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Posts Tagged ‘Facebook’

If You Don’t Have Anything Nice To Say….You Probably Shouldn’t Post It!

Posted on: August 22nd, 2018

By: Shaun DaughertySamantha Skolnick

Mothers all over the world have admonished their children: “if you don’t have anything nice to say, don’t say anything at all.”  It may lose something when translated into some obscure dialects, but the sentiment was still there.  Now that we live in the age of technology, it appears that the old saying could use a facelift.  “If you don’t have anything nice to say, you should not type it anywhere on the internet.”  That is especially true if you are criticizing doctors and hospitals.

A wave of litigation has been emerging involving doctors and hospitals, but in these instances, they are not the targets, they are the plaintiffs.  Doctors and hospitals are starting to sue their patients for negative reviews on social media. The most recent example earned itself an article in USA Today where retired Colonel David Antoon had to pay $100 to settle felony charges for emailing his surgeon articles that the doctor found threatening as well as posting a list on Yelp of the surgeries the urologist had scheduled for the same time as his own.  Antoon alleged that his surgery left him incontinent and impotent and he had tried to appeal to the court of public opinion.

In other news, a Cleveland physician sued a former patient for defamation after the negative internet reviews of her doctor reached the level of deliberately false and defamatory statements. The case may be headed to trial in August. Close by, a Michigan hospital sued three relatives for Facebook posts and picketing which amounted to defamation, tortious interference and invasion of privacy. The family claimed that the hospital had mistreated their deceased grandmother.

We live in a country that ensures freedom of speech, and that right is exercised more than ever with the advent of social media and an ever-growing audience of participants.  However, there can be consequences if the speech is inaccurate or defamatory in nature.  While some attorneys, like Steve Hyman, cite the law in stating that “[t]ruth is an absolute defense. If you do that and don’t make a broader conclusion that they’re running a scam factory then you can write a truthful review that ‘I had a bad time with this doctor.’”  Other commentators, like Evan Mascagni from the Public Participation Project, tout avoiding broad generalizations, “If you’re going to make a factual assertion, be able to back that up and prove that fact.” That is defense against defamation claims 101.

The world of non-confrontational criticism on social medial makes it easy and tempting to post an emotionally fueled rant.  But beware!  You want to avoid a situation like that of Michelle Levine who has spent nearly $20,000 defending herself against a suit filed by her Gynecologist over defamation, libel, and emotional distress. The 24-hour rule is still a viable alternative to hitting “send” or “post.”  Type it out, let it sit and ruminate for a bit, and then decided if you are going to post the negative comments for the world to see.  Some opinions are worth sharing, or you may decide…. don’t say anything at all.

If you have any questions or would like more information please contact Shaun Daugherty at [email protected] or Samantha Skolnick at [email protected].

Facebook and Twitter: More Transparency for Political Ads

Posted on: June 4th, 2018

By: Amy Bender

In the wake of the alleged Russian interference with the U.S. presidential election through targeted Facebook ads, both Facebook and Twitter now have imposed conditions for political campaign advertisements. Since there currently are no legal requirements for posting political content on private social media platforms, the platforms have the freedom – and, some say, the responsibility – to create their own policies in order to regulate the content delivered to their users. Facebook and Instagram (which Facebook owns) now require that political ads be labeled with information such as who funded the ad, the campaign budget, the number of viewers, and their demographics. The information also will be stored in a searchable archive. Twitter will require advertisers of political campaigns for federal elections to identify themselves and prove they are located in the U.S. Further, it will not allow foreign nationals to target political ads to U.S. residents. Both platforms have cited increased transparency as the basis for these changes. Facebook also has been under scrutiny since the Cambridge Analytica/user data breach incident, as we reported here.

It remains to be seen if these measures will help regulate political content and if more social media platforms will follow suit.

If you have any questions or would like more information, please contact Amy Bender at [email protected].

Countries Around the World Are Investigating Facebook’s Cambridge Analytica Event

Posted on: April 26th, 2018

By: Allen E. Sattler

On March 18, 2018, news broke of the Cambridge Analytica event where the data of an estimated 87 million Facebook users was disclosed to the UK-based political consulting firm.  The breach of user data resulted in several U.S. investigations, including by Congress and by the Federal Trade Commission (“FTC”).  Facebook entered into a consent decree with the FTC in 2011, where Facebook agreed to never make deceptive claims concerning users’ privacy and to obtain users’ informed consent before changing the way in which it shares their data.  The FTC is investigating whether Facebook violated the terms of this agreement which carries a possible $40,000 per-violation fine.

On April 10 and 11, Mark Zuckerberg appeared before Congress where he testified that Facebook failed to protect its users’ data and that Facebook “didn’t take a broad enough view” of its responsibility in ensuring the privacy of its users following its initial discovery of the Cambridge Analytica event.  He also accepted personal responsibility for the matter as the company’s founder and CEO.

What might have been lost in the flurry of domestic activity is the amount of scrutiny Facebook is receiving by nations around the globe.  This breach involved users from many countries, with over 1 million affected users in each of four different countries.

The European Union launched an investigation into Facebook on March 19, and the United Kingdom and Australia quickly followed.  Under Australian privacy laws, the government has the authority to issue fines against Facebook of up to $1.6 million if it determines that Facebook violated those laws.

Countries of southeast Asia soon followed with investigations of their own.  Indonesia, which is home to over 115 million Facebook users, 1 million of whom were affected by this breach, launched an investigation on April 6.  Under Indonesian law, the government can assess fines against Facebook representatives personally of up to $870,000.  Singapore has opened an investigation as well, where it has already questioned Facebook executives located in their country.

The Philippines announced its investigation into Facebook on April 13.  The county was rated as the biggest user of social media several years running.  Research indicates that Filipinos spend almost four hours per day on various social media platforms.   This breach affected nearly 1.2 million Filipinos, and news reports indicate that Cambridge Analytica might have helped President Rodrigo Duterte in his successful 2016 campaign.  The event therefore has enormous significance to Filipinos.

On Friday, April 20th, Germany became the latest country to open an official investigation into the Facebook.  Germany’s data privacy regulator said fines could be levied against Facebook in the amount of 300,000 euros ($366,000).

Facebook had revenues of more than $40 billion last year, so the fines that each country might assess against the company seem relatively insignificant.  The investigations launched against Facebook can nevertheless have a big impact on the company and on the entire industry.  This event has garnered the attention of countries around the world, and it has already led to a greater awareness of privacy concerns that exist on social media platforms.

If you have any questions or would like more information, please contact Allen Sattler at [email protected].

 

Are Your Facebook Job Postings Violating the ADEA

Posted on: February 8th, 2018

By: Brenton S. Bean

So say putative class action plaintiffs in the Northern District of California.  See Communications Workers of America et al v. T-Mobile US, Inc., et al, Case No. 5:17-cv-7232 (N.D. Ca), filed Dec. 20, 2017.  Plaintiffs assert that Facebook has become the modern employment agency, providing not only a platform, but also data and strategies to help employers find candidates.  The lawsuit alleges that Facebook allows, and in some instances requires, a target audience be defined, which includes age restrictions.  In addition, Facebook uses its own massive database and algorithms to determine which users will see the ads, often on the basis of age.  This practice of “microtargeting” advertisements for employment discriminates against older workers, plaintiffs say.

Shortly before the lawsuit was filed, the New York Times ran an article regarding Facebook advertising and age discrimination.  Facebook and other social media sites have recently become more popular means by which employers advertise for job openings.  The Times story indicates many companies use Facebook’s ability to target its users by demographics, such as age, and therefore have discriminated against job applicants by restricting the scope of their Facebook ads to younger Facebook users.  Interestingly, that use of an age restriction is not always limited to cases where the advertiser requests such a restriction.  Facebook also takes the parameters identified by the employer and uses its own statistical methodologies to target the ad.  That means age restrictions may have been used in advertisements without the advertiser’s knowledge, according to the claim.

The scope of the case is potentially enormous.  First, the putative class size is immense.  The class as defined includes all Facebook users nationwide who are age 40 and older, who are interested in receiving employment-related advertisements or recruiting from employers via Facebook, and who were excluded from receiving an ad because of their age.  Second, the complaint names not only four defendant employers, but also a defendant class of employers and employment agencies.  Plaintiffs alleged there may be a thousand or more members of the defendant class, which could include every employer that has used age-limited Facebook ads.  In addition to the federal ADEA claim (which is expected to be amended once the charge process runs its course), plaintiffs have asserted claims under state law for discriminatory advertising and disparate impact recruiting and hiring.

While the named defendants are primarily large companies, the putative defendant class may also include many smaller employers.  Whether potentially implicated or not, companies are advised to review their job placement advertising.  At this juncture, it is too early to assess the class’s chances or the merits, either under the ADEA or the articulated state law claims.  We will monitor this matter closely.

If you have any questions or would like more information, please contact Brenton Bean at [email protected].

What Does Your Video Watching Behavior Say About You?

Posted on: December 18th, 2017

By: Jonathan Romvary

A federal court recently determined that the sharing of an individual’s device identification number and the videos watched does not violate federal privacy laws. In Eichenberger v. ESPN, Inc. , 2017 BL 427074, 9th Cir., No. 15-35449 (Nov. 29, 2017), the Ninth Circuit held that an individual’s Roku Inc. device serial number and a list of the ESPN videos watched does not qualify as personally identifiable information (PII) under the Video Privacy Protection Act (VPPA) such that ESPN’s sharing of the information with a third party did not violate VPPA protections.

What did the Court hold?

The three-judge panel held that while the plaintiff had standing under the Court’s Spokeo ruling, he could not continue with his suit because the shared information was not personally identifiable under the VPPA. The panel adopted and expanded the Third Circuit’s 2016 Viacom ruling that information can only be considered personally identifiable if an ordinary person could use it to pinpoint a specific individual’s video-watching behavior. Here, an individual would require the data to be combined with other personal information that ESPN never shared or possessed.

Why is this important?

The impact of the Ninth Circuit’s ruling may be far reaching. Nowadays, technology service providers and app developers are moving away from identifying their users by their names. They now utilize a variety of alphanumeric identifiers to identify their users, whether it is the unique identification number of the user’s device (see ESPN) or a unique user account identification number. Without more, the average user is unable to identify the person who watched. As one observer noted, this ruling may pave the way for companies such as Hulu, Netflix, Google and Facebook to optimize their user experience to provide more targeted marketing without violating federal statute.

In recent years, plaintiffs have filed a serious of class actions alleging violations of the VPPA against companies such as Fandango, Blockbuster, Overstock.com, Gamefly, Redbox, Best Buy, Netflix, and Hulu. The attractiveness of these suits is likely because plaintiffs can argue that violations are punishable by $2,500 in statutory damages per violation. However, as this court’s ruling indicates, every technological advancement away from the brick and mortar video rental stores away will make it harder for a plaintiff to sustain a successful claim.

However, the impact should also not be overstated. Despite this win for technology providers in the Ninth Circuit, there remains the matter of Yershov v. Gannett Satellite Information Network, Inc., No. 15-1719 (1st Cir. Apr. 29, 2016) which held that the disclosure of an individual’s viewing data along with the device’s unique identifier and device’s GPS information constituted PII such that the disclosure may violate the VPPA. The fact remains that there is still much uncertainty about the scope and viability of the VPPA.

If you have any questions or would like more information on this developing issue please contact Jonathan Romvary at [email protected].