Monthly Archives: May 2011
When I log on to facebook, it is not uncommon for me to see status updates on facebook which read “Work sucked to day”, or “I hate my job”. It’s a bad economy, people do what they need to do to survive, including taking jobs that are less than ideal. I have had many jobs that I have hated, from cleaning musical instruments at a music shop, to handling packages at a distribution center. Fortunately for me, all of those jobs were before the advent of facebook, so when I complained about work, it was usually over a beer at a bar with my buddies. In Buffalo, New York, employees of Hispanics United of Buffalo complained about working conditions on their facebook accounts. Their employers were none too pleased, and in the end, it cost them their jobs, until the National Labor Review Board steps in. From The Wall Street Journal:
In the latest complaint, an employee of Hispanics United who was scheduled to meet with management about working conditions posted on Facebook a co-worker’s allegation that employees didn’t help the nonprofit’s clients enough, the NLRB said. That post drew responses from other employees who defended their work and blamed conditions such as work loads and staffing issues.
When Hispanics United learned about the postings, it discharged the five employees who participated, claiming their comments were harassment of the employee originally mentioned in the post, the NLRB said. The NLRB said the Facebook discussion was “protected concerted activity” under the National Labor Relations Act.
The position of the National Labor Review Board historically is that labor law allows employees to discuss the terms and conditions of their employment with others. Apparently, this now includes discussing by means of social media sites. The NRLB is coming to grips with the changing world brought to us by the internet and social media. Today, maybe facebook is becoming the new bar where we complain about our jobs, except it is now BYOB, and you better not spill your drink on your keyboard, a costly party foul.
The final hearing before an administrative judge is scheduled for June, 22.
DISCLAIMER: I understand the tone of the headline of this post. THIS IS NOT LEGAL ADVICE. DO NOT SAY BAD THINGS ABOUT YOUR EMPLOYER ON FACEBOOK. Please say only nice things about your employer on facebook.
Yelp is a services review site where user can post reviews of businesses from restaurants to attorneys (I love all my clients very very much btw). Reviews can anonymously post anything they wish any business on this site. In general, Yelp tends to be fair. I have been involved in one incident where a company posing as a reviewer posted negative reviews about their rival company. Upon learning of the situation, Yelp removed the negative postings in a timely manner.
In this case, a reviewer posted a negative review stating their son was lightheaded after receiving anesthesia at the dentist office, and stating he received a filling containing lead. The dentist alleged emotional distress from the review. Unable to get to the reviewer, the dentist went after Yelp. The California court of appeals dismissed the case under California’s Anti-SLAPP law.
What is a SLAPP Lawsuit?
SLAPP is an acronym meaning “Strategic Lawsuit Against Public Participation”. Originally it referred to lawsuits by individuals, companies, and organizations for defamation and other suits intended to intimidate individuals from coming forward and criticizing them or their activities. Often times, these lawsuits had little merit, but were designed to cause defendants to incur large legal fees making them less likely to say anything negative in the first place. In order to prevent SLAPP lawsuits, states enacted “Anti-SLAPP” legislation which are supposed to limit SLAPP lawsuits by increasing their likelihood of dismissal before trial, providing for a quick and inexpensive dismissal to SLAPP lawsuits. They mostly by shifting burdens of proof. In anti-SLAPP motion, all the defendant has to do is show that the activity complained against was consitutionally protected, namely Free Speech. The burden shifts to the plaintiff to show that they have a more than reasonable chance of prevailing. If the judge denies the anti-SLAPP motion, the defendant can appeal, but if it is dismissed, the defendant is entitled to legal fees from the plaintiff. In general, the law makes SLAPP lawsuits an economically negative option.
In this case, because the lawsuit was dismissed vis-a-vis an anti-SLAPP motion from Yelp, the dentist plaintiff must pay Yelp the legal fees incurred in defending against the suit, $81,000 here. The irony is the initial legislation was supposed to protect the little guy from attacks by the big guy, but the law is a double edged sword which supposed to affect everyone equally. Here the little guy has to pay the big guy $81,o00. Legislator beware.
The once dead Combating Online Infringement and Counterfiet Acts (COICA) has been resurrected under the less controversial, more marketable and catchy acronym, “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act or, “Protect IP Act”. In its current form, it appears to cover the same material as the old act. It is proposed by the same Senator, Patrick Leahy. It is backed by the same groups who own a large amount of copyrighted material, hollywood, and the music industry. It is opposed by the same groups who have the most internet presence, google and youtube, and by internet liberty organizations like the Electronic Frontier Foundation.
But what does the bill do?
The most controversial provision of COICA, requiring broadband providers to block access to targeted sites, does not appear to be in the bill. It seems the bill targets only the sites themselves, but the end result is the same, pulling the plug on websites that either sell counterfeit goods, or give free access to copyrighted materials. This means that the government can pull the plug on sites like “wikileaks” if they provide free public access to copyrighted material.
Still opponents still charge that the bill amounts to government censorship of the internet. Google has decided to fight the bill. Google chairman Eric Schmidt is quoted in the UK paper The Guardian, “If there is a law that requires DNS [domain name systems, the protocol that allows users to connect to Web sites], to do X and it’s passed by both houses of Congress and signed by the president of the United States and we disagree with it, then we would still fight it…If it’s a request the answer is we wouldn’t do it, if it’s a discussion we wouldn’t do it.”
It is unclear what chances the bill has for passage.
California is debating a law which would require social networking sites to keep all your information “private” by default. Currently, facebook has “public” as your default setting, meaning all the information your post is public, until you go into the privacy settings and modify your profile to your preference. The bill, California Senate Bill 242, would reverse this, making all information private by default.
According to “All Things Digital“, the law, proposed by Senate Majority Leader Ellen Corbett (D-San Leandro) would have the following effects:
The proposed law, SB 242, would require social networks to do the following for California users:
- Establish default settings that prohibit the public or private display of anything other than a user’s name and city without their consent.
- Require new users to pick privacy settings during the registration process.
- Write their privacy options “in plain language” and display them in an “easy-to-use format.”
- Remove personally identifying information, including photos, within 48 hours of a user’s request.
- Pay up to $10,000 each time they fail to do any of this.
A previous version of the bill applied to children under 18, but a revision earlier this month made it much broader. It was approved by the Senate Judiciary Committee last week.
Should this law pass, it will have a large impact on social networking. One of the major advantages of having a public default setting is that it automatically opens up the user into interpersonal communication between users. This is one of the reasons why facebook has had a much larger social communication impact that other sites like linkedin.com, which has a much more private default setting.
The law also speaks to the nature of the internet itself, which cannot be confined by state, or even national boundaries. It would be very difficult to create a “California” and other state specific privacy settings on a social network that has international impact. Imagine having to set up privacy settings for every state in order to comply with state specific laws. In all likelihood, facebook would have to make the California restrictions apply to everyone, in order to avoid complications of having different legal standards for every jurisdiction.
Lastly, the law assumes that facebook users are unaware of privacy settings and automatically assumes that users will not take proper procautions to protect their privacy to their own standards. Such laws, instead of protecting us, assumes that we are not competent to set up our own protection
I wish legislatures would worry more about facebook spam, which users do not control, than privacy settings which they do control.
For more than a decade, the internet has been seen as a zone of virtual tax free commerce. This stems from a legal regime that was, surprising, before e-commerce changed the way we do business. In the 1992 case of Quill Corp. v. North Dakota , 504 U.S. 298 (1992), the Supreme Court ruled that there has to be some substantive nexus with the state in order for the state to collect taxes. In English, this means there the company has to have some sort of “presence” in the state. The court decision dealt with catalog companies selling goods over the phone or by mail. It was rooted in what has been called by Constitutional law scholars as the “dormant commerce clause”. Again the most simple way of putting it is, states cannot pass a law which negatively affects interstate commerce. Of course, at the time, e-commerce was not even a word in the English language. No one could have imagined the impact that the internet would have on commerce.
Companies which sell goods on the internet have been able to forgo the question of “presence” by having subsidiaries handle distribution. Many of the goods sold are also sold through independent affiliates and not by the companies themselves. Under the Quill, regime, this posed no major obstacle. But as all things legal are concerned, the political realities come to play. While the internet has had a positive impact on commerce as a whole, it has negatively impacted two areas, tax revenue, and brick and mortar retailers. The later has a powerful lobby in the form of the Retail Merchants Association.
With the influence of the Retail Merchants Association Texas has joined Illinois in enacting the Internet Sales Tax, also known as the “Amazon.com Tax” which taxes affilites in the state. In Illinois, Amazon.com has responded by removing all of their illinois affiliates. They are likely to do the same in Texas. As far as the validity of the law, if the Supreme Court follows the legal reasoning in Quill, I do not see how the the law can stand up to constitutional muster.
Still, my advice is, as always, pay your taxes until the government says otherwise.
Disclaimer (you will see this a lot on this site): It is impossible to give full, comprehensive, and complete legal over the internet, no matter what. Before relying on any information given on this blog, please contact an attorney and explain your specific situation. Any information provided on this site is for background knowledge purposes only and should not be considered legal advice.
Welcome to Ask a Cyber Lawyer
The purpose of this blog is to open the world of cyber law to the general public.
What is Cyber Law?
To put simply, cyber law is the law of computing on the internet. Within a period of twenty years, the internet has gone from newsgroups and gopher pages to the trillion dollar means of commerce and communication it is today. And, it is growing faster now than ever.
Because of this, almost every field of law now has a presence on the internet, from torts to commercial law. This blog will be an open communication dealing with all fields that connect the law and the internet.