Another Attempt to Scrub Unflattering Posts Fails

May 7, 2014 · by Venkat Balasubramani · in Content Regulation, Copyright, Privacy/Security

This is another social media defamation case. (Last week’s edition: Another Questionable IP Lawsuit Over a Derogatory Twitter Account.) Plaintiffs were husband and wife. One of the plaintiffs (Hassan Miah) was involved in a business dispute involving a business he founded known as Urfilez. He settled the dispute in December 2012, but alleged that someone was posting derogatory stuff about him and his wife in August 2012. The posts accused them of unethical conduct, and one of the posts contained their wedding photo.

shutterstock/ConstantinosZ – “hands in rubber gloves scrubbing the floor”

They sued for copyright infringement, violations of the CFAA, tortious interference and false light. They also sought leave to issue subpoenas to the likes of Google, Twitter, and Facebook.

The court sua sponte dismisses the case.

Plaintiffs allege that the doe defendant(s) violated the CFAA by accessing photos from the wife’s Facebook account. The court says that the complaint is deficient because it fails to alleged many of the requisite CFAA elements (unauthorized access; protected computer; damage or loss) (“[the complaint] does not allege that the wedding photo was destroyed or impaired”). The court does not discuss the even more basic issue that the protected computer in this case, Facebook’s server, is not one that plaintiffs own or even have a possessory interest over.

As to the copyright claim the court dismisses it because plaintiffs failed to allege that they registered the work.

Finally, having dismissed the two federal law claims, the court declines to exercise jurisdiction over the state law claims.

A familiar fact pattern and a familiar set of claims, including the use of copyright claims as a mechanism to effect a takedown. (See Garcia v. Google and others.) Unfortunately for plaintiffs, the court is not having it.

The court gives plaintiffs a chance to amend, but also drops in a footnote, flagging that as a law school graduate, one of the plaintiffs should know better, and in future, she should sign any pleadings. (See Rule 11.) Ouch.

Setting aside their somewhat clumsy effort, and the fact that it’s possible these claims were extinguished in the settlement around the previous dispute, it’s tough to not have some sympathy for plaintiffs. As hyperbolic as the commentary sounds, it’s tough to conclude that as a private figure, you should not have a remedy against someone who goes around online calling you unethical. Assuming plaintiffs do have ownership of their wedding photo, they probably have a colorable copyright claim as well, at least enough to force someone to take down the photo. That said, this should not translate into a right to suppress commentary or criticism.

Case citation: Tan v. Doe, 2014 U.S. Dist. LEXIS 61972 (S.D.N.Y. May 1, 2014)

Twibel Ruling: Tweeting That Someone is “Fucking Crazy” is Not Defamatory

Creating Parody Social Media Accounts Doesn’t Violate Computer Fraud & Abuse Act – Matot v. CH

Employee’s Twitter and Facebook Impersonation Claims Against Employer Move Forward — Maremont v. Fredman Design Group

Facebook Posts and Twitter Invites Don’t Violate Non-Solicitation Clause — Pre-Paid Legal v. Cahill

Employee/Ex-Employer Lawsuit Over Twitter Account Settles – Phonedog v. Kravitz

Employer Who Takes Over Employee’s Social Media Accounts May Commit Privacy Violation–Maremont v Susan Fredman Design

Creating Parody Social Media Accounts Doesn’t Violate Computer Fraud & Abuse Act – Matot v. CH

Misguided Catfishing Scheme Leads to Discipline of College Students — Zimmerman v. Ball State

Accessing Ex-girlfriend’s MySpace Account and Posting Offensive Content Results in Conviction

Ex-Employer’s Hijacking of a LinkedIn Account Is a Publicity Rights Violation–Eagle v. Morgan

Employer Fails to State Stored Communications Act Claims Absent Allegations That Employees Interfered With Company Accounts – Castle Megastore v. Wilson