Children and the Internet

A Georgia seventh-grader created a fake Facebook profile that defamed a classmate, according to this Wall Street Journal story.   In middle school fashion (I am not looking forward to parenting through this period), a boy created a fake Facebook profile of a female classmate, used a “Fat Face” app to alter her appearance and posted “false, profane, and ethnically offensive information” on the page.

The school found out, punished the boy with in school suspension for two weeks and told his parents.  At home, the boy was grounded for a week.  Despite this punishment in school, the page stayed up for 11 months before Facebook finally took it down.

The girl’s family sued claiming the parents were negligent and contributed to the girl’s suffering.  Parents have money and insurance and make a better target than a seventh-grader in a lawsuit for damages.  The trial court dismissed the negligence claims against the parents in a summary judgment ruling.

On appeal, the court upheld the dismissal  of the claims related to the original creation of the fake profile, but wrote:

Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the [parents’] negligence proximately caused some part of the injury [the girl] sustained from [the boy’s] actions (and inactions).

You can read the full opinion here.

The court noted:

During the 11 months the unauthorized profile and page could be viewed, the Athearns made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin was charged with electronically distributing. They did not attempt to learn to whom Dustin had distributed the false and offensive information or whether the distribution was ongoing. They did not tell Dustin to delete the page. Furthermore, they made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted.

Georgia law is similar to the law in many states — parents are not simply liable based on the parent-child relationship.  Usually, there has to be some liability based on the parents’ alleged failure to supervise or control their child where there is a foreseeability of harm. Applying this standard the court wrote:

The [parents] contend that they had no reason to anticipate that [son] would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising [son]’s use of the computer and Internet account. The [parents]’ argument does not take into account that, as [son]’s parents, they continued to be responsible for supervising [son]’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile.

This appears to be the first published opinion dealing with parental liability for a child’s online behavior.  I have dealt with this issue at the trial court level, but usually resolve the issues rather than force minors to go through a public trial and discovery.  The unfortunate aspect is the case returns to the trial court and continues.  If only there were a teachable moment.

Stealing a theme from Morrison Foster’s Socially Aware blog post entitled “Forced to Cyber-Spy” about the case, when your kids complain that you don’t give them any privacy online – you can tell them that until they pay the homeowners’ premiums or the lawyers, you get to monitor their social media use.

The Texas Court of Criminal Appeals ruled in a 8-1 decision yesterday that the “Improper Photography and Visual Recording Act” is facially unconstitutional.  The case involved a guy who allegedly took pictures of kids at a water park.  You can read more here.

Before you say, you are not a creepy person taking pictures of random kids and therefore don’t agree or don’t care, if you believe photography is art protected by the First Amendment, you should care.

The Facts of the Case

The law provides, in relevant part:

 A person commits an offense if the person:

 (1) photographs or by videotape or other electronic means records . . . a visual image of another at a location that is not a bathroom or private dressing room: 

(A) without the other person’s consent; and

(B) with intent to arouse or gratify the sexual desire of any person.

Ronald Thompson was charged with twenty-six counts. Each count of the indictment alleges that appellant, “with intent to arouse or gratify the sexual desire of THE DEFENDANT, did by electronic means record another . . . at a location that was not a bathroom or private dressing room.”

We can all agree — creepy.

The Ruling

The first issue the court wrestled with was whether photography was conduct (subject to regulations) or speech protected by the First Amendment like other forms of art.  The court found that pictures, even bad ones, are expressive and therefore are subject to First Amendment scrutiny.   The court continued, “the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes” so the act of taking picture is also subject to First Amendment scrutiny.

The state reasoned, however, that the law regulates intent and therefore, even if considered speech, it can be regulated just like incitements to riot, threats or scams.  The court responded:

Sexual expression which is indecent but not obscene is protected by the First Amendment . . .  Of course, the statute at issue here does not require that the photographs or visual recordings be obscene, be child pornography, or even be depictions of nudity, nor does the statute require the intent to produce photographs or visual recordings of that nature. Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power.

The court then found the law “penalizes only a subset of non-consensual image and video producing activity—that which is done with the intent to arouse or gratify sexual desire” meaning it was a content-based regulation.  As I can hopefully teach my Media Law students (hint for the test), when there is a content-based law, it is subject to a strict scrutiny analysis which means a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest.  A regulation is “narrowly drawn” if it uses the least restrictive means of achieving the government interest.

Like most other laws subject to a strict scrutiny test, this one failed, too.  It was not narrowly drawn.

The Takeaway

Although well-intentioned, the law simply covered too much.  This law would allow a police officer to ask every photographer taking pictures of people in the public what their intent was.  If I was taking pictures of my kids at the park, the police could ask me why.  If I am doing it to show how nice my city is, I am OK.  If I am doing it because I am creepy, it is against the law.

As the court noted:

The statutory provision at issue is extremely broad, applying to any non-consensual photograph, occurring anywhere, as long as the actor has an intent to arouse or gratify sexual desire. This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street.

Having the police govern the intent of our photographs is not sustainable.

I am guessing our readers are not going to run out now and start taking creepy pictures because of this ruling.  But, it is comforting to know photographs are protected speech, the taking of photographs is subject to First Amendment analysis and the government does not have the right to ask me why I am taking pictures of people in public places.

With that said, we may not be thrilled this about this guy.  If he crosses the line, he could still get in trouble for child pornography, invasion of privacy, unauthorized use of likeness or other wrongs if he actually harmed any of the people he photographed or used them commercially.

Our Constitutional protections, however, often protect the people on the edges so the rest of us know we are secure.  Although the police may not be able to ask his intentions, if this guy is taping kids my kids at the park, I still can.

You can read the opinion here.

A frequent question we get is what can we do about the online posting about me?  Often times, the answer is not much.  Lawyers can only help when the online conduct crosses the line into a cognizable cause of action.  Figuring that out is the hard part.

The Threatening or Harassing Post

Is there an ex spewing hate against you on Facebook?  Is a disgruntled fan or customer telling the world what they would like to do you?  Many times, the First Amendment will protect their conduct.  Sometimes, however, the law can help.

Take for example, a “fan” of the New York Knicks who suggested the owner of the team needed to die with posts that included naked pictures of the poster with a gun.  The police arrested him.

Sports often bring out the worst.  I’ve seen some of it with my own sports teams with the Michael Sam story and the question of whether the Houston Texans will use the first pick on Johnny Football.

Most fan rants are protected by the First Amendment, but threats of immenint harm or immediate calls to illegal actions are not.   Jack Greiner of the Graydon Head Out of the Box Blog blog breaks down the law on threats versus free speech in this case here.  The oversimplification is that if a reasonable person would believe the speaker has an intent to cause actual harm, then it can become a threat and not mere protected speech.   Moreover, when the target of the threat is a sport figure or politician, it may not be realistic to think the person would actually act it out, but there are enough crazy people out there for law enforcement to take a close look at some of these cases.

In addition to threats, may states, like Texas, have online harassment laws.  Perhaps, your ex knows better than to make a physical threat, but continuously harasses you. In Texas, a person commits an offense if the person “uses the name or persona of another person to create a web page on or to post one or more messages on a commercial social networking site: (1) without obtaining the other person’s consent; and (2) with the intent to harm, defraud, intimidate, or threaten any person.”

It is also crime to: “send[] an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person: (1) without obtaining the other person’s consent; (2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and (3) with the intent to harm or defraud any person.”

Revenge Porn

The American Bar Association recently wrote an excellent article on revenge porn you can read here. For the uninitiated, revenge porn is when the ex publishes what were supposed to be private nude pictures for the world to see often including full names, addresses, phone numbers and links to social media profiles. There is a whole cottage industry bubbling up of websites who encourage posters to provide this information.

As a victim, you can bring civil claims like invasion of privacy, intentional infliction of emotional distress and copyright claims if you took a selfie because the copyright usually belongs to the photographer and not the subject. But, these claims are expensive to bring and there are no guaranties because a lot of people blame the victim for having nude pictures in the first place.

Meanwhile, it is hard to sue the websites where these pictures are downloaded because Section 230 of the Communications Decency Act gives immunity to websites based on claims related to user generated content.

California passed a law last month that seeks to punish “Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.”

Professor Goldman on his Technology and Marketing Law Blog points out the faults of the law which include: (i) it does not apply to selfies; (ii) it does not apply to redistribution or websites which could have Section 230 issues; and (iii) the difficulty in proving beyond a reasonable doubt the parties’ expectations of privacy or the intent of the accused.

While there are some class action lawsuits against some of the sites that encourage this behavior that we will keep an eye on, one of the best weapons may be to shine the light on the scum who engage in revenge porn using the same social media tools and the let the markets take care of the websites.

Civil Claims

Most of the examples so far deal with criminal complaints.  To do that, you need to get the D.A.’s attention.  What about a civil lawsuit?  What can you do if the police or the D.A. won’t act?

You can follow the lead of a woman who is suing Sprint for invasion of privacy, infliction of emotional distress and identity theft after a Sprint employee posted explicit pictures of the customer who turned in a phone for an upgrade.  You can read more about the case here.

Intentional infliction of emotional distress can be a tough case to prove and the invasion of privacy of laws differ in each state.

Parents are also taking to the civil courts to address cyberbullying.

Related Posts

For tips on handling consumer reviews, go here and here.

There has not been much activity on the blog because we have been engaged in a long copyright and misappropriation of trade secrets trial.  So, we share with you some of the articles we have been reading, but just haven’t had time to write about:

Bloggers entitled to same protections as journalists under the First Amendment.  The Ninth Circuit recently applied libel defense protections normally reserved to the “institutional press” to bloggers reasoning the First Amendment applies to all citizens and there has been a blurring of the lines between who and who is not a journalist.  You can read more about this important decision here.

We have our first Twibel verdict – no defamation in 140 characters.  In three hours, the jury returned a defense verdict saying Courtney Love did not libel her lawyers with a tweet that suggested her prior lawyers had been “bought off.”  The bad news is that during the trial Love stayed off of Twitter, and now, she is apparently back.  More here.

Yelp ordered to disclose identity of reviewers.  A court ordered Yelp to review the identify of seven “anonymous” reviewers who criticized a dry cleaning business in Virginia. The business claimed the reviews are fakes and do not match any of their records.  This is another example of how courts are trying to balance the interests of anonymous speech and a plaintiff’s right to combat defamatory speech.  More here.

Parents take to the court to combat cyberbullying.  Locally, there has been a lot of attention about a lawsuit filed by one set of parents against seven minors and their parents for libel and negligence.   More here.

Will there be more transparency regarding government requests for online data?   The Justice Department is relaxing the rules for technology companies like Google and Microsoft to disclose, in broad terms, the number of requests these companies receive from the government and the amount of data provided.  Tech companies have long reported the number or requests from state and non-national security related requests from the federal government, but this will be the first time they can release general information related to national security letters.  If the numbers are surprising, this could lead to even more push back against the government surveillance programs.  More here.

Supreme Court to consider online re-broadcasting case.  The U.S. Supreme Court will weigh in on the rights to re-transmit broadcast programs via the internet.  Aereo receives over the air broadcasts the old fashion way in a warehouse and then sends them to paid subscribers devices.  The broadcasters are arguing that Aereo is violating the “public performance” copyrights to the programming.   Aereo says what they are no different than the users receiving the digital signals on their own devices.  Both sides wanted guidance from the high court and this is one worth watching.  More here.

Everyone supports the prevention of sexual predators texting illicit material to people under 17.  Everyone knows that revenge porn is a scourge on public decency.  But, can the law do anything about it?  Should it?

Texas Throws Out Law Banning Explicit Online Communications With Minors.

Yesterday, the Texas Court of Criminal Appeals (our highest court that hears criminal cases) reversed the conviction of a 53-year-old man who was charged with the third degree felony of communicating in a sexually explicit manner with a person whom he believed to be a minor with an intent to arouse or gratify his sexual desire.  You can read about the case here and read the court’s decision here.

The overturned law, Texas Penal Code 33.021(b)(1) states:

A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

To be clear, you cannot solicit a minor for sex (conduct), but sending indecent, but not obscene materials (protected speech) is not illegal.  The court said criminal laws “may protect children from suspected sexual predators before they ever express any intent to commit illegal sexual acts, but it prohibits the dissemination of a vast array of constitutionally protected speech and materials.”  The court also noted there are several other statutes that criminalize other inappropriate conduct with minors.

For the constitutional lawyers out there, the court determined the  “sexually explicit communications” provision is facially unconstitutional because it is content-based speech regulation that could not withstand the strict scrutiny analysis.  Under that test, there needs to be a compelling state interest and the restriction on speech must be narrowly tailored.

While there is a compelling state interest to protect minors from sexual predators, the law covers merely indecent speech which is constitutionally protected.  In light of the many other laws that protect children (solicitation, child pornography, obscenity, harassment), the court said the restriction was too broad.

Subsection (b) covers a whole cornucopia of “titillating talk” or “dirty talk.” But it also includes sexually explicit literature such as “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cressida.” It includes sexually explicit television shows, movies, and performances such as “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl, and Miley Cyrus’s “twerking”* during the 2013 MTV Video Music Awards. It includes sexually explicit art such as “The Rape of the Sabine Women,” “Venus De Milo,” “the Naked Maja,” or Japanese Shunga. Communications and materials that, in some manner, “relate to” sexual conduct comprise much of the art, literature, and entertainment of the world from the time of the Greek myths extolling Zeus’s sexual prowess, through the ribald plays of the Renaissance, to today’s Hollywood movies and cable TV shows.

*I will leave it for someone else to determine whether this is the first reference to “twerking” to make it into case law — a sign that the fad needs to go.

The prosecutors say they may appeal to the U.S. Supreme Court.

Revenge Porn – a perplexing topic for legislators

The American Bar Association recently wrote an excellent article on revenge porn you can read here.  For the uninitiated, revenge porn is when the ex publishes what were supposed to be private nude pictures for the world to see often including full names, addresses, phone numbers and links to social media profiles.  There is a whole cottage industry bubbling up of websites who encourage posters to provide this information.

As a victim, you can bring civil claims like invasion of privacy, intentional infliction of emotional distress and copyright claims if you took a selfie because the copyright usually belongs to the photographer and not the subject.  But, these claims are expensive to bring and there are no guaranties because a lot of people blame the victim for having nude pictures in the first place.

Meanwhile, it is hard to sue the websites where these pictures are downloaded because Section 230 of the Communications Decency Act gives immunity to websites based on claims related to user generated content.

California passed a law last month that seeks to punish “Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.

Professor Goldman on his Technology and Marketing Law Blog points out the faults of the law which include: (i) it does not apply to selfies; (ii) it does not apply to redistribution or websites which could have Section 230 issues; and (iii) the difficulty in proving beyond a reasonable doubt the parties’ expectations of privacy or the intent of the accused.

While having the intent to cause severe emotional distress may avoid First Amendment scrutiny, over broad laws would cover the publishing of Anthony Weiner’s infamous photos. Here is a Wired article by Sarah Jeong arguing that criminal laws may not be the answer.

While there are some class action lawsuits against some of the sites that encourage this behavior that we will keep an eye on, one of the best weapons may be to shine the light on the scum who engage in revenge porn using the same social media tools and the let the markets take care of the websites.

UPDATE – NOVEMBER 1 – Ask a question and the Internet answers.  Professor Goldman directed me to one of his earlier tweets:

 

There are two bills (SB 568 and SB 501) working their way through the California Legislature that may require social media sites to erase the content of minors.

Oops . . . I shouldn’t have posted that.

California Senate Bill 568, which has already passed the Senate, would allow minors to request websites to remove that picture the teen thought would be awesome to post at 2:30 in the morning, but no longer looks good while you are applying for jobs or a spot at Harvard.  It only applies to content actually posted by the minor and not those pictures posted by the teen’s friends who have less scruples.

Before minors celebrate by temporarily posting offensive jokes or pictures, the bill wisely provides that there is no guarantee removal by the initial website ensures complete elimination of the materials from the entire web.  The law states the removal process:

does not ensure complete or comprehensive removal of the content or information submitted to or posted on the operator’s Internet Web site, service, or application by the user.

The existing federal COPPA regulations provide for a similar removal process of content for children under 13 by the parents, but this law would force websites to add the process for those up to 17 and allow the request to come from the minor.  Considering most social media reputational harm is likely to happen in college (let’s just say I’m glad I went through college before smartphones and social media), I am sure there are some who like this to be law for people of all ages?

And now, a word from our sponsor.

Another interesting part of SB 568 prohibits websites from marketing a product or service to a minor, if the minor cannot legally purchase the product or participate in the service in the State of California.  This prohibition applies to all sites and apps “directed to minors” or if the operators “has actual knowledge that a minor is using its” service.

This “directed to” or “actual knowledge” is also a similar COPPA concept which is why certain sites like Facebook do not allow users under 12, but do allow users 13 and above.  Because Facebook has actual knowledge of its users between 13 and 17, it would not be allowed (or possibly allow others) to market alcohol or possibly even R-rates movies.

Dude, my mom erased my PII!

California SB 501, meanwhile, would require websites to remove personally identifiable information about minors upon the request of the minor OR the parent within 96 hours of the request.

As opposed to the first bill, this one would only apply to a “Social networking Internet Web site” which is defined as:

an Internet Web-based service that allows an individual to construct a public or partly public profile within a bounded system, articulate a list of other users with whom the individual shares a connection, and view and traverse his or her list of connections and those made by others in the system.

Why do I care?

These bills are not likely to become law in the next couple months (S.B. 568 would not go into effect until January 1, 2015).  Even if you are not running Facebook, you should care.  To the extent you advertise on social media adult products or services, you need to pay attention and be prepared for any changes.

If you have a website “directed” to minors or with actual minors using it, the law will require certain disclosures and procedures.  Simply failing to have the listed disclosures can get you in trouble.  You will have to be careful in how you accumulate and store information so that you can respond to requests timely to avoid related civil penalties.  Perhaps, between now and when (or if) these bills become law, you will have to consider what value the 13-17 year old market means to you in light of these changes?

Even if you are so uncool that your site does not want to deal with teens (and won’t be deemed “directed” towards teens based on your content), you should at least adjust your terms of service to prohibit use by anyone under 18 to avoid having to deal with these proposals.

Google and Facebook are fighting this law, so perhaps there will be some changes or they will die.  For more on these bills and the implications, read the Privacy and Security Matters Blog.

 

We continue our video series on the Children’s Online Privacy and Protection Act with the basic guidelines the Federal Trade Commission lists to make sure you are complying with COPPA.

You have to excuse the interruption in the middle of the video for the break regarding CLE verification code which you can ignore.

 You can also read my overview of COPPA.