Anyone who has served on a jury, read To Kill a Mockingbird, or watched a legal drama knows that strict formalism and decorum exists in the courtroom. Judges must wear robes, the jury sits in its box, officers escort the defendant in and out, and lawyers speak only when it’s their turn.

This same ceremonious solemnity also makes the courtroom a place of intrigue, especially to a juror. Perhaps never having been in a courtroom, the strangeness and newness of the court experience picques the juror’s interest. Objectively, a courtroom is a bit unusual — where else is it totally normal for someone to walk around in long black robes? The conditions exist for jurors to want to memorialize and capture their experiences through social media — a tweet, selfie, or Instagram upload.

A recent study by the Federal Judicial Center, however, has revealed that few jurors actually succumb to using social media during a trial. This seems counterintuitive. Social media has such an easiness to it, and a trial is such a spectacle — it would only seem natural for jurors to use social media during their court experience. Why don’t they?

The study reveals a few reasons, including that trial judges explicitly prohibit the use of cellphones and carefully instruct jurors to not use social media in reference to the trial. Apparently these admonitions work to curb the desire to tweet or use Instagram. Although the impulse might exist to want to use social media, warnings by the Judge control those inclinations.

Interestingly, jurors buy in. At concerts and movies, instructions often say to not take pictures or record, but few heed these restrictions. What makes the courtroom so different that jurors predominantly comply with the request to refrain from using social media? Is it that they fear criminal penalty?

While penalty might play some role, I think the same reasons that a juror might feel compelled to capture the court experience simultaneously curb social media usage. The formalism of the court creates intrigue but also compliance to the rules of the court. The juror sees the Judge complying with the dress code and donning robes. The lawyers submit to strict procedural rules on how to conduct a trial. Even police officers obey their instructions with scrupulousness. The whole atmosphere in the court is one of obedience, and it is thus not surprising that jurors implicitly follow suit and refrain from using social media when told.

If you have never been to a court, it is an interesting experience. You will notice how an atmosphere, a space, and the culture of a place can change your behavior and how you think.

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post Why Don’t Jurors Succumb to the Lure of the Selfie in Court? appeared first on Law Street.

The right to disappear has become increasingly en vogue. In Europe, the movement has particular strength as the European Union passed directives protecting it, and European courts have challenged large corporations to comply with the law.

The right to disappear basically attempts to preserve an individual’s control over information on the internet about himself. There are multiple variations, but it might, for example, allow a user to remove an unsavory article about herself on Google, or it may allow her to erase potentially damaging photographs from Facebook.

In the context of the internet, however, can information actually disappear? Does information on the internet resemble a sheet of paper that can disintegrate forever in a fire, or a tiny piece of silver incapable of actual destruction? In the U.S., a recent FTC complaint against Snapchat provides an interesting angle to explore this issue.

In a sense, the company leveraged the massive support for this right to be forgotten when it devised its own application. Social media usually insinuates some sort of public sharing, but SnapChat twisted the concept to include a more discreet form of connecting. SnapChat mushroomed into one of the most popular phone applications due to the transient nature of activity on the platform. While users still connect via the internet, the communications on SnapChat are intended to evaporate within ten seconds. SnapChat is the reverse of Twitter, Facebook, Instagram, Pinterest, and most other social media sites, in that SnapChat communications leave no cyber footprint. The app seemed to offer a way to use social media while still preserving one’s right to disappear.

Unfortunately, SnapChats don’t actually disappear as easily as the company claimed, according to a recent Federal Trade Communication complaint asserting that SnapChat did not properly inform its users that their SnapChats may be permanently saved and stored by other users.

The FTC complaint highlights that on the SnapChat’s FAQ, the company misstated that snapchats will permanently delete. The FAQ reads:

Q: Is there any way to view an image after the time has expired?
A: No, snaps disappear after the timer runs out

The FTC notes that users can easily screenshot the snapchat to permanently save it. Additionally, the complaint explains how to circumvent Snapchat’s policy of informing the sender if the recipient screenshot the snapchat: if a user on an iPhone quickly hits the device’s home button after taking a screenshot, the SnapChat application will close before informing the sender that the image has been saved. Thus, the FTC hammered down on SnapChat for its overly hyperbolic claim that users cannot save snapchats.

Importantly, this ruling highlights something crucial about the internet: it may prove impossible for information passed via the internet to ever truly disappear. Moreover, companies might face penalty if they claim to offer such a service.

What does this mean for the practicality of a right to disappear? Suppose, for example, that Google takes legitimate steps to remove information about a European citizen after he invokes his European right to disappear. The efficacy of Google’s actions depends on the objective nature of information on the Internet. Does information on the internet resemble a piece of silver or a piece of paper? One will incinerate in a fire, the other will not. What if Google does what it can to bury the information – the piece of silver — but it resurfaces? Can a user sue Google?

In the age of the internet, do we actually have a right to disappear? Or, should we more accurately label it a right to hide a bit better, because all we can legitimately do is frustrate efforts to find the information that will always exist somewhere?

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Imran Ahmed is a law student and writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [Search Influence via Flickr]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post SnapChat SNAFU Proves Relevance of Europe’s Right to Disappear Laws appeared first on Law Street.

The advent of social media has meant that the average person documents his or her activities to a far greater extent than previous generations. On Instagram, we might sneak a photo at work. On Tumblr, we might yawn out a recap of our emotional well being. On Twitter, we might spit out spontaneous thoughts and capture everything we like, share, comment on, and much more on Facebook. Collectively, all of this activity narrates a quite detailed story about our lives.

A major question emerges from this new, sweeping social presence: should all of this sharing warrant celebration or fear?

A recent federal case provides a nice angle to explore this issue. In Vasquez v. Metro-North, an employee of Metro-North Railroads sued the company after he injured his wrist at the workplace. Vasquez, the employee, claims Metro-North aggravated his injury by asking him to return back to work before he fully recovered. To rebut Vasquez’s claim, Metro-North points to social media photographs of Vasquez lifting weights after his injury and claims that if he can perform that activity, then he can do what he needs to do at his job.

Should Metro-North be permitted to use photographs of Vasquez from social media in a court trial about a worker’s injury?

One key fact concerns whether the photographs were publicly accessible or private. Could courts allow one party to access the private photographs and information contained on the other party’s social media sites? Certainly, a different sentiment emerges if the user makes the information publicly available as opposed to if the person shared it to a small group of people.

But, should it matter? If the issue in a trial concerns finding the truth, should one party be able to selectively search through private social media information of the other party in the pursuit of justice? If Vasquez really attempted to milk the system, it might benefit society to find a corrective for such free riding, even if that corrective involves accessing the private social media information of another party.

Alternatively, this raises heavy privacy concerns and we might be uncomfortable with the potential for abuse. A photograph lacks exactitude and access to social media accounts might confuse juries with an abundance of mildly relevant crumbs. Vasquez argues that though he could life weights during the time in question, his wrist would not allow him to perform his job functions. Does weight-lifting really parallel the functions anyone performs at a job such that it can reveal anything meaningful about a person’s capacity? It is difficult to know.

More clear is the notion that this issue might not have surfaced even five years ago. Only in the modern social media age do we casually photograph ourselves at the gym and post it with a relatively certified timestamp. And only now do we have to worry about how this sharing might come back to serve a more twisted purpose.

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Imran Ahmed is a law student and writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [tpdave via Pixabay]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post Your Gym Selfies Might Be Used Against You in Court appeared first on Law Street.

Net neutrality is back on the scene in a big way this week. The Federal Communications Commission (FCC) recently announced new rule proposals that take a middle-of-the-road approach. Rather than unequivocally endorsing a neutral internet, the FCC proposal allows content providers to give preferential treatment to certain traffic, as long as the preferred access is on “commercially reasonable” terms.

Net neutrality refers to the idea that the internet should remain open and free. Currently, internet service providers (think Verizon or Time Warner Cable, for exampled) cannot charger higher rates to certain content providers. Thus, for example, video-on-demand services offered by Verizon or Time Warner have to run at the same speed as sites like Netflix; the service providers cannot slow the internet speed when users use Netflix or charge Netflix a higher rate for equal internet speed.

While only a proposal, the FCC approach has scared proponents of net neutrality. Allowing regulation of the internet on “commercially reasonable” terms has an inherent vagueness that will likely cause service providers to progressively push the boundaries of what they can or cannot do. The current proposal gives more power to internet service providers and chips away at the framework of a neutral internet.

Alternatively, the FCC views the proposal as a more realistic compromise likely to settle the intense issue for a time. Net neutrality represents only one of many possible business models of internet monetization. Service providers argue that competition will work as a necessary check on abusive behavior, and that allowing regulation of internet speed will enhance the quality of user experience by providing higher internet speed for sites that are more demanding. Finally, service providers note that someone gets the windfall from whatever policy the FCC implements — net neutrality allows content providers to freely use the internet at the cost of service providers. Why should service providers eat the cost rather than content providers?

The FCC Proposal has raised heated debate about the merits of net neutrality — in a single day nearly 70 organizations with skin in the game lobbied FCC officials on the matter. It will certainly be interesting to see and experience the new internet as a result.

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Imran Ahmed is a law student and writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [Barrett Buss via Flickr]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

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Attention companies using Pinterest as part of your marketing strategy: proceed with extreme caution. The popular social network, or “copyright infringement machine” as one commentator calls it, has turned into a platform where companies must tread carefully or face legal consequences.

Recently, Cole Haan, a fashion label specializing in footwear, ran a seemingly innocuous contest on Pinterest that ended up catching the attention of the Federal Trade Commission (FTC). The brand created the “Wandering Sole” campaign and sought to use Pinterest to market it. Thus, Cole Haan asked Pinterest users to create boards with their favorite Cole Haan images from the company’s own “Wandering Sole” board, and for the users to pin their favorite places to wander. Users who participated received the chance to win a $1000 cash reward.

win a $1,000 shopping spree from @colehaan ! share where your sole's are going to wander – http://t.co/m4cK5RCcDM

— Jennifer Chong (@jchongstudio) May 26, 2013

This contest — a popular type in the social media marketing world — may not seem detrimental; however, federal law provides that a company must make clear that it has a financial relationship with the individuals endorsing it. It seems that Cole Haan accidentally used Pinterest as a vehicle for illicit advertising. A user coming across the images pinned as part of the contest had no way of knowing that the images were in the running for a prize of $1000. In order to legally run the campaign, Cole Haan would’ve had to disclose the financial incentive.

Specifically, the FTC made four conclusions regarding the Wandering Sole campaign:

1. Pinterest users’ pins featuring Cole Haan images were endorsements. (‘Endorsement’ is a legal term of art, and the FTC has its own guidelines regarding the use of endorsements).
2. Individuals using Pinterest who saw the pins and boards relating to Cole Haan’s campaign had no reasonable way of knowing that the pins were motivated by a chance to win $1,000.
3. Cole Haan did not take appropriate steps to make it clear to average Pinterest users that the pins were part of a campaign with a $1,000 cash reward.
4. Cole Haan did not instruct participants in the campaign to disclose that their activity stemmed from Cole Haan’s campaign, not their own unsolicited Pinterest activity.

Importantly, the FTC decided not to persue enforcement action despite suggesting that Cole Haan violated federal policy. Basically, the FTC wrote a letter reprimanding Cole Haan, but did not financially punish the company or pursue any legal action. This likely results from the novelty of these issues. Companies using social media sites often accidentally violate federal laws since the platforms create new user experiences that do not perfectly cohere to the world the laws originally intended to govern. This is something we are bound to see a whole lot more of until the laws catch up with technological innovation.

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Imran Ahmed is a law student and writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [afunkydamsel via Flickr]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post Are You Sure You Want to Pin That? appeared first on Law Street.

I was recently scanning YouTube for content on Daniel Day-Lewis and I came across his best actor Academy Award acceptance speech for Lincoln in 2013. While watching the clip, I noticed something odd. Take a look a the first minute or so and see if you notice anything a bit off.

Notice anything? If you thought it was strange that there were no clips of the Oscar-nominated performances, then you’re in the good company of yours truly. Editors at the Academy of Motion Picture Arts and Sciences removed the film footage of the actors’ performances before uploading the clip to YouTube. So, if you want to witness a short example of these excellent performances, you’ll have to settle for a few still shots of the actors in character instead.

The reason for this excising lies in contract law. When The Academy wants to show the short video montages, they must first contract with the owners of the films for permission to show the clips. These contracts usually grant The Academy the right to show the footage at the Oscars ceremony and for a one-year period after the airing of the show. Since YouTube videos generally survive longer than a year, The Academy must cut the films when they put the video up on YouTube in order to comply with their contractual obligations.

Mostly, I just wonder what purpose the one-year rule serves. I speculate that the rule emerged before sites like YouTube existed. Copyright owners of the films being nominated figured that they would grant the Oscars the right to use a video montage of their films during the show and probably created a one-year window as a generous allowance in case The Academy wanted to play re-runs. In the age of YouTube, few reasons exist why the copyright owners hesitate to grant the Oscars the right to replay the video montage forever. The Oscar video montages carry no risk that a user can somehow pirate the film and watch it illegally. Rather, the video montage appears as free publicity, inducing the viewer to seek out the film. Yet, copyright owners still insist on limiting the right to show the video montage.

The harm done to a user might be small when searching for Oscar acceptance speeches, but other shows rely more heavily on clips. For example, on a series like “Inside the Actor’s Studio,” James Lipton curates the clip selections, and they play an important part in understanding the breadth and excellence of the featured actor’s work. If you watch a YouTube version of Inside the Actor’s Studio, you will usually notice that the clips have been removed just like in the Oscars. Moreover, your experience will suffer as a result of this cropping of content.

Copyright owners should realize and respect that content has a longer shelf life in the internet age. Many instances arise where these copyright owners should grant longer licenses. Not doing so harms the user experience while doing little to prevent copyright violations.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [Martin Fisch via Flickr]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post Copyright is Killing the Internet Viewer’s Experience appeared first on Law Street.

“A friend who dies, it’s something of you who dies.” – Gustave Flaubert

Death is serious, and in contemporary times, social media companies must choose how to incorporate the major life event into their platforms. A sense exists that death, so heavy a subject, must be treated differently; normal commercial interests should subside and companies should develop their policies appropriate for its gravity. The choice of how to deal with death is not self-evident. Social media sites have many options: they can abolish deceased person’s site; leave the site in the state it existed just before the deceased person died; or create some alternative site format for those who have passed away. The choice requires a near-philosophical inquiry into how the platform can best deal with the gravity of death.

Facebook recently decided to change their policy regarding deceased users, and some feel it was done in a duplicitous and covert fashion.

The policy change weakened the privacy settings applied to those who pass away. For deceased Facebook users who had open privacy settings prior to their death, Facebook now allows their pages to remain accessible to the public at large. This is a departure from their previous policy, which restricted access to friends only following a user’s death.

This decision has important privacy considerations. For example, the average Facebook user changes his or her privacy settings throughout the his or her time on the site. Why should the privacy settings utilized right before a user’s death be immortalized for all time? Couldn’t Facebook have allowed users to make the decision of their privacy settings in the case of death? What gives Facebook the right to make that decision?

Instead of addressing this policy change head on, Facebook decided to write about it in a post entitled, “Remembering our Loved Ones.” The title appears too sentimental to merely apply to the shift in privacy rights. Instead, the post also deals with a new feature that Facebook now makes available to family members of a deceased Facebook user: the “Look Back” life montage video.

But was Facebook really being sincere? Two separate issues are being conflated. In Facebook’s post, the company seemingly couched a significant privacy policy change under an appealing and overwhelmingly correct decision to create a “Look Back” video. While these both relate with death, I wonder if they necessarily needed to be mentioned in the same post? Did Facebook exploit the tear-jerker YouTube video to obfuscate any potential backlash movement against the softening of user privacy?

An analysis of the Facebook post illuminates a potential calculating craftiness regarding how they reveal their information about the diminishing privacy rights.

1. The post begins by writing about the company’s commitment to improving user experience and how users contact Facebook to memorialize the accounts of deceased loved ones.

As members of Facebook’s Community Operations team, we talk to people who use Facebook every day and we’re committed to making their experience better. Some of the people who reach out to us are grieving the death of a friend or family member, and they usually ask for their loved one’s timeline to be memorialized.

2. The post then delves into the fact that the company seriously contemplates the issue of how to deal with the death of a Facebook user. They acknowledge that such questions have “no easy answer” and they wonder if they are “honoring the wishes” of the deceased.

3. Then, they finally introduce their discussion about the change in privacy policy.

We’ve decided to make an important change to how we preserve legacies on Facebook. Up to now, when a person’s account was memorialized, we restricted its visibility to friends-only… Starting today, we will maintain the visibility of a person’s content as-is. This will allow people to see memorialized profiles in a manner consistent with the deceased person’s expectations of privacy. We are respecting the choices a person made in life while giving their extended community of family and friends ongoing visibility to the same content they could always see.

Notably, the “important change” referenced was not described as an important change in privacy rights, but as an important change in how the company “preserves legacies on Facebook.” The company uses softer word choice to distract from what is actually happening.

Death deserves frank speech, but Facebook seems to evade the discussion. Facebook states that the policy change will respect the deceased person’s “expectations of privacy,” but does not substantiate why. Rather, the company merely announces that they are respecting the choices a person made in life. This is spurious reasoning. When a Facebook user makes a privacy change while alive, the user does not contemplate their death and the fact that such a setting might still apply at that time. They do not connect why a person’s decisions while alive reflect what he or she would want when deceased.

Instead of probing deeper into the issue, the rest of the post introduces the agreeable, supportable “Look Back” video policy. The new feature has little connection with the change in privacy settings and takes the reader away from the issue. The universally appealing feature is sandwiched between privacy changes with suspect reasoning and artful dodging of the issue.

I do not necessarily disagree with the change in policy, but I find it disconcerting that Facebook employs skilled writing techniques to avoid a frank discussion on the issue. Humans generally drop all guises in the midst of death. Social media sites should do the same. Facebook argues that their new policy is consistent with a user’s “expectation of privacy,” but they present the change in a manner inconsistent with a user’s “expectation” of honesty.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [Tim Wayne via Flickr]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post Facebook Controls Your Privacy Settings Even After You Die appeared first on Law Street.

Revenge porn is now legal in New York. The issue occurs when a person posts nude photographs of an ex-lover on the internet as a way to embarrass and degrade the ex. The photographs are often exchanged willingly while love blossoms, but when that same love wilts, the images change from intimate gifts to dangerous weapons that can seriously damage a person’s reputation.

For example, in the New York case People v. Barber, the defendant tweeted a nude photograph of his ex-girlfriend and shared it with her sister and employer. While the court acknowledged the “reprehensible” nature of the defendant’s conduct, it nonetheless found him innocent of any crime.

The problem concerns the specific language of New York’s law. In most states, you cannot take a nude photograph of a person without that person’s knowledge or consent. This rule does not apply, however, to situations where a person willingly gives a naked photograph to another. The New York court latched onto this distinction and dismissed the case.

While this particular dismissal was based on the language of the statute, some critics wonder if legislation specifically targeting revenge porn might violate freedom of speech rights. The American Civil Liberties Union opposed a draft to California’s revenge porn bill on the grounds that “the posting of otherwise lawful speech or images even if offensive or emotionally distressing is constitutionally protected. The speech must constitute a true threat or violate another otherwise lawful criminal law, such as stalking or harassment statute, in order to be made illegal.” Those who oppose a statute criminalizing revenge porn highlight the fact that the photographs were freely given and are, in essence, the property of the receiver to do as he wishes.

In contrast, another angle to the problem concerns the ubiquity and permanence of the internet and anything posted to it. Search engines allow anyone to instantly access everything ever posted about a person. Employers, colleagues, and friends all have the ability to discover information about you posted online. This makes a naked photograph in the hands of a scornful ex-flame particularly dangerous and powerful. Put simply: there is no real way to remove something from the internet, and search engines organize what is on the internet with terrifying accurateness and efficiency. An individual risks permanent reputational damage from revenge porn.

While anyone can suffer from revenge porn, the pernicious practice more often negatively affects women. Drafters of revenge porn statutes must also analyze this issue focusing on how it relates to sexual harassment and the discrimination of women. The issue does not affect men in the same way, and drafters need to scrutinize whether or not their stance on revenge porn has any latent sexist, misogynistic, or patriarchal impulses.

Revenge porn constitutes a particularly modern problem. Numerous themes percolate, including changing mores, technological advancement, sexual harassment and discrimination, freedom of speech, and the chaos of unreciprocated love. In New York, the court has signaled to the legislature to fix the problem. Whether and how the state chooses to draft a statute speaks to which themes the state decides to value.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post New York Court OKs Revenge Porn; Will the Legislature Act? appeared first on Law Street.

The fact that James Dean died in 1955 hasn’t prevented his fans from following his active Twitter account. A passionate fan of the actor created the handle @JamesDean and maintains a sustained presence as his Twitter voice. Dean’s estate, however, took issue with this renegade appropriation and has sued Twitter for not shutting down the account, claiming it has to control how James Dean’s name and image are used. They argue that they are the rightful owners to the handle @JamesDean and should control its activity.

Interestingly, the operator of @JamesDean claims that this lawsuit represents an about-face from the estate’s previous policy. On June 16, 2010, @JamesDean sent the following tweet:

Twitter believes that the use of @JamesDean falls within their trademark policy, which permits users to create fan pages of a celebrity as long as the page is not misleading followers into thinking the account represents the official voice of that person. Ultimately, this case features parties with conflicting rights. The Twitter user can argue that he has a freedom of speech right to create a fan account for his or her favorite actor. James Dean’s estate can point to its intellectual property right to control how James Dean’s name is used.

If this case goes well for James Dean’s estate, it could unleash a cascade of litigation against Twitter by celebrities, dead and alive. Additionally, if Twitter caves to the pressure applied by James Dean’s estate and dethrones the user who controls @JamesDean, that could also set a precedent that encourages other celebrity estates to sue the company. Twitter will have a lot to lose if they unsuccessfully handle this lawsuit.

To its advantage, Twitter can demonstrate that they have policies in place to signal that an account is operated by the real celebrity or his or her estate. For example, Michael Jackson’s Twitter page has a check mark by his name indicating that the account is verified.

Twitter can argue that James Dean’s estate can create their own Twitter account with the verified check mark to proclaim that the account represents the actual voice of James Dean. The estate will appear petulant by maintaining that only the handle @JamesDean will suffice to protect their rights as owners of James Dean’s estate. James and Dean are both popular names – the argument would also mean that the estate can repossess the account of some unfortunate teen who shares the name of the famous star if the teen had @JamesDean as his handle. While it is unlucky that an avid fan created @JamesDean before the estate, their logic appears shaky when they can just create another handle as a verified Twitter account.

There is something unsurprising with James Dean being exiled from his own Twitter handle. It fits his renegade image – but his estate believes only he has the right to determine that.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured imaged courtesy of [Stephanie via Flickr]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post James Dean Sues Twitter From the Grave appeared first on Law Street.

Yelp suffered a crucial loss in a recent Virginia Court decision.

Hadeed Carpet Cleaning, a small business in Virginia, noticed a few negative Yelp reviews and did some investigation. The business claims that after studying their records, the Yelp complaints did not match any actual customer experiences in their books. Hadeed Carpet sent a subpoena to Yelp requesting the identities of the Yelp users who wrote the allegedly unfounded posts, but Yelp refused to comply with the subpoena and the case went to trial.

The Virginia Court of Appeals has sided with the small business and ordered Yelp to reveal the identities of the users. The court reasons that if the users who wrote the unfavorable comments were never actually customers of Hadeed Carpet Cleaning, then those negative reviews amount to defamation not worthy of any First Amendment protection.

Most commentators deride the decision for curtailing freedom of speech; yet, a longer look at Yelp’s litigation history illuminates why this ruling may help those harmed by Yelp.

Yelp has long heard the complaints of small-business owners who claim the company effectively extorts them for money. The common story often begins with a small business noticing a particularly negative comment on their Yelp page. Then the business discovers Yelp’s algorithm filtering out positive comments and thus making negative comments more prominent. Finally comes a sales pitch from a Yelp employee suggesting that the small business advertise on Yelp. Often, the sales pitch includes statements that advertising with Yelp will result in a better filtration process and the removal of negative reviews. Since an alluring Yelp page has a weighty impact on a business’ bottom, many business owners feel threatened by these solicitations.

Yelp has had to squash legal attempts to expose this allegedly coercive practice. In 2011, a class-action lawsuit was filed on behalf of all businesses who declined to advertise with Yelp or who advertised with Yelp in the last four years. The lawsuit claimed that Yelp “unlawfully manipulated the content” of a business’ Yelp page in order to push the business to pay for advertising. In that case, the Plaintiff, Levitt, alleges this story in their Brief:

Two days after Levitt’s conversation with Yelp’s employees – during which he declined to purchase advertising — six out of the seven 5-star reviews were removed from his business page leaving Levitt with an overall star rating of 3.5 stars. As a result, during the month of August, Levitt’s business Yelp page received only 158 page views as opposed to the 261 page views Levitt’s business experienced in July of 2009. Since then, Levitt’s business revenues experienced a decline that corresponded almost directly to the decline in page views.

The Brief outlines other stories with other businesses voicing a narrative that echoed Levitt’s tale about Yelp’s knavish advertising schemes. While Yelp managed to dismiss the lawsuit, that cessation did not help distance Yelp from their alleged aggressive sales practices. Their victory was more technical than substantive. In the lawsuit, the Plaintiffs recounted two exploitative tactics they claim Yelp engaged in: 1.) fabricating negative reviews; and 2.) manipulating a business’ Yelp page to highlight negative reviews and filter positive reviews.

On the first practice, the court dismissed the charge due to lack of proof, not lack of guilt. The court reasoned that businesses could not prove beyond speculation that Yelp actually authored any of the negative reviews that businesses claimed Yelp fabricated. This conclusion had undoubted truth because, up until recently, courts had not allowed businesses to subpoena Yelp about the actual sources behind reviews. Yelp had successfully been able to argue that anonymous users had privacy and freedom of speech rights that prevented access to their identity. If the allegations alleged against Yelp had any merit, Yelp crookedly used freedom of speech and privacy rights as a shield preventing any discovery about their practice of self-composing negative reviews.

The recent ruling in favor of Hadeed Carpet Cleaning has special importance for marking a change in this tolerance. Instead of bending to freedom of speech concerns, the court focused more on the right to protect one’s reputation. Thus, this ruling in Hadeed Carpet might facilitate a proper exploration of the complaints of small-business owners since the court has finally allowed a Plaintiff to learn the identity of dubious anonymous users – and, perhaps, that these users were Yelp employees. While businesses previously had no method to prove their allegations that Yelp penned negative reviews, the court’s ruling in Hadeed Carpet might finally give businesses some recourse.

This seems all the more important, since the second complaint against Yelp – that they filter their messages in a duplicitous manner – has little prospect of victory. In the 2011 class action lawsuit, this claim failed due to the Communications Decency Act (CDA), a Congressional statute that lets “interactive computer services” – like Yelp – edit and manipulate content posted on their website without any risk of liability.

The CDA emerged out of a desire to promote internet freedom and growth. Congress wanted to facilitate the success of websites like Twitter, Facebook, and Yelp by immunizing these sites from lawsuits brought because of the actions of a user on the website. Basically, if a Twitter user says something defamatory on Twitter – like when Courtney Love tweeted that her fashion designer was a former prostitute — the CDA posits that the defamed party can sue the Twitter user, but not Twitter. This allows websites like Twitter, Facebook, and Yelp to function without having the legal burden of monitoring everything that’s said.

Even if these websites have no legal burden to monitor, the CDA still wants to encourage some sort of filtration process to monitor and remove hate speech. Courts have interpreted the CDA to let websites like Yelp filter messages without any risk of liability if they fail to succeed in catching and removing any invective prose. Websites like Facebook have an incredible volume of information, and the CDA hopes to encourage some editing and filtering process even if it sometimes inevitably fails. Consequently, a website faces no liability for their choices to edit or filter content. If the allegations against Yelp have any merit, Yelp again contorts the intention of this policy for its own economic self-interest. Instead of merely filtering hate speech, the allegations contend that Yelp filters innocent, positive messages to induce companies to buy Yelp advertisements.

Importantly, the CDA immunizes Yelp from this practice and courts have said as much. For example, in the Dismissal of the 2011 Class Action, the Judge wrote: “Yelp’s alleged manipulation of their review pages – by removing certain reviews and publishing others or changing their order of appearance – falls within the conduct immunized by § 230(c)(1)” of the CDA. The court even says that the statute currently allows filtering and deleting of comments done with a “wrongful motive.” Even if businesses can prove Yelp filters comments with a wrongful motive, courts have held that the CDA allows websites like Yelp that privilege.

Thus, the ruling in Hadeed Carpet Cleaning has importance to businesses hoping to prove their allegations against Yelp. The CDA literally allows Yelp to manipulate a business’ Yelp page without any risk of liability. The only recourse available to businesses hoping to expose that Yelp extorted them is to prove that Yelp fabricates negative reviews. Such a practice would be a crime, and the best – and perhaps only — way to prove that is through learning the identities of users who post dubious negative reviews.

Importantly, Yelp has officially and repeatedly denied that they engage in this practice. It could just be that these businesses had the misfortune of encountering rogue Yelp sales associates who employ overzealous tactics to earn their commissions. Or, the story could have no truth at all. For now, the CDA and freedom of speech rights have prevented us from knowing.

The main takeaway, however, focuses on how we balance rights. In Hadeed Carpet the court determined that Hadeed’s right to protect its reputation trumped a Yelp user’s right to remain anonymous. These allegations against Yelp highlight how rights always have tradeoffs: if you allow absolute freedom of speech and privacy rights, you disallow any discovery about whether Yelp effectively blackmails businesses. Additionally, sometimes rights tradeoffs occur due to external factors. Might the court in Hadeed have known about the intractable immunity granted to Yelp by the CDA and consequently softened the freedom of speech and privacy rights its users enjoy?

No one actually knows if Yelp engaged in the practice of extorting businesses into buying advertisements. We do know, however, that the law would have allowed them to legally do it…at least before the recent ruling in Hadeed Carpet Cleaners.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [Steven & Courtney Johnson & Horowitz via Flickr]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post Feeling Extorted by Yelp’s Business Practices? Help May be on the Way appeared first on Law Street.

Be careful what you tweet because you might be sued for defamation. At least that’s what happened to Courtney Love in the first Twitter libel litigation to go to trial.

Love took to Twitter and publicly unloaded her anger and frustration over her former lawyer, Rhonda Holmes, tweeting that she was ‘bought off’ from bringing a fraud case over the estate of Kurt Cobain, Love’s late husband. Specifically, the tweet reads:

“I was f***ing devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off.”

Twitter literally means to make a light chirping sound, but Love’s lawyer did not take this tweet with a sense of levity. Instead, she sued Love for $8 million in damages.

While it may seem unusual to be sued for a tweet, this is not Love’s first costly Twitter session. Three years ago, she paid $430,000 in a settlement deal with her ex-fashion designer after Love tweeted that the designer dealt cocaine, engaged in prostitution, and committed assault and burglary.

In her current case, however, Love escaped unharmed. In her defense, Love claimed that she meant the tweet as a private direct message, but her inexperience with Twitter led her to accidentally post the tweet publicly. She claims that she quickly removed the tweet after posting it.

Her defense seems dubious for a few reasons. First, her actual tweet — “I was f***ing devestated [sic] when Rhonda J. Holmes esq. of san diego was bought off” — is a rather odd way to direct message someone. Secondly, that she quickly removed the tweet makes sense after recalling that she previously lost almost a half-million dollars over her tweets to her fashion designer. Her new set of lawyers probably closely monitored her Twitter activity and had her remove that tweet.

Nonetheless, the jury sided with Love, reasoning that she did not know that her tweet was false when she made it — a necessary element to proving defamation.

To celebrate her victory, Love fittingly turned to Twitter: “I can’t thank you enough Dongell Lawrence Finney LLP, the most incredible law firm on the planet. We won this epic battle. #justiceprevails.”

While Love is free to tweet, her case illustrates that although Twitter remains free to use, a misguided tweet might be very costly.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [Marie Havens via Wikipedia]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post Courtney Love is Free to Tweet appeared first on Law Street.

To the average internet user, the exact mechanics of the internet remain a complicated mystery. A certain abracadabra happens every time that I type a website into my browser and hit enter. How does the website suddenly show up on the screen? Where is it coming from? What exactly just happened?

This gap in knowledge facilitates easy exploitation by those with something to gain.

For example, take the Net Neutrality Act: since most people do not understand the concepts of net neutrality, most simply do not have an opinion. Both sides on the issue can say that their stance most serves justice, and the average internet user will not know who to trust.

The intuitive reader can probably guess who stands on either side: large internet providers — like Verizon or Optimum — stand against net neutrality, while hacker-types mostly advocate in favor of it. Maybe one can decide their own stance based on which affiliation they prefer?

But this still doesn’t resolve the ambiguity. Hackers are cool, but also kind of scary and potentially foul-smelling; mega internet-providers are cold and corporate, but it’s so cynical to believe that the oh-so-many people who work at these corporations can all push for a policy they know is wrong.

So, in order to understand whether or not you support net neutrality, we will need to understand the internet a little better. Don’t worry, things won’t get too complicated — even after writing this, I still kind of think the internet works via abracadabra.

What is happening when I type a website into my browser? With net neutrality, when you type a website into your browser, the internet service provider cannot block a website or discriminate with respect to the speed of service — i.e. allow certain websites to have faster service than others. Think of a highway: net neutrality says that internet providers cannot divide the highway into a fast lane and a slow lane. All websites travel at the same speed and an internet provider cannot cherrypick certain websites that receive preferential or detrimental treatment.

What do internet providers want? Internet providers argue that they do have the right to allow some websites to reach users at a faster speed than others. Providers say that if certain websites hog up bandwidth, internet providers should be allowed to charge these websites a greater fee for faster service. Additionally, they argue that the market will correct for any inefficiencies created by these discriminatory practices — if one internet service provider slows access to popular websites, the user will switch to another internet provider that does not.

What do net neutrality proponents want? Those in favor of net neutrality argue that an open internet cultivates innovation. For example, in a world without net neutrality, a company seeking to challenge Google would have to face the additional hurdles. Google can afford to pay for the fast-lane highway service while this new startup will likely have to try to compete using slower speeds. Additionally, those in favor of an open internet point to the potential abuse by internet service providers. For example, many internet service providers also offer On Demand video products which compete with Netflix and Hulu. Without net neutrality, these service providers can slow the access to Netflix or Hulu to try and push users into using their own products.

So, what do you think? Should the internet be a highway where all websites travel at the same speed or should there be a fast lane and a slow lane, with internet service providers charging a higher fee for fast-lane service? The choice will have tangible consequences on your internet speed, the ability of startup companies to compete, and how much you pay for access to many populate sites.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Featured image courtesy of [OpenMedia via Flickr]

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post What is Net Neutrality & Why Should You Care? appeared first on Law Street.