Q2 2018 Quick Links, Part 4 (Social Media, Section 230, Defamation)

Social Media

* NY Times: They Tried to Boycott Facebook, Apple and Google. They Failed

* Reuters: Philippines complains Facebook fact-checkers are biased

* D.R. v. D.A., 17-P-339 (Mass. App. Ct. May 8, 2018). A judge can interpret a Facebook “like” as a threat of imminent physical harm.

* Harvard Business Review: How Nextdoor Addressed Racial Profiling on Its Platform

* Day v. West Virginia Department of Military Affairs and Public Safety, No. 17-0281 (W.V. Sup. Ct. App. May 17, 2018): Police officer fired for a personal Facebook post saying he was embarrassed by his colleagues’ conduct at a citizen rally. Police officers with a conscience should be promoted, not fired

* Buzzfeed: Twitter Is Going To Limit The Visibility Of Tweets From People Behaving Badly

* Slate: The Great Facebook Crash: The social giant is retreating from the news business. It’s been a painful transition for publications that had come to depend on it—including Slate.

* WSJ: Facebook Throws More Money at Wiping Out Hate Speech and Bad Actor

* Motherboard: Leaked Documents Show How Instagram Polices Content to Prevent ‘PR Fires’

* Washington Post: Inside Facebook and Twitter’s secret meetings with Trump aides and conservative leaders who say tech is biased

* Kash Hill: Pray for the Souls of the People Sucked Into This Dating Site Hell

* Cracked: 5 Crazy Ways The Real World’s Changing Thanks To Video Games

* CHE: No More Chili Pepper: RateMyProfessors Ditches ‘Hotness’ Ratings

* Trigueros v. New Orleans City, 2018 WL 2336321 (E.D. La. May 23, 2018). “Plaintiff’s Facebook post does not qualify as a protected activity under the FLSA. First, while Plaintiff’s post may be categorized as a complaint, it fails to meet the requirements here because it was not a complaint directed in any way at her employer. The post was to a personal social media page. While some of these pages, depending on privacy settings, may be viewed by the public, the general audience of a social media post is friends and acquaintances. Though an employee may be connected to coworkers and her employer on a social media site, the Court has not found an example of a social media post qualifying as a complaint to an employer or protected activity under the FLSA.”

* Zucker v. City of Los Angeles, 2018 WL 3062304 (Cal. App. Ct. June 21, 2018):

Here, the department’s showing of the potential disruptiveness of plaintiff’s Facebook comment outweighs plaintiff’s First Amendment right. While the speech involved a matter of public concern because plaintiff commented on a news article, it also included a derogatory statement directed at Debellis. Plaintiff made the comment on Cronin’s Facebook profile, knowing other department employees would see his post. Debellis saw plaintiff’s Facebook comment and filed a personnel complaint against him after determining he was a LAPD employee through his Facebook profile. Vargas investigated Debellis’s complaint that she “felt that improper remarks had been made about her on a Facebook posting.”5 Vargas reviewed the Facebook documents provided by Debellis and “deduced that this was a Facebook page of an [LAPD] employee.” Debellis’s complaint of plaintiff’s derogatory statement, and the resulting investigation show that the Facebook comment impaired harmony among co-workers and caused potential disruption to department operations. We accordingly conclude plaintiff’s Facebook comment is not protected by the First Amendment.

* Baker-Rhett v. Aspiro AB, 2018 WL 3094921 (SDNY June 22, 2018). Kanye West’s tweet that his new album “will never never never be on Apple. And it will never be for sale … You can only get it on Tidal” could constitute fraudulent inducement.

* Remember the Innocence of Muslims video (& its contribution to the important Garcia v Google precedent)? Apparently the “top Egyptian court” blocked all of YouTube in Egypt because of it.

Section 230/Must-Carry

* Shuler v. Duke, 2018 WL 2445685 (N.D. Ala. May 31, 2018): “Plaintiffs’ claim against Google is based entirely on the fact that “Defendant Google negligently ran an ad promoting defamatory web sites….” This does not even allege that the complained-of ad was itself defamatory. Thus it wholly fails to allege defamation by Google. Even if Plaintiffs had so alleged, as to defendant Google (only), the Court finds that the claim in this Count is barred by Section 230 of the Communications Decency Act, which states that “[n]o provider … of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider.” Accordingly, all claims in Count Seven will be dismissed with prejudice as to defendant Google on this additional and independent basis.”

* Trump Village Section 4, Inc. v. Bezvoleva, 2018 WL 2123724 (N.Y. App. Div. May 9, 2018): “We agree with the Supreme Court that the Communications Decency Act did not warrant dismissal of the complaint at this juncture. A defendant is “immune from state law liability if (1) it is a ‘provider or user of an interactive computer service’; (2) the complaint seeks to hold the defendant liable as a ‘publisher or speaker’; and (3) the action is based on ‘information provided by another information content provider’ ” (Shiamili v Real Estate Group of N.Y., Inc., 17 NY3d 281, 286–287, quoting 47 USC § 230 [c][1]). “[I]f a defendant service provider is itself the ‘content provider,’ it is not shielded from liability” (Shiamili v Real Estate Group of N.Y., Inc., 17 NY3d at 289, quoting 47 USC § 230[c][1] ). Here, the plaintiffs alleged that the defendants authored the defamatory statements, which would mean that the defendants were content providers within the meaning of the statute. If that allegation is true, as we must assume for purposes of this motion, the Communications Decency Act does not shield the defendants from liability for defamation.”

* Susan Crawford: Calling Facebook a Utility Would Only Make Things Worse

* Dingwell v. Cossette, 2018 WL 2926287 (D. Conn. June 7, 2018): “While this case involves Mr. Dingwell, Sr.’s access to posting on the Police Department’s Facebook page, the access he seeks and the restrictions imposed appear to be substantively the same. In light of the similarities in which the two social media platforms operate and the public nature of the forum, the Court finds Plaintiff has properly asserted a First Amendment retaliation claim with respect to the blocking of his access to the Meriden Police Department’s Facebook page.”

* Cracked: 6 Things You Learn Trying To Meet A ‘Sugar Daddy’ Online


* Petro-Lubricant Testing Laboratories, Inc. v. Adelman, 2018 WL 2089807 (N.J. Sup. Ct. May 7, 2018)

We now hold that the single publication rule applies to an internet article. However, if a material and substantive change is made to the article’s defamatory content, then the modified article will constitute a republication, restarting the statute of limitations…. not every alteration to a website will restart the statute of limitations period on a defamation claim. Technical website changes and alterations unrelated to the substance of the allegedly defamatory content in the article do not constitute republication…. A substantive change is one that alters the meaning of the original defamatory article or is essentially a new defamatory statement incorporated into the original article. A substantive change is not the mere reconfiguring of sentences or substitution of words that are not susceptible of conveying a new defamatory meaning to the article.

* Anderson v. City of Homewood, 2018 WL 2933960 (N.D. Ala. June 12, 2018): “The City admits it published a statement via Facebook concerning Anderson. However, the City’s Facebook posting about Anderson’s arrest simply was not false. Ross and Jeffcoat arrested Anderson, which Anderson does not dispute; indeed, he complains about it. Anderson disputes only the lawfulness of his arrest, which does not negate the fact that Ross and Jeffcoat did arrest him and book him into jail. Anderson published a video of his arrest to Facebook, which additionally confirmed to the public that he was arrested. As such, Anderson cannot establish the falsity of the City’s Facebook posting.”

* SZS Solutions, Inc. v. Brother International Corp., 2018 WL 3126220 (S.D. Fla. June 26, 2018): sending a takedown notice to Amazon, alleging that a marketplace item is infringing, could be defamatory.

* Fairbanks v. Roller, 2018 U.S. Dist. LEXIS 95068 (D.D.C. May 16, 2018). Fairbanks posted a photo to Twitter “in the White House press room making a gesture widely recognized as the “okay” hand symbol but also speculated at the time to be a ‘white power’ symbol.” Roller retweeted the photo with the caption “just two people doing a white power hand gesture in the White House.” Fairbanks sued Roller for defamation. The court rejects the applicability of DC’s anti-SLAPP statute in federal court. Nevertheless, the court dismisses the case on First Amendment grounds because Fairbanks was a public figure and Roller did not sufficiently allege evidence of actual malice: “the inescapable conclusion one reaches upon viewing the photo and tweets at issue (including Ms. Fairbanks’ tweets) is that Ms. Fairbanks intended her photo and hand gesture to provoke, or troll, people like Ms. Roller whether because the gesture was actually offensive or because they would think that it was offensive-not that Ms. Fairbanks was the victim of a malicious attack based on innocent actions.”

* Neff v. McGee, 2018 WL 3062269 (Ga. Ct. App. June 21, 2018). This is a collateral lawsuit to Maynard v. Snapchat. McGee allegedly drove at a high speed motivated by Snapchat’s speed filter when she struck Maynard’s car. Neff represents Maynard. McGee sued Neff for defamation based on article he posted on his website about the case. Neff successfully invoked Georgia’s anti-SLAPP law.