5 Predictions for Social Media Law in 2013

The law governing social media in the United States continued to evolve and mature in 2012.  As predicted, some of the most significant developments in this field over the past year included a new appreciation for publicity rights online, guidance on the rights of employees to advocate for better workplace conditions, privacy rules, social media legal evidence, and the ability of schools to punish students for online activity.

Many of the developments in this field over the next year are likely to revolve around First Amendment freedoms.  As social media becomes an increasingly important forum for the expression of ideas, it will be critical to more precisely define the rules on what can be said, how and where it can be said, and who gets to participate.  But, just as social media continues to infiltrate all facets of society, so too will its legal ramifications be felt in every field of law.

 1.  Injunctions Against Online Speech

Courts are seeing more and more lawsuits alleging defamation, invasions of privacy, and other injuries to reputation and dignity based on social media posts.  Courtney Love has become the poster child for this phenomenon, having been sued multiple times for allegedly managing to defame someone in 140 characters or less.  And earlier this year, we saw how grave the consequences of online privacy invasion can be when Rutgers student Tyler Clementi killed himself after his roommate, Dharun Ravi, surreptitiously live-streamed Clementi’s sexual encounters on Twitter and iChat.  So you can hardly blame judges and litigants for wanting to act as quickly as possible to remove offensive content from the internet.

Acting too quickly, however, can trample one of our most fundamental liberties—the freedom of speech.  Over the past year we’ve seen multiple courts use preliminary injunctions—orders entered at the very beginning of a case—to force the removal of controversial posts while a lawsuit is pending.  For example, a Virginia judge recently ordered Yelp to take down critical posts that a homeowner wrote about a contractor after the contractor sued for defamation.  And a Florida court ordered the removal of blogs criticizing a shopping mall owner.

“Takedowns” have become a fact of life for internet users.  We’re accustomed to seeing private website owners choose to remove material that either violates their terms of use or exposes them to liability for copyright infringement.  But it is another thing entirely when a court orders expressive speech to be removed without even making a finding that the content is, in fact, unlawful.  That risks turning the First Amendment’s cherished prohibiting against abridging the freedom of speech” into a mere suggestion.  Other courts have outright refused to do so.  We’re likely to see this issue come to a head in 2013.

 2.  Bans on Social Media Access

It’s also understandable that governments would look for ways to keep criminals from misusing social media.  For example, it’s not uncommon for courts to either prohibit probationers from using social media or at least to require that they disclose all of their accounts, especially if their crime involved the internet.  But some states have gone much farther than that, imposing such restrictions on every registered sex offender, regardless of their crime.  In the past year, courts in Nebraska and Louisiana have struck down such statutes as taking away too much ability to speak from too many people.

But political pressure to protect minors from online predators is unlikely to abate.  It remains to be seen whether, in the coming year, legislatures and courts can find a way to police social media without completely closing the door to those whose crimes don’t merit such harsh punishment.

3.  Parental Fitness and Child Custody

Speaking of the issues kids face in social media, 2012 saw the emergence of a new and unexpected source of online angst: their parents.  Misbehaving teens have seen their parents resort to posting embarrassing pictures and a video of themselves shooting the kid’s computer as a means of punishment.

These incidents sparked important and challenging debates nationwide about the meaning of parenting and discipline in a socially networked world.  But at least these parents were trying to do the right thing.  Parents also do plenty of embarrassing things online that don’t benefit themselves or their children.  Facebook evidence is already commonplace in divorce cases, and it can even undermine the parent’s ability to maintain custody.  Family courts in California, Kentucky, New York, Ohio, and Iowa have cited a parent’s Facebook posts as evidence of their unfitness to be a parent—and those are just the decisions that have been reported.  Family courts are likely to make even greater use of this evidence in 2013.

4.  More Nuanced Commercial Disputes

For the past few years, commercial litigation involving social media has largely been about intellectual property.  Companies that were not active in social media found others online using their copyrighted content and identifying trademarks, and sued to stop it.

To be sure, those types of disputes will continue.  But, generally speaking, businesses large and small now understand that they need to be in social media, and many have now been active in the space for some time.  With that deeper involvement comes a broader and more nuanced array of commercial issues—the types that are commonplace in other contexts, but that are only beginning to emerge in connection with social media.

For example, courts in Indiana and Massachusetts have recently considered whether a former employee’s social media post violated the terms of his noncompetition agreement with his former employer.  A Florida court determined an instant messaging conversation between two businesspeople altered the terms of their contract.  And a Michigan court rejected the argument that a trademark owner’s demand letter that resulted in the takedown of a competitor’s Facebook page was a tortious interference with that company’s business.

Commercial activity in social media will only continue to expand in 2013, as will the diversity and sophistication of the legal disputes they spawn.

5.  Digital Populism and Democratization

Among the many creatures in the Lord of the Rings trilogy is an ancient race of beings called “Ents.”  Long dormant and withdrawn from the world, the Ents manage to turn the tide of a great battle when they are finally roused and join the fray.  “A thing is about to happen which has not happened since the Elder Days,” intones one character just before this happens. “The Ents are going to wake up and find that they are strong.”

A very similar development is underway in American political life.  Social media has become a vehicle for “digital populism,” the phenomenon of using the internet as “a catalyst for concerted behavior” among individuals who previously had no realistic means of effecting political change. This phenomenon first gained prominence domestically during the 2011 “Occupy” protests.  In January 2012, online protests culminated in a January 18 “Blackout” of popular websites across the country for a day to protest the SOPA and PIPA copyright bills then under consideration in Congress.  Both bills were shelved soon thereafter.

We haven’t seen the same level of grassroots coordination on political issues since the “Blackout,” although both political parties proved during the 2012 election year the power and necessity of coordinated social media campaigns. But spontaneous protests and movements centered on various political, corporate, or social issues continue to form online almost every day, with varying degrees of success.  And the White House’s “We the People” policy of considering online petitions through its website has gained new life following the 2012 election.

There is a dark side to these movements as well.  During the social media furor over the shooting death of Trayvon Martin, director Spike Lee tweeted what he thought was the address of the supposed killer—only to discover later that he had instead pointed the angry crowds to the home of an elderly couple whose own lives were put at risk as a result.  (Lee later paid the couple an undisclosed sum to settle their lawsuit.)  More recently, a viral photo celebrating a New York policeman’s generosity toward a homeless man gained so much attention that the homeless man reportedly began to fear for his own safety.  It would not be surprising, then, if in 2013 we see not only continued expansion of digital populism—even solidifying into actual organizations with defined leadership—but also more legal action by individuals who find themselves trampled, in one sense or another, by a digital mob.

and 6th…

Keep your eye on this website in the coming months for what I hope will be a significant contribution to the study and understanding of social media law!