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Will I Be the Next Hashtag: Can the Right of Publicity and / or Privacy Protect Those Killed Extralegally from (Internet) Infamy?

Deidre A. Keller

DeidreFrancis

Will I Be the Next Hashtag: Can the Right of Publicity and / or Privacy Protect Those Killed Extralegally from (Internet) Infamy?

Abstract

Social media has become an important site for organizing and resistance in the 21st Century. But, what happens when the family of a child killed by police wishes to keep that child’s name from becoming the next viral hashtag? The 2017 death of Jordan Edwards at the hands of a Balch Spring, Texas police officer begs precisely this question. Jordan is, of course, one of many black boys killed extralegally, the most famous of whom is, perhaps, Emmett Till. At Emmett’s funeral his mother, Mamie Till, made the extraordinary decision to have her son’s casket open so that the world could see what the lynch mob had done to him. This decision has been hailed as heroic and instrumental in the nascent Civil Rights’ Movement. Not incidentally, the photographs taken of Emmett’s badly mangled face were recently at the center of a controversy in which a white artist utilized those images to create a painting that hung in the Whitney Museum. That controversy begs the same question presented by Jordan Edwards’ family’s choice to not immediately offer their son up as a martyr: what in the law might the family use to protect their slain child’s name and likeness from unauthorized use? The mechanisms ordinarily utilized to protect against unauthorized uses of names and likenesses are the right of publicity and the right to privacy. In this article, I’ll consider whether these mechanisms are up to the task of enforcing the wishes of Jordan Edward’s family or the next family that finds itself seeking privacy and dignity in the wake of horrible tragedy.

Law Students and Social Media

ABA Law Students and Social Media

Law Students and Social Media

Here is an article that I recently wrote for the ABA in which I encourage law students to proactively use social media.  While I acknowledge the potential pitfalls, I think they are outweighed by the benefits to students.

ABAforlawstudents.com: Law students and social media: Do they mix?

Prosecutors and Social Media

selyem

seylem

Prosecutors and Social Media

Here is the latest example of a prosecutor, Michael Selyem, using a personal social media account to make derogatory comments about public officials and ethnic/racial groups. In this case, the target of Mr. Selyem’s social media posts was Rep. Maxine Waters (D-Calif.), former first lady Michelle Obama, immigrants, and Mexicans.

With respect to Congresswoman Waters Mr. Selyem wrote

“Being a loudmouthed c#nt in the ghetto you would think someone would have shot this bitch by now”

The prosecutor has been placed on Administrative Leave.  Unfortunately, this was not the first prosecutor nor will it be the last to make inappropriate comments on social media.

To read more about this story go here.

Facebook and Censorship

Facebook

Facebook and Censorship

Here is an example of the collateral damage that occurs with censorship conducted by social media platforms.  In this case, it was the Declaration of Independence, which contains the following language:

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions

Fortunately, Facebook was ably to quickly rectify its mistake.

LATimes.com: Facebook censored a post for ‘hate speech.’ It was the Declaration of Independence

Yelp Not Required to Remove Defamatory Review

yelp

Yelp Not Required to Remove Defamatory Review

In Hassell v. Bird, the California Supreme Court, in a 4-3 ruling, reversed a lower court decision finding that Yelp, an online review site, could not be required to remove a defamatory review of an attorney.

To read a very thorough explanation of the case go here.

Remaining Anonymous on Instagram

instgram

Remaining Anonymous on Instagram

As the article below explains, Diet Madison Avenue, an anonymous Instagram account was created in October of last year in order to urge those in the advertising field to send stories of harassment.  The account, which is now defunct, published the names of more than a dozen alleged harassers to include Ralph Watson, who subsequently lost his job after being portrayed as a sexual predator on the site.

In May of this year, Mr. Watson, who claims that he became unemployable after his name appeared on Diet Madison Avenue, brought a defamation claim against the operators of Diet Madison Avenue.

One of the initial challenges for Mr. Watson will be determining the identity of those operating Diet Madison Avenue.  States around the country take various approaches to online unmasking.  In determining whether to unmask or identify online users and operators courts generally examine the plaintiff’s likelihood of success on the underlying claim.  In this case, it appears that Mr. Watson has a fairly strong claim.

To read more about this case go here.

Twitter and Spam Accounts

twitter

Twitter and Spam Accounts

The article below discusses efforts by Twitter to limit spam accounts on its platform.  It appears that Twitter is now requiring all new users to verify an email address or a phone number.  While most applaud Twitter’s efforts, some say it hasn’t gone far enough because it fails to address old bot accounts.  One suggestion offered in the article is for marketers to stop blindly accepting influencers based on the number of followers.

Digiday.com: Marketers debate whether Twitter’s new user policy will stop influencer fraud