On Second Thought…Delete My Post!

Imagine having the right to demand that websites you have posted on take down the content or information that you later regret having posted.  California is on its way to enacting such a law, albeit for the benefit of minors only.

 

California filed what is referred to as an “eraser” law with its Secretary of State on September 23^rd.  If Governor Jerry Brown does not veto the bill, which he apparently has taken no position on, it will go into effect as of January 1, 2015.  The New York Times quoted James Steyer, the chief executive of Common Sense Media, an advocacy group that supported the bill, as stating, “Kids and teenagers often self-reveal before they self-reflect…It’s a very important milestone.”

The bill, Chapter 21 of Division 8 of California’s Business and Professional Code would require “the operator of an Internet Web site, online service, online application, or mobile application to permit a minor, who is a registered user of the operator’s Internet Web site, online service, online application, or mobile application, to remove, or to request and obtain removal of, content or information posted on the operator’s Internet Web site, service, or application by the minor, unless the content or information was posted by a 3rd party, any other provision of state or federal law requires the operator or 3rd party to maintain the content or information, or the operator anonymizes the content or information.”  Moreover, the bill would require the site to notify the minor that the minor has such a right.

Concerns about the legislation, identified in Somini Segupta’s piece in the New York Times, include the fact that companies will be able to collect more information on minors as they would need to identify their age and presence in California and, further, that the passage of similar laws in other states could create a hodgepodge of varied laws with varied requirements throughout the nation.  This latter concern, however, is seemingly endemic of the U.S.’s approach to privacy protection in general, which tends to be ad hoc on a state level and industry specific on the federal level.

There has been ongoing pressure in Europe for “right to-be-forgotten” legislation, which differs from California’s legislation in that it would provide for a similar “eraser” right for all Europeans regardless of age.

You can find the proposed California legislation here.  

Turns Out “Like”ing Something on Facebook Constitutes Actual Speech

The Fourth Circuit Court of Appeals ruled today that “Liking” something on Facebook constitutes protected speech.

In an important, but hardly surprising, decision, the court reversed a ruling by federal district judge, Raymond A. Jackson. In a decision that must have upset admirers of symbolic and actual speech everywhere, Judge Jackson ruled that a Facebook “like” was “insufficient speech to merit constitutional protection.” The lower court judge distinguished the Facebook “like” by noting that in other opinions recognizing protected speech on Facebook “actual statements” were used.”  Regardless, if one should ever come upon a sign while driving that simply says “stop” assume it is an actual statement.

The case stems from a lawsuit brought by a group of deputy sheriffs in Hampton, Virginia, one of whom, Daniel Ray Carter, Jr., claimed to have been fired from his job because he had “liked” the individual running in a campaign against the current sheriff (i.e. his boss). The Fourth Circuit’s Chief Judge William Byrd Traxler writes, “Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement.”  Chief Judge Traxler also noted that “Carter’s speech was political speech, which is entitled to the highest level of protection.”

The case is Bland v. Roberts.  You can read the 81 page decision in its entirety here.

State Social Media Privacy Legislation Now an Issue for Securities Regulators

The Financial Services Institute, which represents individual financial services firms and individual financial advisors, warned that 70 social media bills introduced throughout the U.S. could conflict with Finra advisor regulations.

An article in Financial Advisor magazine said that a spokesman for the North American Securities Administrators Association expressed concern that privacy provisions in the bills might interfere with supervisory and record-keeping responsibilities of advisors under state and federal securities laws and regulations.

Recall that many states have started to pass legislation restricting employers’ ability to acquire employee passwords or gain other means of access to employee social media accounts.  In his Financial Advisor article, Ted Knutson reports that Finra has been in contact with 12 states about the legislation. In the organization’s letter to the Colorado legislature, it noted that “the objective may be accomplished through a specific exemption for broker-dealers whose employees use a personal account or service for business communications.”

While courts continue to deal with the ongoing challenge of applying traditional legal doctrine to social media platforms, it is also worth noting how regulators must now contemplate not only social media itself but the way both current and future laws passed in response to social media will impact their own regulations.

Facebook Posts Lead to Judge Tossing Verdict

Facebook posts may have played a role in a Georgia judge throwing out a plaintiff's verdict.

The suit involved a claim brought by Michael Bowbliss, who suffered nerve damage as a result of a lab technician's failure to properly draw blood for a routine, insurance related blood test. The award, originally for 5.7 million dollars, was first reduced by State Court Judge Patsy Porter to 4 million dollars, and then further reduced after the judge questioned Bowbliss's spouse's award for consortium damages, which exceeded Bowbliss's award for his original injury.  However, the Georgia judge eventually eliminated the entire verdict as a sanction against the couple for perpetrating a fraud upon the court.  Evidence, including the couple's Facebook posts, seemed to indicate that the couple had been in a troubled marriage during the time Dee Anna Bowbliss was seeking loss of consortium damages.  The attorneys for the defense claimed the marriage itself was a sham and that the Bowbliss's intention was to divorce after the completion of the trial. Moreover, the plaintiff's Facebook posts indicated that his injuries may not have been as severe as professed to the court.  One such post included, "can not go to gym til lawsuit over...due to it not looking right for me to be working out...and saying I have a bad arm."  With respect to the defense attorney's "sham marriage" assertion, one of the plaintiff's other posts read ""Judge is f[**]king on my case...dee and I aren't divorced yet because of piece of s[**]t judge and case."

Although the attorneys for defendant, Quick-Med, Inc. and its parent Quest Diagnostics, requested that the suit be dismissed with prejudice, Judge Porter refused.  The plaintiff's attorneys have already refiled the case.

Read more about this case in The Daily Report.