Social Network
Content
Social Netw Networking orking Blogging B logging and Social Networking: Current Legal Issues By Cydney Tune and Marley Degner
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ome courts are enthusiastic and open-minded about the growth of communication over the Internet, viewing the Internet as an ideal medium for free speech that encourages others to focus on the message rather than on the wealth or appearance of the speaker. Other courts are extremely suspicious of the Internet and everything they nd there. The Internet has opened new channels of communication and self-expression . . . Countless individualss use message boards, date matching sites, individual interactive social networks, blog hosting services and video sharing Web sites to make themselves
posing new and complex legal questions. This article ar ticle will explore current legal issues related to blogging and social networking, including: 1. Section S ection 230(c) of the Communications Communicatio ns Decency Act; 2. Section 512(c) of the Digital Millennium Copyright Act; 3. Employment; 4. The T he First Amendment Amendment;;
and their ideas enable visible the to the world. While intermediaries user-driven digital such age, they also create new legal problems. 1
5. Whether Whethe r bloggers are jour journalists nalists;; 6. Privacy; Pr ivacy; and
The internet . . . is a major modern tool of free speech and freedom both here and abroad. 2
7. Attorney Attor ney ethics.
Definitions While some look to the Internet Inter net as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation . . . [A]nyone can put anything on the Internet. 3 The law always seems to t o lag two steps behind b ehind technology tec hnology,, and everybody agrees that the growth of the Internet is
Blogs and social networking sites lack a clear denition, and courts that have tackled the task of dening them have either relied on dictionary denitions or have used general or vague denitions. The term “blog” is short for “Web log,” and a blog contains entries that are typically presented in reverse chronological order and are self-edited. Many blogs contain RSS feeds, which notify users when content is updated.
Cydney Tune practices in the San Francisco office of Pillsbury Winthrop Shaw Pittman LLP, where she leads the firm’s copyrights practice section and media & entertainment industry team. She represents and advises clients in a broad range of intellectual property issues and has extensive experience in complex litigation. Ms. Tune represents a variety of clients, including virtual world service providers, social networking Web sites, Internet companies and other companies that conduct business online, broadcasters, associations, and gaming companies, among others. The Daily Journal named Ms. Tune one of 2008’s Top 10 Copyright Lawyers in California, and she was recently voted by her peers as among the Best Lawyers in America in the entertainment law category. Marley Degner is an associate in the litigation department in the San Francisco office of Pillsbury Winthrop Shaw Pittman LLP. © 2009 Pillsbury Winthrop Shaw Pittman LLP.
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a blog being a type of online diary posted to a website . . . .4 A “blog: is an online personal journal with reections, comments, and often hyperlinks provided by the wr iter. iter.” ”5 MySpace.com is a “social networking web site” that allows its members to create online “proles,” which are individual web pages on which members post photographs, videos, and information about their lives and interests. The idea of online social networking is that members will use their online proles to become part of an online community of people with common interests.6
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Social Netw Networking orking The Communicat The Communications ions Decency Act Act Section 230 of the Communications Decency Act (CDA) immunizes blogs and social networking sites from liability resulting from the publication of information provided by third parties. Web sites that, in whole or in part, create or develop contested information are deemed “information content providers” under the CDA and do not benet from the protection of § 230. A Web site may select material for publication, have the power to edit or remove that material, mater ial, and may even even make minor edits to t o the material without losing statutory protection. But, according to a recent Ninth Circuit decision, a Web site can neither explicitly request defamatory or otherwise illegal material from third parties nor channel or categorize the information that it receives from third parties without losing § 230 immunity. The CDA is most often invoked in the defamation defama tion context, but several courts have expanded it to cover other types of claims, such as negligence. A number of courts have weighed protection:in on the scope and applicability of CDA • Fair Housing Council of San Fernando Valley v. Roommates.com, LLC .7 A local fair housing council sued the operator of Roommates.com Roommates.com , an online roommate matching Web site, alleging that the operator violated the Fair Housing Act and state laws. A three judge judg e panel of the Ninth Circuit found that Roommates.com was not protected by the CDA when it asked questions to create member proles and when it channeled the information based on members’ answers to the questions but that it was immune in regard to the “Additional Comments” section of the site, because it did not solicit any particular information for that section. The test for determining whether an interactive computer service is responsible in part for creating or developing information under § 230(c) of the CDA is whether it (1) categorizes, channels, and limits the distribution of information, thus creating another layer (meta-layer) of information and (2) whether it actively prompts, encourages, or solicits the unlawful information. The court opined that a Web site operator would be liable if users provided defamatory, private, or otherwise unlawful information in direct response to questions and prompts from the Web site. Upon rehearing en banc , the Ninth Circuit affi rmed the panel’s decision in pertinent part. 8 This opinion has created uncertainty for social networking sites that rely on § 230 to shield them from claims relating to content that their users create but that they categorize and channel to other users.
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• Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc. Inc. 9 A public interest consortium led suit against Craigslist for violations of the Fair Housing Act for allowing advertisements that indicated discriminatory preferences. While Judge Easterbrook writing for the court cour t affi rmed the trial tr ial court’s grant of defendant’s summary judgment, he stated that § 230(c)(1) does not grant immunity to anyone. Rather, § 230(c)(1) is denitional and removes online services such as Craigslist from the ranks of publishers and speakers for the purposes of substantive law. • Carafano v. Metrosplash.com, Inc. Inc.10 Carafano, an actress, brought an action against a commercial Internet dating service based on a third party’s submission of a false prole attributed to her that included her private contact information. infor mation.The court held in this 2003 case that Metrosplash was not an information infor mation content provider within the meaning of the CDA and that, even if it could be considered an a n information infor mation content provider, it was stillofentitled statutory immunity because the selection contenttowas left exclusively to the user and the third party’s answers to the questions were fairly non-responsive in that they were so sexually suggestive and included information not requested, such as Carafano’s personal contact information. The court explained that, under under § 230(c), so long as a third party par ty willingly provides the essential published content, the Web site operator receives full immunity regardless of the specic editing or selection process. This statement is at odds with the decision in Roommates. com , and in Roommates.com com Roommates.com , the Ninth Circuit repudiated the language of Carafano Carafano , which which suggested that an information content pro provider vider could never be liable for posting content provided by another. • Doe v. MySpace, Inc. Inc.11 The mother of a minor girl sued MySpace for negligence, gross negligence, fraud, and negligent misrepresentation after her daughter lied about her age on the site and was sexually assaulted by a 19-year-old boy that she met through the site. The court held that § 230(c) immunized MySpace and opined that to impose a duty on MySpace to conrm conr m or determine the age of each applicant would stop its business in its tracks. • Doe v. SexSearch.com SexSearch.com .12 A user of SexSearch.com SexSearch.com sued the dating service in both contract and tort after being introduced to an underage girl who claimed to be 18, resulting in a criminal prosecution for unlawful sex with a minor.The court held that § 230(c) barred both common law contract and tort claims, as well as a state statutory claim against SexSearch.com SexSearch.com . The
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Social Netw Networking orking aanalysis nalysis should focus on “whether the claim is directed toward tow ard the defendant in its publishing, editorial, and/ or screening capacities” and not on the form of the pleading. • DiMeo, DiMe o, III v. Max Max .13 One blogger, blogge r, DiMeo, sued another ano ther blogger, Max, for defamation based on six posts composed by third parties that appeared on Max’s blog’s message boards. The court held that § 230(c) barred the defamation claim, because Max did not “develop” the offensive posts when he merely selected them for publication and edited them. Smith .14 Smith sent an email to the modera• Batzel v. Smith tor of a museum security and stolen art listserv that stated his belief that Batzel owned paintings looted during WWII. Smith was unaware that the moderator would publish the email to the international listserv and a Web site, and Batzel sued Smith and the moderator for defamation. The panel majority held that, if a person who posted material the Internet “dev “developed” eloped” thatdefamatory material, that personon would become the information content provider and lose § 230 (c) immunity. It held that the moderator did not develop Smith’s email by editing portions of it and selecting it for publication.The court pointed out that § 230(c) has some troubling implications, because a service provider that cannot be held liable for posting a defamatory defamator y message may have little incentive to take such material down even even if informed of its defamatory defamator y nature. • Schneider v. Amazon.com, Inc. Inc. 15 An author brought an action against Amaz against Amazon.com on.com for for negligent misrepresentation, tortious interference, and breach of contract after Amazon had failed to remove allegedly defamatory reviews of the author’ author’ss work written by third parties. The court held that Amazon was immune under § 230(c). Amazon was not an information content provider pro vider even though Amazon had the r ight to edit or remove postings that violated published guidelines as well as a royalty-free right to use the book reviews. • Ben Ezra, Weinstein and Co., Inc. v. America Online, Inc. Inc. 16 The plaintiff corporation asserted claims for defamation and negligence against AOL. AOL published continuously updated stock quotation information based on information provided by two independent third parties. The court held that AOL was immune under § 230(c) and was not an information content provider even though AOL had informed the third parties of data errors and had removed erroneous data from the Web site after the information had been posted.
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• Blumenthal v. Drudge .17 White House employees brought a defamation action against aga inst Drudge and AOL when the Drudge Report claimed claimed that Blumenthal had abused his wife.The court held that AOL was immune under § 230(c), because the plaintiffs could provide no factual support for the assertion that AOL had some role in writing or editing the material in the Drudge Report . • Zeran v. America Online, Inc. Inc.18 Zeran sued AOL for negligence for failing to remove a false advertisement offering T-shirts featuring tasteless slogans related to the Oklahoma City bombing and instructing interested buyers to call him at home to place an order. The court held that AOL AOL was immune under § 230(c) against the claim that it had unreasonably delayed in removing the defamatory messages, refused to post retractions, and failed to screen for similar postings thereafter.The court cour t explained that the CD CDA A necessarily protects interactive computer services from liability even after they are notied of an the allegedly defamatory or threatening post, because unsupportable legal burden imposed by potential tort liability would undermine the CDA’s goal of promoting speech on the Internet. Inter net.
The Digital Millennium Copyright Act Section 512(c) of the Digital Dig ital Millennium Copyright Act (DMCA) limits liability for copyright infringement infri ngement from blogs and social networking sites (as well as all service providers) that allow users to post content, so long as the site has a mechanism in place that allows copyright owners to request the removal removal of infringing infring ing content. The site cannot receive nancial benet directly attributable to the infringing activity. YouTube and Google are currently defending multiple suits for copyright infringement and are asserting a DMCA defense. Some of the DMCA cases include: • The Football Association Premier League Ltd. v. YouTube, Inc. 19 Inc. Plaintiffs accuse YouTube and its corporate parent Google of engaging in massive copyright copyright infr ingement for nancial gain. They claim that allowing copyright holders to submit takedown notices pursuant to § 512(c) of the DMCA requesting removal of infringing infring ing material is meaningless, because it is impossible for a copyright holder to nd all instances of a copyrighted work that might appear on YouTube, and because YouTube users can readily repost infringing matter under different user and/or le names. • Viacom International, Inc. v. YouTube, Inc. Inc. 20 Viacom has sued YouTube and Google for copyright infringement,
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Social Netw Networking orking contributory copyright infringement, and vicarious copyright infringement. Viacom claims that the availability of a vast library of copyrighted works is the cornerstone of YouTube’s business plan and that YouT ouTube ube deliberately deliberately built up a library of infringing works to draw dr aw traffi c to its it s site.Viacom is asking ask ing for at least $1 billion in damages. YouTube claims that it has followed the law as set forth by the DMCA. Recently, the district court denied Viacom’s leave to amend to add a claim for punitive damages, thereby substantially reducing the amount at stake stake..21
result of an employee’s blogging or social networking activities.
• Perfect 10, Inc. v. Amazon.com, Inc. Inc.22 Perfect 10 sued Google and Amazon for infringing its copyrighted photographs of nude models, among other claims. The court concluded that Google’s use of Perfect 10’s thumbnail images was a fair use. The court also concluded that it was fair use when users linked to infringing Web sites and made automatic cache copies of those Web sites, because the caching was non-
Public Employe Employers rs A public employee’s free speech rights are more limited than the general public’s. The Supreme Court has established the Pickering-Connick Pickering-Connick test test for evaluating the protection afforded to speech by public employees. Public employees are not protected from discipline at work when they speak on matters of purely private pr ivate concern; the threshold evaluation from Connick v. Myers Myers23 is whether the employee was speaking on a matter of public concern. If an employee’s speech touches on a matter of public concern, courts then apply the balancing test from Pickering v. Board of Education Education24 to weigh the public employer’ emp loyer’ss legitimate leg itimate interest in delivering deliver ing effi cient government services against the employee’s interest as a citizen in commenting on a matter of public concern. If the expression causes workplace disruption, courts will often nd for the employer. Thus, if a public
commercial, transformative transfor mative, , and a minimal miniwork. mal impact on the potential market for thehad original The court specically did not address whether an entity that merely passively owns and manages an Internet bulletin board or similar system violates a copyright owner’s display and distribution rights when users post infringing works (the YouTube question).
employee blogssomething or posts messages on asubject social networking site about that is the of legitimate news interest, a court may protect the employee if the employer punishes the employee for it. But if the post disrupts the workplace, even if it was composed on the employee’s own time, the court may nd for the offended employer.
Employers A developing area of the law that implicates both blogging and social networking concerns employees who are punished for expressing themselves on the Internet both at work and on their own time.
Private Employ Employers ers Private employees empl oyees have have little recourse if they are red for what they write on blogs or social networking sites, because a private employer does not engage in state action. For instance, in 2004 Delta Airlines red a ight attendant for keeping a blog in which she posted provocative pictures of herself in her ight attendant uniform. The woman sued Delta, claiming that it had no corporate policy on employees and blogging. Private employers cannot re employees because of their membership in a protected class, for whistle blowing, or for certain union-related activities, however. A private employer must be careful not to re or discipline an employee for the contents of their blog if the employee blogs about their membership in a protected class or uses their blog to expose company misconduct or corruption. Employers should always be able to articulate a legitimate business reason for any adverse employment action taken as a
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• Stengle v. Office of Dispute Resolution. Resolution.25 Stengle survived a motion to dismiss led by the Pennsylvania Pennsylvania Department of Education. She alleged that she was red because of the content of her blog rather than because of the fact that she had a blog. She claimed that her speech touched on matters of public concern concer n and thus that she was red in violation of her First F irst Amendment rights. • San Diego v. Roe .26 Roe, a San Sa n Diego Di ego poli police ce offi o fficer, made a video of himself stripping off a police uniform unifor m and masturbating and sold it on the adults-only section of eBay. After his supervisor discovered his activities, he was dismissed from the police force. He brought a suit alleging that his termination violated his First Amendment rights. The Supreme Court held that the Pickering-Connick test Pickering-Connick test governed the case, that Roe had taken deliberate steps to link his videos to his police work in a way that was injurious to his employer, and that his expression did not qualify as a matter of public concern under any view of the public concern test. Thus he failed the threshold Connick Connick inquiry. inquiry. • Pereira v. v. Commissioner of Social Services Services .27 The The court held that a racist joke that Pereira, who was an investigator
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Social Netw Networking orking at the Department of Social Services, told at a political event was not protected speech on a matter of public concern and that the interest of the Department in promoting the effi ciency of its public servi se rvices ces outweighed Pereira’s interest in telling the joke, even when she was not on the job. Pereira Pereira suggests suggests that, if a public employee’s post on her blog, composed outside of work, disrupts that employee’s ability to perform her job and the post is perceived or characterized as offensivee and not touching on a matter of public conoffensiv cern, the employee could be legally terminated for blogging.
The First Amendment Amendment Most of these cases arise in the education context. Generally, schools can discipline students for off-campus offcampus blogging and social networking activities that are likely to cause disruption at school, unless the expressive content is classied as political speech. Key cases include: • In re Zyprexa Injunction Injunction .28 A reporter from the New York Times Tim es acted acted in conjunction with an attorney to fraudulently obtain condential and sealed documents related to litigation against the drug company Lilly. The court refused to enjoin the named Web sites from posting the condential documents, because it held that prohibiting only ve of the Internet’s millions of Web sites from posting the documents would not substantially lower the risk of harm har m to Lilly. • Doninger v. Niehoff .29 The court held that a student leader’s blog on Livejournal.com Livejournal.com , written in response to school scho ol officials’ actions regardin regarding g scheduling sched uling of a music festival, was on-campus speech for purpose of First Amendment claims, because the blog was related to school issues and it was reasonably foreseeable that other students and administrators would view or become aware of the blog. The court found that the student had failed to satisfy her burden of showing that there was a substantial likelihood of succeeding on her claim that the school’s actions in banning her from running runni ng for class offi o ffice violated vio lated her he r constitutio const itutional nal rights. The court emphasized that it was not deciding whether and when a school could suspend, discipline, or remove a student because of the content of a blog or email that the student prepared off-campus. The student has appealed. • Wisniewski v. Board of Educ. of the Weedsport Cent. School Dist. 30 Dist. The Second Circuit upheld a school’s suspension of one of its students for using an instant messenger icon that suggested a certain teacher at the school
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should be shot and killed. The school did not violate the First Amendment in disciplining the student, because it was reasonably foreseeable that the icon would come to the attention of school authorities and create a risk of substantial disruption within the school environment. • A.B. v. State State .31 A.B. created a fake MySpace page for her former middle school principal, and a trial judge found that comments on the page constituted criminal harassment.The Court of Appeals reversed, nding that the free speech component of the Indiana State Constitution protected the comments that A.B. had posted, because her challenge to the school’s antipiercing policy was political speech. The Supreme Court of Indiana agreed with the Court of Appeals ruling, but not its rationale.Without reaching the First Amendment issue, the Supreme Court held that the state had failed to prove prove the intent required for crimicri minal harassment. • Morse v. Frederick Frederick .32 Frederick, a high school student, brought a § 1983 action against his principal and the school board alleging that his First F irst Amendment Amendment rights ri ghts had been violated by his 10-day suspension for waving a banner that read “BONGHiTS 4 JESUS” at an offcampus school-approved event. The Supreme Court held that principal Morse did not violate Frederick’s free speech rights by conscating a banner that she reasonably viewed as promoting illegal drug dr ug use.While the rule in Morse was was ostensibly limited to speech promoting drugs, lower courts are now more likely to uphold a school’s decision to discipline a student for blogging or social networking. • Layschock v. Hermita Hermitage ge School Schoo l Dist. Dist.33 The court initially upheld a school’s punishment of a student for creating a fake MySpace page in the name of his principal. A federal judge recently ruled, however, that the suspension was unconstitutional and ordered a jury trial to determine whether the student was entitled to compensatory damages for the violation of his First Amendment rights. The judge held that the school had failed to prove that the Web site, which was created off-campus, caused any disruption to the school day. • C.N. C.N. v. Wol Wolf f .34 An openly gay student stated a claim against her principal for violation of her rights of equal protection and free expression when she alleged that her principal had threatened to expel her and to have her arrested and her personal computer conscated for her off-campus blog entry.
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Social Netw Networking orking Are Bloggers Journalists? Are Increasingly, bloggers are breaking major news stories or offering their blogs to the public as an alternative and independent source of news. In most jurisdictions, traditional journalists are protected by both a First Amendment privilege and a state statutory privilege. State statutory privileges are often signicantly more protective of journalists than the constitutional analogue. Non-traditional journalists, such as student journalists, have generally been successful in invoking the constitutional constituti onal privi p rivilege, lege, but they have often oft en had difficulty invoking the statutory privilege. Most state shield laws dene the protected class more narrowly than the First Amendment privilege does by focusing on the claimant’’s affi liation with a type of news entity rather claimant than on the intent the claimant had in gathering the information.
Courts generally have not found a reasonable expectation of privacy in communications made on Web sites, email, or chat rooms.
observed that “there is no apparent link between the core purpose of the law, which is to shield the gathering of news for dissemination to the public, and the characteristic of appearing in traditional print, on traditional paper.” • BidZirk, LLC v. Smith Smith .37 In this defamation case, the court used a standard that examined the content and intent of the contested online material and not the format it was presented in (a blog format) and classied the article in question as journalism. jour nalism.
Privacy When Can Anonymous Bloggers Be Unmasked? It is clear that anonymo anonymous us Internet speech is entitled to First Amendment protection. In allowing a defamation plaintiff to unmask an anonymous blogger, some courts apply a good faith standard, while
There are recurring debates in Congress over whether to introduce a federal shield law for f or reporters, but one of the issues blocking passage of such a law is whether bloggers would receive protection under its coverage. There are no published cases that decide whether a blogger is a journalist. Cases that touch on the relevant issues include:
others require totosupport defamation claim with factsplaintiffs sufficient defeat atheir summary judgment motion. Under the good faith standard, the plaintiff who wishes to unmask an anonymous blogger in a defamation action must establish (1) that they have a legitimate, good faith basis upon which to bring the underlying claim, (2) that the identifying information sought is directly and materially related to their claim, and (3) that the information cannot be obtained from any other source. The following decisions d ecisions discuss di scuss the approap propriate standard.
• Wolf v. United States States .35 Video blogger and freelance journalist Wolf was jailed by a federal district court
• Doe v. Cahill .38 In order to unmask an anonymous blogger accused of defamation, a plaintiff must sat-
for refusing to turn over a collection of videotapes that he had recorded during a demonstration in San Francisco. The federal prosecutor argued that Wolf did not meet the statutory denition of a journalist under California law. The court agreed that Wolf would not be protected under California’ Califor nia’ss Shield Law had the case been brought in state court, because he was not connected with or employed by a traditional news source.The court stated that the usual concerns concer ns in cases involving journalists did not apply, because Wolf had simply videotaped what people were already doing in a public place, and he did not promise anyone anonymity or condentiality.
isfy a “summary judgment” standard and not a good faith standard, because the good faith standard is insufciently protective of the First Amendment right to speak anonymously. A public gure defamation plaintiff need not produce evidence of actual malice to satisfy the summary summar y judgment standard.
• O’Grady v. Superior Court .36 The California Court of Appeal interpreted the terms “magazine” and “other periodical publication” in California’s reporter shield statute to embrace Web sites and blogs. The court
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• Krinsky v. Doe 6 .39 A Florida plaintiff sued 10 anonymous defendants for posting allegedly defamatory remarks on a Yahoo! message board. In granting one defendant’s motion to quash the subpoena that would have required the ISP to identify him, the California Court of Appeal disagreed with the Cahill summary judgment standard. The court announced a rule that requires plaintiffs to make a prima facie showing showing of the elements of libel in order to defeat an anonymous defendant’s efforts to remain anonymous.
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Social Netw Networking orking Privacy P rivacy Is an Increasing Concern Courts generally have not found a reasonable expectation of privacy in communications made on Web sites, email, or chat rooms. Although courts are generally unwilling to recognize a reasonable expectation of privacy in material that people both willingly post on the Internet and take no steps to limit access to or otherwise protect, the public is forcing at least one major social networking site to better safeguard privacy privacy,, and Congress has started to address the privacy issue as well. A Facebook feature allowing users to more easily track changes that their friends have made to their proles backred when many users threatened protests and boycotts out of privacy concerns. Facebook quickly apologized and agreed to let users turn off the feature. Facebook had to apologize to users again after it started attaching the names and photographs of users to advertisements targeted at their friends for products that they had used. Many users felt that the
• Doe v. Ashcroft .41 An Internet service provider that received an FBI National Security Letter (NSL) requiring production of customer records brought an action challenging the Patriot Act provisions provisions authorizing such letters and permanently barring disclosure of receipt of NSL letters. The court held that the NSL violated the Fourth Amendment as applied because it effectively barred or substantially deterred any judicial challenge to the propriety of an NSL request.The court also concluded that the permanent ban on disclosing receipt of an NSL letter, which it could not sever from the remainder of the statute, operated as an unconstitutional prior restraint on speech in violation of the First Amendment.
marketing campaign theiropt privacy, book quickly agreed invaded to let users out ofand the Faceprogram perm permanently anently.. Last year, Republican lawmakers asked for a hearing on Google Inc.’s $3.1 billion purchase of DoubleClick, Inc., because they wanted to know how the combined company would use the data that it collects from consumers. The consumer protection subcommittee of the Energy and Commerce Committee Committee held hearings hear ings on the DoubleClick sale and other privacy issues early in 2008, but despite concerns, both the Federal Trade Commission and European regulators regula tors approved the deal. Google started a “privacy channel” in 2007 on its YouTube video site to give consumers more information about how it uses and safeguards their personal data. Some of
received emails emails, could for often forward ward them to anyone, andthe people in, ashe chat room impersonate others.
the important cases discussing privacy issues and social networking or blogging include: • Steinbuch v. Cutler .40 Cutler, while working as a staff assistant to a Senator, created a blog called Washingtonienne . Cutler posted entries that detailed her sexual activities with various men, including Steinbuch. Although Cutler referred to Steinbuch by his initials, she supplied other identifying details, and he was, in fact, publicly identied. Another blog, written by Cox, posted a link to Cutler’s blog, which expanded her audience. Steinbuch brought an action against Cutler and Cox for two claims of invasion of privacy and one claim of intentional iniction of emotional distress. The claims against Cox were dismissed. In June 2007, the court stayed the case following Cutler’s ling of Chapter 7 bankruptcy. Cutler was red from her job when her boss discovered her blog.
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• Commonwealth v. Proetto Proetto .42 The court found that no reasonable expectation of privacy existed as to either sexually explicit messages sent by a man to a 15-year-old girl or to electronic chat room conversations between them, because once the girl
Attorney Ethics Attorneys have become increasingly reliant on the Internet for many aspects of their practice, including their Web Web sites, sit es, email correspondence, cor respondence, research activities, and marketing. They frequently use the Internet to communicate with clients and prospective clients, and more attorneys author work-related blogs or belong to social networking sites such as Facebook and MySpace. Several law rms, both in the United States Stat es and Europe, Eu rope, have even opened opene d offices in Second S econd Life, an Internet-based virtual world, to perform real legal functions. There are ve major categories governed by attorney ethics regulations that are relevant to blogging and social networking: (1) communications, (2) solicitations, (3) advertisements, (4) the unauthorized practice of law, and (5) the creation of an inadvertent attorney-client relationship.
Communications Email and Web sites, including blogs and proles posted on social networking Web sites, constitute communications between an attorney and a client if potential clients have access to them. The ABA Model Rule 7.1 requires a lawyer to avoid false or misleading communication about the lawyer or his services. A law yer must ensure ensure that what she says on her blog and on social networking sites is true, unless she restricts access to the blog or prole.
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Social Netw Networking orking Solicitations S olicitations The general rule for attorneys is that written solicitation is permissible, unless the prospective client has made known a desire not to be solicited or the solicitation involves coercion or duress. In-person or telephone telepho ne solicitation by attorneys is prohibited, except of a close friend, relative, former client, or current client. Model Rule 7.3(a) provides limited guidance on attorney solicitation via the Internet by distinguishing between “electronic communications” and “real-time electronic contact.” Emails constitute electronic communication and are governed governed by the r ules for written wr itten solicitations, because they are not likely to put potential clients on the spot. Real-time electronic communication, however, such as instant messaging, has the potential to put a prospective client on the spot and create an environment in which coercion is possible and thus is considered comparable to prohibited inperson or verbal solicitation. For example, a California State Bar ethics opinion found that an attorney’s
the site at the same time and each can see that the other is logged in and responding to messages? This This situation would seem more analogous to a chat room than to a Web site and thus would probably constitute real-time electronic communication with all its potential for impermissible coercion.
communication with a prospective in a mass-disaster victims Internet fee-paying chat roomclient violated Rule 1-400 of the State’s Rules of Professional Conduct.43
Such blogs undoubtedly garner paying clients for their attorney authors. In fact, some employers encourage employees to run work-related blogs to become known as an expert in their eld and to attract new business. There is a huge multi-jurisdiction problem with advertising on both blogs and social networking sites, because the Internet’s audience is not limited by state or even country. Every state has idiosyncratic attorney advertising rules, and it would be virtually impossible to comply with all the states’ rules at the same time because some are mutually contradictory. Some states, such as Florida, Nevada, and New Jersey, require approval or even pre-approval of ads. a ds.
Attorney blogs and social networking profiles should contain a disclaimer, making it clear that information provided on the blog or social networking site is not intended to create an attorney-client relationship.
Advertisements The ABA Model Rules cover blog and social networking advertising advertisi ng in Rule 7.1 by including “electronic communication” communicatio n” as one of the types of communications communic ations that can constitute advertising. There are several ethics opinions that clearly indicate that a Web page is an ad. There are no ethics opinions on whether proles posted on social networking sites are ads. Many attorneys author respected blogs that focus on particular areas of the law, such as How Appealing (http://howappealing.law.com ), ), which bills itself as the Web’s rst blog devoted to appellate litigation and Sentencing Law and Policy Policy (http://sentencing.typepad.com ). ).
Ethics committees in several states, including Florida, Michigan, Oregon, Utah, Virginia, and West Virginia, have concluded that messages delivered via the Internet in real time are prohibited solicitations. In California, Interim Opinion No. 96-0014 concluded that a Web site was not a solicitation. The site that was the subject of the opinion did not include live video interactivity, a bulletin board, links to other law-related Web sites, or news group functions, however. It would seem that messages posted on blogs are not communicated in real time, but what about a blog that is updated daily? Hourly? What if the author of the blog permits others to comment on postings (a common practice) and then responds to those comments soon after they are made? It would also seem that messages posted on social networking sites site s are not communicated in i n real time, but what if two users of a social networking site, one an attorney and one a potential client, are both logged into
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The Unauthorized Practice of Law The prohibition on the unauthorized practice of law can be particularly problematic because clients and prospective clients are reached by an attorney’s blog or social networking prole in all states simultaneously. Based on the personal jurisdiction cases that have arisen so far, it appears that courts would be most likely to nd that the operator of a highly interactive blog or social networking prole, on which business is conducted, is engaged in the unauthorized practice of law and least likely to nd that the operator of a fully passive blog or social networking prole is engaging in the unauthorized practice of law. Running a virtual law rm in a place such as Second Life has enormous potential to subject an attorney to the charge that he or she is engaging in the unauthorized practice of law in a jurisdiction in which he or she is not licensed to practice.
Volume 26 • Number 11 • November 2009
Social Netw Networking orking The T he Creation of an Inadvertent Attorney-Client Relationship In general, courts and other disciplinary bodies have found that an attorney-client relationship exists when the client reasonably relies on the advice of the attorney. The test focuses on the client’s subjective perceptions and beliefs. Attorneys must take care that undesired attorney-client relationships are not unwittingly formed by blogging or maintaining a prole on a social networking site. Attorney blogs and social networking proles should contain a disclaimer, making it clear that information provided on the blog or social networking site is not intended to create an attorney-client relationship. Disclaimers of any and all liability that might arise from the contents of the blog or social networking prole could also be used. Such provisions may not be enforceable unless a user use r affi r matively accep accepts ts the ter terms, ms, however. however. Disclaimerss are also likely to be unenforceable if they are Disclaimer inconsistent with the subsequent conduct of the parties.
14. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).
Notes
26. San Diego v. Roe, 543 U.S. 77 (2004).
1.
27. Pereira v. Commissioner Commissioner of Social Services, 733 N.E.2d N.E.2d 112 (Mass. 2000).
2. 3.
Fair Housing Council of San Fernando Valley v. Roommates. com, LLC, 489 F.3d 921, 924 (9th Cir. 2007), aff’d in part on reh’g en banc , 521 F.3d 1157 (9th Cir. 2008). In re Zyprexa Injunction, 474 F. Supp. 2d 385, 393 (E.D.N.Y. 2007). St. Clair Clair v. Johnny’s Oyster & Shrimp, Inc., Inc.,76 76 F. Supp. 2d 773, 774-775 (S.D. Tex. 1999).
4.
In re Zyprexa Injunction Injunction, 474 F. Supp. 2d at 393.
5.
McCabe v. Basham, 450 F. Supp. 2d 916, 925 (N.D. Iowa 2006), quoting Merriam-Webst Merriam-Webster’s er’s Collegiate Dictionary (11th ed. 2005).
6.
Doe v. MySpace, Inc. Inc.,, 474 F. Supp. 2d 843, 845-846 (W.D. Tex. 2007).
7.
Fair Housing Council of San Fernando Valley v. Roommates. com, LLC, 489 F.3d 921 (9th Cir. 2007).
8.
Fair Housing Council of San Fernando Valley v. Roommates. com, LLC, 521 F.3d 1157 (9th Cir. 2008).
9.
Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008).
10. Carafano v. Metrosplash.com, Metrosplash.com, Inc., 339 339 F.3d 1119 (9th Cir. 2003).
15. Schneider v. Amazon.com, Inc., 108 Wash. App. 454 (2001). 16. Ben Ezra, Weinstein and Co., Co., Inc. v. America Online, Online, Inc., 206 F.3d 980 (10th Cir. 2000). 17. Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). 18. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). 19. The Football Association Association Premier League League Ltd. v. YouTube, Inc., (S.D.N.Y. complaint filed May 4, 2007). 20. Viacom International, Inc. v. YouTube, Inc., (S.D.N.Y. complaint filed Mar. 13, 2007). 21. Viacom Intern. Inc. v. Youtube, Youtube, Inc. Inc., 540 F. Supp. 2d 461 (S.D.N.Y. 2008). 22. Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007), amended , 508 F.3d 1146 (9th Cir. 2007). 23. Connick v. Myers, 461 U.S. 138 (1983). 24. Pickering v. Board of Education, 391 U.S. 563 (1968). 25. Stengle v. Office of of Dispute Resolution, Resolution, 479 F. Supp. 2d 472 472 (M.D. Pa. 2007).
28. In re Zyprexa Injunction, 474 F. Supp. 2d 385 (E.D.N.Y. 2007). 29. Doninger v. Niehoff, 514 F. Supp. 2d 199 (D. Conn. 2007). 30. Wisniewski v. Board of Educ. Educ. of the Weedsport Weedsport Cent. School School Dist., 494 F.3d 34 (2d. Cir. 2007). 31. A.B. v. State, 885 N.E.2d 1223 (Ind. 2008). 32. Morse v. Frederick, Frederick, 127 S. Ct. 2618 (2007). (2007). 33. Layschock v. Hermitage Hermitage School Dist., Dist., 412 F. Supp. Supp. 2d 502 (W.D. Pa. 2006). 34. C.N. v. Wolf, 410 F. Supp. 2d 894 (C.D. Cal. 2005). 35. Wolf v. United States, 201 Fed. Appx. 430 (9th Cir. 2006). 36. O’Grady v. Superior Court, 139 Cal. App. 4th 1423 (2006). 37. BidZirk, LLC v. Smith is Smith is an unreported case from the District of South Carolina 2007. 38. Doe v. Cahill, Cahill, 884 A.2d A.2d 451 (Del. 2005). 39. Krinsky v. Doe 6, 6,159 159 Cal. App. 4th 1154 (2008).
11. Doe v. MySpace, Inc., 474 F. Supp. Supp. 2d 843 (W.D. Tex. 2007).
40. Steinbuch v. Cutler, Cutler, 463 F. Supp. Supp. 2d 4 (D.D.C. 2006).
12. Doe v. SexSearch.com, 502 F. Supp. 2d 719 (N.D. Ohio 2007).
42. Commonwealth Commonweal th v. Proetto, 771 A.2d 823 (Pa. Super. Ct. 2001).
13. DiMeo, III, v. Max, 433 F. Supp. 2d 523 (E.D. Pa. 2006).
43. Californi Californiaa State Bar Formal Opinion No. 2004-166.
Volume 26 • Number 11 • November 2009
41. Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004).
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