Social Media Litigation – Part II

Social media litigation can be caused or initiated for various reasons related to privacy violations, online defamation, internet harassment, contractual disputes, and intellectual property violations.

Privacy violations take place when a company does not adhere to its terms of use or privacy policy. The terms of use and privacy policy on a website constitutes a legally-enforceable contract. The terms and conditions should be carefully read by visitors because the continued use of the website may constitute implied consent even if the website doesn’t require clicking on a “I Agree” box. Stated otherwise, if you visit a website, you can be bound by its terms and conditions.

Online defamation takes place when a false factual statement, that is not privileged, is published and damages the victim’s reputation in the community. The statement must be a fact and not an opinion. There are several defenses to defamation such as truth and absolute or qualified privilege. Truth is an absolute defense to defamation. According to Civil Code Section 47(a), a privileged publication or broadcast is one made: (1) in the proper discharge of an official duty; (2) in any legislative proceeding; (3) in any judicial proceeding; (4) in any other official proceeding authorized by law; or (5) in the initiation or course of any other proceeding authorized by law and reviewable by mandamus. The concept of “qualified privilege” applies to employers under the following conditions: Employers can make statements about their employees as long as the statement is not malicious and was made to third parties with a common interest in the subject matter. Malice can be proven by showing ill-will, hatred, or lack of reasonable grounds when the statement was made to a third party.

Internet harassment includes a course of conduct that is intended to alarm, annoy, or intimidate the victim for no legitimate purpose. The course of conduct is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose such as following or stalking, making harassing telephone calls, or sending harassing correspondence by any means such as the use of public or private mails, interoffice mail, facsimile, or email. Also, constitutionally-protected activity is not included within the meaning of “course of conduct.”

Contractual disputes can take place where an existing agreement is violated by one of the parties. The contract may be for search engine optimization between a business owner and third-party service provider. The contract usually includes certain terms and conditions that describe the parties’ rights and responsibilities. So, for example, if one party fails or refuses to comply with the contractual provisions, then the non-breaching party may initiate a legal action. Also, in some cases, the contract includes a mandatory arbitration clause which requires the parties to engage in arbitration before instigating a legal action.

Intellectual property violations take place when there is a valid and enforceable intellectual property right. In general, intellectual property includes trade secrets, patents, trademarks, or copyrights. There are state and federal laws that would apply to intellectual property violations.

The California Uniform Trade Secrets Act (codified under Civil Code §§ 3426, et seq.) defines “trade secrets” as information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The United States Copyright Act (codified under 17 U.S.C. §§ 101, et seq.) is a body of law that outlines the copyright owner’s rights and responsibilities. The Lanham Act (codified under 15 U.S.C. §§ 1051, et seq.) is the federal law that governs trademarks, service marks and unfair competition. Finally, for patents, Article I, Section 8 of the United States Constitution, grants Congress the power to promote the progress of science and useful arts by securing for limited times to authors/inventors certain exclusive rights. Also, patents are solely governed by the federal Patent Act.

Our law firm has been prosecuting and defending legal actions in state and federal courts for several years. We are ready to assist our clients in matters related to social media litigation. Please contact our law firm to speak with a social media litigation attorney at your earliest convenience.