Suppose a company wants to engage young people through social media, building its brand among thousands of potential customers in an effective and relatively inexpensive manner. A photographer has snapped a picture of a popular celebrity leaving the company’s store, shopping bags with its logo in hand. Can the company share the photo on social media?
This paper provides insight into how social media posts of celebrities can generate Lanham Act and right of publicity liability. It focuses on how tools unique to social media can influence the viability of these claims. Usernames and hashtags can increase the threat of liability. On the other hand, sharing and the resulting statistics can be used to bolster a First Amendment defense. Social media represents a valuable and growing way for companies to engage consumers, but these connectivity tools must be used wisely.
Hawaii May Join Other States in Restricting Employer Access to Employee Social Media Accounts
The Hawaii House recently passed HB 1739. This bill, among other things, tells employers that they “shall not require, request, or coerce an employee or potential employee to disclose the username, password, or any other information for the purpose of accessing the employee or potential employee’s personal account.” The bill is now on its way to the Hawaii Senate.
To read more about the bill go here.
Discovery Request Seeking 7 Years of Facebook Records Deemed Too Broad
In Maochun Ye v. Cliff Viessman Inc., et al., No. 14 C 1531, U.S. Magistrate Judge Jeffrey T. Gilbert ruled that the defendants’ discovery request for plaintiff’s Facebook archives for the past seven years was too broad. The judge conceded “that defendants are seeking content relating to damage issues that are at times hard to ascertain, such as the grief, sorrow and mental suffering of the decedent’s next of kin following her death.” However, the judge ultimately determined that defendants have failed to tailor their request “to relevant content only.”
To read more about this case go here.
In this case plaintiffs were victims of sex trafficking that occurred via advertisements on Backpage.com. The appellate court affirmed the trial court’s dismissal of this action finding that operating a website through a meretricious business model is not enough to strip away the Communications Decency Act’s (CDA) protections for internet publishers. This case, among other things, illustrates the tension between the Communications Decency Act of 1996 (CDA), 47 U.S.C. section 230, and the Trafficking Victims Protection Re-authorization Act of 2008 (TVPRA),18 U.S.C. sections 1591 and 1595.
Employer Liability for Employee Facebook Posts (Howard v. Hertz)
Howard v. Hertz addresses one of the growing concerns of employers across the country. Can they be held liable for the social media posts of their employees? In the case of Howard, the answer was no. However, in the future, it is very likely that some companies will be held liable for the social media activities of their employees.
In Howard, several employees of Hertz had a discussion about a customer on Facebook. This discussion included racially charged statements and comments about the customer’s declined credit card. Here is a sample of the Facebook discussion that occurred among the Hertz employees.
[Employee A posted the following on his Facebook page]: I seen Maurice’s bougie ass walking kahului beach road . . . n*** please!
[Employee A then describes the plaintiff as follows]: a broke ass faka who act like he get planny money ..
[Co-worker:] run that faka over!!! lol.
[Employee A] i was tempted too, but nah, i had a white car, neva like u guys scrub da blood off.
[Co-worker comment:] What no BMW for h today?
[Employee A] now he knows we got mercedes, he’s gunna drive those. It’s too bad his CC declines all the time.
[Co-worker:] Hahahaha . . . he still renting huh LOL.
[Another co-worker:] No more Troy his favorite boy though! Sorry Troy!
Upon learning about the posts, the customer, Maurice Howard, sued Hertz alleging negligent supervision, negligent retention, and negligent training by the employer. Howard also brought claims against the individual employees who posted the comments. Hertz moved to dismiss the case arguing that the customer failed to allege any basis to hold it responsible for the employees’ online statements. While Howard’s claim survived the motion to dismiss, it did not survive summary judgment.
At the summary judgment stage, the court, in examining the traditional negligence factors: (1) duty, (2) breach of duty, (3) causation, and (4) damages found that “Howard’s failure to establish the duty element is fatal to each claim.” More specifically, the court found that “Howard has not demonstrated the existence of a genuine issue of material that…[the plaintiffs] foresaw or should have foreseen the danger posed by…[Employee A] and should have been more closely supervising his Facebook use earlier or should have fired him earlier.” According to the opinion, the supervisor of Employee A did not use Facebook nor was she aware of any prior derogatory or crude posts made by Employee A.
As for the negligent training claim, the court found that “[e]ven if Hertz was under a duty to train…[Employee A] and others to prevent the harm allegedly suffered by Howard, Howard provides no evidence that such a duty was breached. According to…[the manager], she instructed…[Employee A] in 2009 or 2010 not to post anything related to Hertz on Facebook, and…[Employee A] told…[the manager] he understood and would not post anything in the future.”