Dealing with Social Media When the Topic of Conversation is You
Social media is so pervasive that the Millennial Generation, also known for the past ten years or so as “Generation Y,” has given way to “Generation F” – the Facebook Generation. The numbers do not lie. Facebook’s population exceeds 500 million users. If Facebook was a country, it would be the world’s third largest. According to Facebook, its 500 million users spend over 700 billion minutes per month on Facebook; stretched end to end, that is 79,855,686 years worth of time. People are talking on Facebook, and they are talking a lot.
One question that frequently arises is, what options are available when you, your family, or your business becomes a topic of discussion on Facebook, a blog1, or any other social media outlet? Obviously, a lot depends on the context of the conversation and what you do or do not know about the commentator. In some instances, the person who posts the material may be a Facebook “friend,” a business associate, or someone you otherwise know who openly posts something that causes a problem. In other instances, the author may be anonymous, may have set up a fictitious name or site, or may even have stolen your identity and posed as you in posting the content.
Although the legal issues can be easier to identify when you know who posted the content or when you have immediate access to the content, in the case of anonymous, offensive, or untrue content that you would like removed, the rabbit hole can be as deep as it is wide. Social media providers face the challenge of striking a delicate balance between providing their users the freedom to express their opinions and viewpoints – even those that are controversial – and maintaining what they often bill as “safe” and “trusted” environments for users. Providers cannot tolerate content that promotes threats, discrimination, hate, violence, or other types of content that may infringe on the legal rights of their users or create potential liabilities for the provider. However, users like to talk about controversial subjects, and even unpopular ideas, products, or people can be legitimate topics of conversation or opinion, when properly expressed.
Most social media providers have a variety of mechanisms in place on their sites for dealing with content you find objectionable; however, that variety can become another problem as you find yourself in a labyrinth of forms, reports, or other links that lead you further away from addressing the content with a decision maker who can do something about it. For example, Facebook and Google do not make it easy for you to access information about its users, and for good reason. Federal law generally prohibits the disclosure of user information and makes it a crime in some instances to attempt to access that information.
The Stored Communications Act of 1986 controls both voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers (“ISPs”). Facebook, AOL, Google, and other social media providers are ISPs, and anything written on their sites is arguably protected content as either an “electronic communication,” or a “transactional record” about the electronic communication. However, consider that the Stored Communications Act was written four years before the Internet existed, and two years after the birth of Facebook’s founder, Mark Zuckerberg. Consequently, there are many arguments about the Act’s interpretation, utility, and application to public postings on blogs, private e-mails, comments on web-hosting networks, investigations into criminal activities by the government, and countless other factual situations that will inevitably arise as we continue to see the evolution of this emerging technology.
In the context of a civil lawsuit, the parties usually know each other in some way and often seek “discovery” from each other, which involves seeking information and documents in the possession or under the control of a party. The parties can request copies from each other of social media postings, blog archive materials, and other electronically stored information so long as the requested information is relevant to the claims or defenses in the case. However, a party seeking that information directly from Facebook or Google can expect further argument and expense. Facebook, among other requirements, requires a valid subpoena issued from a California court and a $500 deposit before it will undertake a search for the records you request. Unless your lawsuit is pending in California, you will have to open a special proceeding in California to obtain the subpoena. With regard to specifying the records you would like, that specification must usually be stated in the language of the computer provider, which is a language few people speak fluently.
Outside of the context of a lawsuit, most social media providers have procedures by which you can report objectionable content to the provider. The provider generally has some policy in place that dictates what its users may and may not post with regard to content. Although Facebook promotes the idea that it is “largely self-regulated,” the judge of whether the content is offensive enough to be removed is Facebook. Facebook’s “Community Standards” page explicitly states that reporting an offensive person, organization, or piece of content does not guarantee that it will be removed from the site. Likewise, Google’s “Blogger Boundaries” places Google in charge of reviewing reported content and determining whether or not to take action.
Consider this, too: Google relies on Section 230(c) of the Communications Decency Act of 1996 and requires that in order for Google to remove material that is defamatory, the material has to have been found to be defamatory by a court, as evidenced by a court order. For its part, Section 230 of the Communications Decency Act states that providers of “interactive computer services” (blogs, e-mail services, etc.), are not “publishers” of the offending content. Publication is an essential element of proving a claim for defamation, and if the ISP is not a “publisher,” then it cannot be found liable. Effectively, this Section immunizes both ISPs and even Internet users from liability for torts like defamation that are committed by others using the ISP’s website or online forum, even if the provider fails to take action after receiving actual notice of the harmful or offensive content. Of course, taking the direct route against the author can result in the removal by the author of the offending material.
So, what can you do if someone has posted offensive material about you? We can work with you in regard to contacting the service provider, navigating the maze of forms and links, and putting some larger context to the postings to help the provider understand why the material should come down. If you are trying to access information from a provider, we can help craft the request in a time and manner that is required by the provider or a court. In the case of Facebook, we can aid in preparing the California subpoena that will be necessary. When taking the direct route against an author of an offensive posting, a strongly worded “Cease and Desist” letter is usually the first step, and we are well versed in crafting such letters. The tools we will bring to the task will be determined in many instances by the level of response that you consider to be necessary, which is often a decision that may require the advice of counsel.
Going forward, courts and clients will no doubt be faced with many challenges in dealing with the fundamental shift in communication that has occurred with the advent of social media. According to the U.S. Census Bureau, over 50% of the world’s population is under 30 years old. That means Generation F has approximately 3.45 billion members. If one of them has something to say about you, there appears to be plenty of people willing to listen. Of course, we at Koley Jessen are always here to listen, so please do not hesitate to call if you find yourself confronted with a social media problem or other situation that requires attention.
By David A. Yudelson
1 Blog (n): a web-site that contains an online personal journal with reflections, comments, and often hyperlinks provided by the writer; also: the contents of such a site.