishment of a student for a YouTube video, composed off-campus, full of violent rhetoric and allegations of teacher-on-student sexual impropriety. The majority of the panel of judges found that the school district’s policy banning conduct that threatens, harasses, or intimidates was constitutional, using TINKER to analyze the conduct. Originally a three-judge panel issued an opposite ruling that the student’s speech was protected and TINKER did not extend off-campus.

There is disagreement in the intermediate courts over when and where TINKER applies. The current climate in public schools, where use of technology is encouraged yet boundaries and norms are constantly evolving, beckons for a new, consistently-applied standard for high school student speech that takes the existence of a new online forum into account. This conflict should be resolved by the Supreme Court. TINKER is overdue for an update.