Facebook & The Future of Social Media Law

These days, it’s not uncommon for social media to be used in discovery for complex litigation. Federal labor laws are now looking into its application to Facebook, Twitter, and blogging, for example.

The future of social media law is currently uncertain. However, it is clear that change is upon us. For 2012 New Year’s resolutions, have your law firm brush up on social media litigation and its impact on the future of your firm and clients.

Right of Publicity

Right of Publicity is a nightmare even for intellectual property lawyers. The law, which gives individuals the right to control the commercial use of his and her personal likeness, is often unclear.

But, recently, the right of publicity has been applied to online abuses on the part of Facebook. So, 2012 is a time for IP lawyers to finally define the use of right of publicity in social media.

On December 16, 2011, a federal judge refused to dismiss a class action lawsuit against Facebook for the site’s running Sponsored Story ads that include the names of the user’s friends who “like” that ad. The plaintiffs claim that this practice amounts to a “commercial appropriation” of the friends’ likenesses.

Expect more explicit regulations on this intellectual property item in the months to come.

Concerted Activity

Brian Wassom, for Mashable, believes the world wide web will see better guidance on “conerted activity.”

Changes in facebook privacy settings or simply lack of attention in the part of users has led employers to read scathing remarks made by current employees. These employees, in the past, have been fired for their online activity.

Unfortunately for employers, in a few cases, the NLRB deemed such content “concerted activity” between employees intended to improve their workplace conditions.

Wassom writes,

“Many of these cases have settled. A few have recently been decided by administrative law judges within the NLRB. In 2012, however, we’re likely to see at least some of these disputes decided by full-fledged federal courts, which should help further clarify for employers and employees alike exactly where the lines are. The NLRB itself took a step in that direction in
August 2011, when it released a 24-page memo (PDF) summarizing all of its then-current social media cases, and the reasoning behind them.”

Wassom may be correct in assuming that employment legislation is poised for change in a big way. The rules for non-discrimination and “concerted activity” in the workplace will need to be altered to accommodate Facebook and other social media to prevent the violation of the spirit of labor law.

Privacy Rules

Facebook made the news in November 2011 by agreeing to submit to audits of its privacy practices by the Federal Trade Commission for the next 20 years.

Part of this was in reaction to a rise in lawsuits regarding privacy.

For example, a Mississippi woman sued Facebook in federal court, accusing it of violating federal wiretap laws to track her online activity. The issue was, this woman wasn’t even when logged onto the site when the tracking occurred.

“Leading up to September 23, 2011, Facebook tracked, collected, and stored its users’ wire or electronic communications, including but not limited to portions of their Internet browsing history even when the users were not logged-in to Facebook,” according to the complaint by Brooke Rutledge of Lafayette County, Miss.

“Plaintiff did not give consent or otherwise authorize Facebook to intercept, track, collect, and store her wire or electronic communications, including but not limited to her Internet browsing history when not logged-in to Facebook.”

Litigation about privacy issues is not new for Facebook. But, it’s still unclear what the courts will rule

Just Google Facebook and litigation to find out more. In the meantime, read Brian Wassom’s full article for Mashable, “5 Predictions for Social Media Law in 2012” and key moments in social media law below.


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