Brian D. Wassom is a commercial litigation attorney and a partner at Honigman Miller Schwartz and Cohn LLP in Detroit, Mich. He practices intellectual property and media law, and also authors a blog on the law of social and emerging media at wassom.com.
2011 saw a big jump in lawsuits and court decisions stemming from social media activity. As more of our social and commercial interactions move into the online social space, we can expect this trend to continue — with new law being made in the process. Here are five ways that social media law is likely to evolve over the next year.
1. Facebook Litigation Brings New Attention to the Right of Publicity
Stop any three random people on the street and ask them what the “right of publicity” is. Chances are you’ll get answers ranging from “a Beastie Boys song” to “the right to be famous for 15 minutes.” In reality, it’s the legal right to control the commercial use of your personal likeness — a form of intellectual property that varies from state to state, and isn’t very well understood.
But that could soon change. On December 16, 2011, a federal judge refused to dismiss a class action lawsuitagainst Facebook. The complaint challenges Facebook’s practice of running “Sponsored Story” ads that include the names of the user’s friends who like that ad. The plaintiffs claim that this amounts to a “commercial appropriation” of the friends’ likenesses.
This lawsuit hasn’t yet been decided on the merits, and other courts have rejected similar claims. But Facebook isn’t the only social media site that lets you know what your friends are doing. Indeed, the very premise of social media is sharing information about individuals. You can bet, therefore, that we’ll see more social media users attempting to use the Right of Publicity to control how their personal likeness and information gets used.
2. Better Guidance on “Concerted Activity”
The National Labor Relations Board dropped a bombshell on employers this year by taking dozens of them to court for firing employees based on their social media posts. Before then, employers had been justifiably confident that they could terminate employees who posted angry, often profane rants against their bosses and co-workers for the entire world to see. Not so anymore. In several cases, the NLRB has deemed such content “concerted activity” between employees intended to improve their workplace conditions — actions that are protected by federal labor laws.
Many of these cases have settled. A few have recently been decided by administrative law judges within the NLRB. In 2012, however, we’re likely to see at least some of these disputes decided by full-fledged federal courts, which should help further clarify for employers and employees alike exactly where the lines are. The NLRB itself took a step in that direction in August 2011, when it released a 24-page memo (PDF) summarizing all of its then-current social media cases, and the reasoning behind them.
3. Standardized Privacy Rules
Facebook also made the legal news in November of this year by agreeing to submit to audits of its privacy practices by the Federal Trade Commission for the next 20 years. Whatever standards the FTC chooses to hold Facebook to, chances are good that other social media sites will voluntarily toe that line as well, for fear of also being subjected to government scrutiny. Combine that with the bevy of privacy-related bills pending before Congress and the case about GPS and geo-location privacy currently pending before the U.S. Supreme Court, and the time seems ripe for some order to begin emerging from the chaos that online privacy law is currently in.
4. More Use of Social Media Evidence in Courts
Lawyers have woken up to the treasure trove of evidence that social media offers them. If you’re a witness or juror in a lawsuit, expect a junior lawyer or paralegal to be scanning your social media profiles for anything that might impeach your credibility. If your company is a party in a lawsuit, you can bet that the other side has already checked your official social media sites — and those of your key employees — for damaging admissions. This trend has already started, and you can bet it will only pick up speed in 2012.
At the same time, courts are becoming more savvy in how they treat this evidence. In April 2011, for example, Maryland’s highest court reversed a criminal conviction in a case where one of the key pieces of evidence was a MySpace post that appeared to be from the defendant’s girlfriend. But the prosecutor had done nothing to authenticate the post, and the court — aware of how easy it is to impersonate someone online — laid down some basic principles for proving the reliability of social media evidence. Other courts have since followed suit.
5. No Brightlines to Govern Students’ Use of Social Media
One of the most actively litigated issues in social media law right now is the question of when public schools can discipline students for what they write online. Is the post punishable behavior, or is it free speech protected by the First Amendment?
Supreme Court precedent currently says that student speech can be punished when it causes a “substantial disruption” in the classroom. This guideline was foggy enough before the advent of social media. Now, it’s anyone’s guess as to when a fake profile mocking a high school principal, or snarky comments about a fellow student, can be said to cause a “substantial disruption” in the school environment — especially since the posts are usually made outside school property. Federal and state courts across the country have decided several of these cases already, with no clear standard emerging. In all likelihood, that brightline standard will continue to be elusive until the Supreme Court takes up the issue — which is unlikely to happen as early as 2012.