600-900 word paper on Social Media and the Courts.

instruction:

Chapters 14 and 15 in your text cover legal and ethical issues in social media. Pick a court case discussed in either chapter, and research it a little further. Write a brief overview of the court case, which legal issues were brought into question (which laws were considered broken), and if you think the case was actually in violation of privacy or defamation laws. Please explain why or why you did not agree with the court ruling.

Chapter Fourteen
Legal Pitfalls of Social Media Usage
Copyright © 2011. Lexington Books. All rights reserved.
Lyrissa Barnett Lidsky and Daniel C. Friedel
Social media enrich public discourse by allowing more citizens than ever before to engage in
interactive public discussion and debate. Speakers use social media to communicate ideas and
information quickly to mass audiences of their choosing and even to form associations to
achieve important social and political goals. One reason, undoubtedly, that so many users flock
to social media is that they are ideal venues for spontaneous and informal communication with
seemingly sympathetic audiences. Social media foster a sense of connectedness among users,
so much so that conversations often are more akin to informal gossip than formal written
communication.
Spontaneity and informality sometimes play positive roles by encouraging robust discourse,
but they also can lead to disastrous legal consequences for unwitting speakers. American
society highly values free speech, but it also values civility, individual reputation, privacy,
physical and emotional security, and dignity. As more and more citizens use social media,
increasing clashes between these values are inevitable. Courts, policymakers, and law
enforcement officers are struggling to resolve these clashes both by adapting existing legal
remedies and developing new ones.
A number of social media users already have discovered the hard way that sharing
information on social media can subject them to civil lawsuits for defamation and both civil
and criminal penalties for invasion of privacy, cyberbullying, cyberstalking, and sexting. The
goal of this chapter is to use existing social media case studies to illustrate the legal pitfalls of
social media usage and explain how the law is adapting to address new problems generated by
social media usage.
DEFAMATION
Defamation law exists to vindicate society’s “strong interest in preventing and redressing
attacks upon reputation” (Rosenblatt v. Baer, 1966, p. 86). Defamation, when written, is libel;
when spoken, it is slander. A communication is defined as defamatory when it is false and
would tend to harm reputation. Accusations of dishonesty, criminality, and adultery are typical
defamatory statements. The cause of action for defamation is governed by state law, which
means that the exact elements a litigant must prove to recover money damages varies from state
to state. Typically, however, a person suing for defamation must prove, at a minimum, that a
speaker (or writer) published a defamatory statement concerning him or her. If the person about
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whom the defamatory statement was made is a celebrity or public official or the statement
concerns important public issues, constitutional protections for freedom of expression come
into play, and the defamation lawsuit quickly becomes complex and expensive to litigate
(Lidsky & Wright, 2004).
Courts have been adapting the principles of defamation law to the Internet for well over a
decade, but social media present new challenges. Even from a statistical perspective, social
media usage is likely to increase defamation actions simply by increasing the quantity of
speakers who can disseminate potentially defamatory statements to a wide audience. More
significantly, social media use may actually increase the chances for defamation to the extent
they encourage users to share spontaneously their most trivial observations, thoughts, and
feelings about their lives and the people surrounding them. Computer mediated communication
generally has been shown to have a disinhibiting effect on speakers (Joinson, 1998). Social
media may exacerbate this effect. Social media conversations sometimes have the ephemeral
feel of gossip among a close group of ostensibly like-minded friends, which encourages
speakers to believe that anything goes. Unlike gossip in the physical world, however, gossip
shared in social media can be copied and shared far more widely and in strikingly different
contexts than the speaker originally imagined or intended. Thus, it is not surprising that Twitter
and Facebook have already generated defamation lawsuits.
The first Twitter defamation lawsuit was set for trial in early 2011 and involved the singer,
actor, and celebrity, Courtney Love. Love apparently got into a business dispute with fashion
designer Dawn Simorangkir (a.k.a. Boudoir Queen) over some items of clothing Love had
given her to “transform” into designer dresses (Complaint at 4-5, Simorangkir v. Love, 2009).
Love, evidently unsatisfied with the Boudoir Queen’s work, refused to pay. To add insult to
injury, Love posted allegedly defamatory statements about the Queen on Twitter, MySpace, and
Etsy. Love tweeted, inartfully, that “police are more than ecstatic to pick [Simorangkir] up she
has a history of dealing cocaine, lost all custody of her child, assault and burglary. [sic]”
(Motion to Strike at 3, Simorangkir v. Love, 2009, p. 5). Love also wrote, “so goodbye
a****** nasty lying h******thief,” as well as “… my clothes my WARDROBE! oi vey don’t
f*** with my wradrobe or you will end up in a circle of sorched earth hunted til your dead”
(Complaint at 5, Simorangkir v. Love, 2009). Love made similar statements on MySpace and
on an Etsy feedback forum about Simorangkir. At the time the tweet went online, Love had an
estimated 40,000 Twitter followers, and more people certainly saw the posts on MySpace and
Etsy.
In response to Love’s “feedback,” the Boudoir Queen sued for defamation (libel) under
California law. Love’s attorneys initially responded to Simorangkir’s allegations by claiming
that Love was merely warning others about “Simorangkir’s pattern of criminal and bad faith
conduct” (Motion to Strike at 3, Simorangkir v. Love, 2009). Love’s attorneys argued that
social media outlets like Twitter and MySpace are public sites and that she acted in the public
interest by “warning other [consumers] of her nightmare experiences” (Motion to Strike at 3,
Simorangkir v. Love, 2009, p. 3). The California court that heard the arguments, however,
found that the dispute involved not an issue of public interest but rather “a discrete private
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dispute between Love and Simorangkir” (Heller, 2009, para. 3). The court also rejected the
argument that the defamatory statements concerned matters of public interest simply because
they are about Love, since “under that theory, no celebrity could ever be found liable for
defamation” (Heller, 2009, para. 10).
Besides being the first Twitter-based defamation suit to reach trial, the suit poses interesting
legal issues. As a result of American society’s commitment to free expression, a speaker
cannot be held liable for expressing her opinion. Opinion, however, is a legal term of art that
refers to statements that are unverifiable or cannot be interpreted as stating actual facts. For
example, hyperbole, which involves the exaggeration of facts for emotional effect, is not
actionable as defamation (Milkovich v. Lorain Journal, 1990). Thus, calling a doctor a
murderer is not an actionable defamatory statement if it is clear from the context that the label
“murderer” is attached because the doctor performs legal abortions to which the speaker is
opposed. In a 140-character tweet, however, the speaker has little chance to clarify her
meaning and provide relevant context that might establish her tweet as hyperbole. In Love’s
case, she is well known for her “over the top” behavior in general, perhaps indicating her
followers on Twitter might expect most of her tweets to contain hyperbole. Love also provided
a series of tweets that may have alerted some audience members to the context of her dispute
with the Boudoir Queen, but it is an open question whether the tweets should be read together
to establish the “context” supporting her statement that the Boudoir Queen was a “lying
hosebag thief” (Complaint at 4, Simorangkir v. Love, 2009). Certainly, Love’s accusations of
criminality seem to indicate that she had undisclosed (and potentially false) factual
information, which certainly makes it harder (or likely impossible) for her to shield her
statements under the mantle of opinion. Nonetheless, the Love saga is instructive about the
perils of assuming that one can vent one’s frustrations about another in social media without
legal repercussions.
Not all social media defamation suits involve celebrities with thousands of online followers.
In July of 2009, Horizon Group Management, an Illinois-based property management company,
sued tenant Amanda Bonnen for defamation after she tweeted: “Who said sleeping in a moldy
apartment was bad for you? Horizon realty thinks it’s ok.” (Complaint at 2, Horizon Grp.
Mgmt. v. Bonnen, 2009). At the time of the tweet, Bonnen had only twenty people subscribing
to her Twitter posts, but her account was set as public. In Illinois, successful defamation
claimants must prove that the defendant speaker “published” a false statement to at least one
third party and that the “unprivileged publication” damaged the plaintiff (Solaia Tech., LLC v.
Specialty Publ’g Co., 2006, p. 839). Horizon alleged that Bonnen’s defamatory tweet harmed
its “reputation in its business,” and therefore fell into a special category of libel (libel per se)
that allows reputational harm to be presumed without the requirement of proof. Horizon sought
$50,000 in compensation (Complaint at 2, Horizon Grp. Mgmt. v. Bonnen, 2009). Bonnen
asked the court to dismiss Horizon’s claims. She contended that her tweet could not reasonably
be interpreted as defamatory because it was imprecise and, when read in context, did not state
actual, verifiable facts about Horizon. As part of that context, she asked the court to consider
her Twitter history leading up to the statement at issue, claiming her tweets as a whole
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represented “off the cuff reflection or opinion” and contained “exaggerations” (Memorandum
of Law at 9, Horizon Grp. Mgmt. v. Bonnen, 2009). For example, she pointed to tweets that
said: “[c]all me or else we are not friends” and “[a]ll of these people eating at McDonalds is
making me want to hurl” (Memorandum of Law at 9, Horizon Grp. Mgmt. v. Bonnen, 2009).
She contended that “any reasonable reader of [her] Tweets would not take them literally” and
would instead understand them as rhetorical hyperbole (Memorandum of Law at 9, Horizon
Grp. Mgmt. v. Bonnen, 2009). The trial court judge accepted her argument and ruled that her
statements were nonactionable as a matter of law (Dismissal Order at 1, Horizon Grp. Mgmt.
v. Bonnen, 2010). The court did not file a written opinion, but one of Bonnen’s attorneys,
Leslie Ann Reis, claimed that at the dismissal hearing, the judge stated that the tweet was
“really too vague to fit the legal elements required to prove a libel case” (Wang, 2010, para.
10). It is not clear what the court meant by this statement. Perhaps the court was not convinced
that readers would understand that the statement referred to Horizon Group Management.
Another view, put forth by First Amendment attorney Julie Hilden, is that the judge dismissed
an otherwise valid defamation claim because “Horizon would never be able to prove that it
had incurred any but the most minimal damages” resulting from a single tweet to a very few
followers (Hilden, 2010, para. 20). The judge may also have wanted to prevent a corporation
like Horizon Group Management from using the threat of a defamation suit to silence not just
Bonnen but all other tenants who might make similar complaints.
Even if Bonnen’s story ends happily for free expression in social media, speakers would do
well to remember that even when a social media communication seems “private,” it has the
potential to generate a defamation lawsuit that is costly to defend even if it is ultimately
dismissed. In 2009, a high school student sued Facebook Inc., several former classmates, and
their parents for $3 million after nasty remarks about her appeared on a “private” Facebook
page called “Ninety Cents Short of a Dollar” (Complaint at 4, Finkel v. Facebook, 2009). She
sued her former classmates for posting defamatory statements on the Facebook page, their
parents for negligent supervision of their children, and Facebook for not removing the
offending posts. The Facebook page at issue was set up so that no one could access it without
obtaining permission from an “administrator,” and it appears that the page had six members
only (Complaint at 4, Finkel v. Facebook, 2009).
The posts at issue were truly disgusting. They stated, “BTW the 11th cent, [evidently, the
plaintiff] unbeknownst to many, acquired AIDS while on a cruise to Africa …While in Africa
she was seen f****** a horse… I felt WORSE for the horse.” The posts continued in this nasty
tone, also stating, in similar language, that she “persisted to s**** a baboon,” that she
patronized a male prostitute and that her disease was so bad “that she morfed [sic] into the
devil in one of our pictures” (Complaint at 4, Finkel v. Facebook, 2009).
Despite the vile nature of the posts, a New York court dismissed all of the plaintiff’s claims.
The claim against Facebook fell prey to a provision of the Communications Decency Act
(1996), a federal statute that immunizes the providers of “interactive computer services” from
liability for defamatory content posted by the users of such services. More surprisingly, the
New York state court judge dismissed the claims against the adolescents who had posted the
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insulting statements because she concluded that the posts could not reasonably be interpreted
as making factual assertions about the plaintiff’s sexual behavior. Viewed in light of “the
broader social context or setting surrounding the communication” and “the entire context and
tone of the posts,” the court found that the statements on Facebook could “only be read as
puerile attempts by adolescents to outdo each other” (Order Dismissing Remaining Claims at
7, Finkel v. Dauber, 2010). Instead of believing the posted material, a reasonable reader
would interpret them as “evidence of adolescent insecurities and indulgences, and a vulgar
attempt at humor” rather than defamatory “statements of facts” (Order Dismissing Remaining
Claims at 7, Finkel v. Dauber, 2010). Finally, the court found that New York law did not
recognize a claim for negligent parental supervision based on failure to keep one’s adolescent
child from posting such material on a private Facebook page (Order Dismissing Remaining
Claims at 7, Finkel v. Dauber, 2010). Although Finkel’s defamation suit was unsuccessful, its
resolution was by no means certain. What the New York judge interpreted as hyperbole might,
in the hands of another judge, have been viewed as implying that the plaintiff was sexually
promiscuous, even if they did contain fantastical elements. Moreover, the lawsuit embroiled
both those who made the allegedly defamatory statements and their parents in a costly,
stressful, time-consuming, and embarrassing lawsuit, even if they ultimately prevailed. The
case therefore illustrates one of the legal perils speakers face in social media, even when they
believe themselves to be among friends.
Copyright © 2011. Lexington Books. All rights reserved.
INVASION OF PRIVACY AND OTHER BASES OF CIVIL LIABILITY
Although claims for defamation appear to be the most common civil claims brought against
social media users to date, it is worth noting that social media-based lawsuits will often
involve additional theories of liability. The complaint in Simorangkir v. Love (Complaint at 4,
Simorangkir v. Love, 2009), for example, involved not only defamation but claims for
intentional infliction of emotional distress, invasion of privacy, intentional interference with
prospective and advantageous business relationships, and breach of contract. Often, these
additional claims are simply added as “fallbacks” or “make-weights” to the defamation claim,
but this is not always the case.
One theory of liability likely to be used against social media users whose revelations
transgress social norms and injure others is the tort of invasion of privacy. For over a hundred
years, American tort law has been struggling to define how far the institutional mass media
may delve into the intimate lives of the people they cover, how “outrageously” or viciously
they may parody or satirize their targets, and how much they may exploit private information
for entertainment or profit (Lidsky & Wright, 2004). The difficulty has always been in
balancing the individual’s right to privacy with the speakers’ rights to freedom of expression
and the public’s right to know, and the emergence of social media is likely to make striking this
difficult balance even more difficult.
Two recent cases involving social media confirm this prediction. In 2009, a Minnesota
appellate court decided a case involving one of the first civil lawsuits alleging invasion of
privacy via publication on a social media site. In that case, Yath v. Fairview Clinics (2009), a
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clinic worker revealed humiliating medical information illicitly gleaned from a patient’s
medical file to the patient’s sister-in-law. The private information included the fact that the
patient had cheated on her husband and had a sexually transmitted disease. This humiliating
information later appeared on a MySpace page referring to the patient as Rotten Candy (Yath v.
Fairview Clinics, 2009, pp. 38–39). The web page was taken down within a day or so, and the
patient was only able to verify that six people had accessed it while it was on MySpace (Yath
v. Fairview Clinics, 2009, pp. 38-39).
She nonetheless brought suit against the clinic worker and her former sister-in-law for
invading her privacy by publishing private information about her. Minnesota law makes a
defendant who discloses private information about another liable for damages if the plaintiff
can show that the defendant gave “publicity” to a private matter about the plaintiff; disclosure
of the information would be highly offensive to a reasonable person; and the matter was not of
legitimate concern to the public (Yath v. Fairview Clinics, 2009, p. 42). The Minnesota Court
of Appeals found that the plaintiff had shown sufficient “publicity” of her private information
to maintain a claim, even though the MySpace page may have been seen by only a few users
(Yath v. Fairview Clinics, 2009, p. 43). The court analogized the publication that occurred on
the MySpace page in the Yath case to publication in a newspaper with a small distribution. The
court therefore found that it was irrelevant, for purposes of establishing “publicity,” that few
people may have seen it: liability “is triggered when the discloser makes the information
publicly available,” rather than when it is received by an appreciable number of users (Yath v.
Fairview Clinics, 2009, pp. 43–44). Thus, “the publicity element of an invasion of privacy
claim is satisfied when private information is posted on a publicly accessible website” (Yath
v. Fairview Clinics, 2009, p. 44).
Even so, the Minnesota court dismissed the plaintiff’s invasion of privacy claim, due to
strategic errors she (or, more likely, her lawyer) made in pursuing her claim rather than a lack
of merit in the claim itself. The plaintiff made a strategic choice not to appeal a trial court
ruling dismissing her claim against the clinic worker who accessed and disclosed her medical
information. The plaintiff dropped the claim against the worker despite having evidence that
the worker had colluded with another person to post the information on MySpace (Yath v.
Fairview Clinics, 2009, p. 45). Thus, the plaintiff’s invasion of privacy against her former
sister-in-law failed for lack of evidence that the sister-in-law was the person who posted the
information on MySpace. Nonetheless, the appellate court went out of its way to suggest that
the plaintiff’s claims against those who actually posted her information might be valid if
“revived” (Yath v. Fairview Clinics, 2009, p. 45).
If the Yath case is instructive about the dangers of revealing private information about
someone else in a social media forum, a California appellate case, Moreno v. Hanford
Sentinel, Inc. (2009), is instructive about the dangers of revealing “private” information about
oneself. While Cynthia Moreno was a college student at Berkeley, she visited her hometown of
Coalinga, California. Moreno subsequently published on her MySpace page a very negative
“Ode to Coalinga,” in which she stated, among other things, that “the older I get, the more I
realize how much I despise Coalinga” (Moreno v. Hanford Sentinel, Inc., 2009, p. 861). The
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principal of Coalinga High School obtained the Ode and forwarded it to a local reporter. After
publication of the Ode in the local newspaper, Cynthia Moreno’s family received death threats,
and a shot was fired at their home. They were forced to move away from Coalinga (Moreno v.
Hanford Sentinel, Inc., 2009, p. 861). They sued the principal and the local newspaper for
invasion of privacy and intentional infliction of emotional distress. The trial court dismissed
the case against the newspaper under a special California statute designed to prevent lawsuits
from silencing commentary on issues of public significance. The Moreno family did not appeal
the trial court’s ruling as to the newspaper, but they did appeal the trial court’s dismissal of
their claims against the principal for invasion of privacy and for intentional infliction of
emotional distress (Moreno v. Hanford Sentinel, Inc., 2009, p. 861).
With regard to the privacy claim, the California appellate court held that the plaintiffs were
missing a “crucial ingredient” of a valid claim because the revelations concerning the Ode
simply were not private once Cynthia Moreno posted them on MySpace, “a hugely popular
internet site” (Moreno v. Hanford Sentinel, Inc., 2009, p. 862). According to the court,
“Cynthia’s affirmative act made her article available to any person with a computer and thus
opened it to the public eye.” (Moreno v. Hanford Sentinel, Inc., 2009, p. 862). “Under these
circumstances, no reasonable person would have had an expectation of privacy regarding the
published material” (Moreno v. Hanford Sentinel, Inc., 2009, p. 862). The court found it
immaterial that few viewers actually accessed Moreno’s MySpace page. By posting it, Moreno
opened her thoughts to “the public at large,” and “[h]er potential audience was vast”
regardless of the size of the actual one (Moreno v. Hanford Sentinel, Inc., 2009, p. 863). As
Cynthia Moreno learned to her sorrow, there is no privacy invasion when information shared
with a seemingly “friendly” audience is repeated to a hostile one (Moreno v. Hanford
Sentinel, Inc., 2009, p. 863). Nonetheless, the court held open the possibility that a claim for
intentional infliction of emotional distress could succeed, at least if a jury determined that the
principal’s forwarding of the Ode to the newspaper was objectively “outrageous” (Moreno v.
Hanford Sentinel, Inc., 2009, p. 861). The case therefore sends a mixed message about
legitimate use of information shared in social media. On one hand, the information is not
private. On the other, republication can still lead to liability if done for the purpose of
inflicting emotional distress on another in a manner that jurors might subsequently deem
“outrageous.”
CRIMINAL PENALTIES FOR PRIVACY INVASIONS
Those who speak and share information in social media must be aware not only of the potential
for civil liability but criminal liability as well. One tragic case leading to criminal charges
involved 18-year-old Tyler Clementi, a freshman at Rutgers University, who committed suicide
after his college roommate surreptitiously filmed and (allegedly) live streamed over the
Internet (via iChat) images of him “making out with” another man (Tyler Clementi Suicide
Sparks Outrage, Remorse, 2010, para. 8). The privacy invasion that brought about Clementi’s
suicide began on September 19, 2010, when Clementi asked his roommate, Dharun Ravi, for
privacy. Ravi went to his friend Molly Wei’s dorm room, but tweeted to his nearly 150 Twitter
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followers, “[r]oommate asked for the room till midnight. I went into molly’s room and turned
on my webcam. I saw him making out with a dude. Yay.” (Miller, 2010, para. 7). On
September 22, 2010, just three days after Ravi and Wei allegedly broadcast the images of him,
Tyler Clementi posted on his Facebook page “jumping from the gw bridge sorry” (Tyler
Clementi Suicide Sparks Outrage, Remorse, 2010, para. 13). Immediately afterward, Clementi
indeed jumped to his death into the Hudson River from the George Washington Bridge.
After Clementi’s death, a New Jersey prosecutor brought criminal charges against Ravi and
Wei for invasion of privacy pursuant to New Jersey law, which makes criminal the
unconsented recording of images depicting sexual contact (N.J. Stat., 2010). The statute also
makes it an offense punishable by a prison sentence of up to five years to transmit or distribute
such images (N.J. Stat., 2010). The attorney for Ravi told newspapers that Ravi and Wei only
viewed Clementi “hugging and kissing” for a few minutes and never broadcast the images to
others (Friedman, 2010). However, charges were still pending at the time of this writing. In the
meantime, Clementi’s parents filed notice of their intent to sue Rutgers University for not doing
more to protect their son, who evidently reported Ravi’s actions to his dorm’s resident advisor
prior to his suicide (Fanelli, 2010). Certainly, Clementi’s case is a tragic illustration of the
harm that victims feel when they believe their private encounters have been transmitted to the
world at large via social media. Even if Ravi and Wei are ultimately acquitted, the decision to
prosecute them reflects societal outrage over their cavalier sharing of private information
heedless of the harm it might cause.
Copyright © 2011. Lexington Books. All rights reserved.
CYBERBULLYING
The law is creative in adapting old theories to perceived new problems, but it is also capable
of generating new theories of legal liability to deal with new social problems. One spur to
creation of new legal remedies is the phenomenon of cyberbullying, which is the essence of the
claim involved in both the Finkel defamation lawsuit discussed above as well as the criminal
invasion of privacy case brought against Dharun Ravi and Molly Wei after the death of Tyler
Clementi. Indeed, within a few months of Clementi’s suicide, New Jersey enacted the AntiBullying Bill of Rights, Assembly Bill No. 3466 (2010), which “requires school districts to
establish bullying prevention programs or approaches” and subjects school administrators to
discipline for “fail(ing) to initiate or conduct an investigation of an incident, or who should
have known of an incident and fails to take action” (Anti-Bullying Bill of Rights, 2010).
Although this reform is relatively modest, it is responsive to the public frustration over the lack
of adequate preventive measures to stop tragedies like Clementi’s.
It is unclear whether Clementi’s case is an anomaly or merely the tip of an iceberg, but
studies suggest that the number of cyberbullying incidents among middle and high school
students appears to be multiplying (Hinduja & Patchin, 2010). Bullying is by no means a new
phenomenon. Prior to the advent of the Internet, bullying usually occurred face-to-face, with
aggressors dishing out insults, calling names, shunning, and sometimes physically assaulting
victims. Now bullying has moved online. Cyberbullying typically involves the intentional
humiliation of another person via use of electronic devices, such as “in an email, a text
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message, an online game, or comments on a social networking site” (Net Cetera, 2010, p. 20).
From a victim’s perspective, cyberbullying may be worse than many types of “offline”
bullying. Cyberbulllying can target the victim in the confines of her home, and the victim may
fear that anything said about her may be searchable indefinitely and thus haunt her for years.
The cyberbully by contrast, may not always appreciate the effect of his words. In Bullying
Beyond the Schoolyard, researchers Hinduja and Patchin (2009) suggest that cyberbullying
sometimes occurs because the passive nature of online communication makes the bullying
speaker unaware of the effects of his speech. In face-to-face interactions, physical cues often
signal when speech transgresses social norms and causes emotional distress. But when people
communicate online, such signals are absent (Hinduja & Patchin, 2009, p. 22). Without instant
feedback from the victim, the bully may have difficulty registering the effect of his speech, and
he is thus less likely to apologize or clarify that he meant no offense.
Although cyberbullying is associated with schoolchildren, a case of cyberbullying
perpetrated by Missouri mom Lori Drew focused a public spotlight on the harm that speech in
social media can cause to children and even prompted the development of a new legal theory
to address that harm. The 49-year-old Drew opened a MySpace account as “Josh Evans,” a
teenage boy, in order to start a correspondence with her 13-year-old daughter’s former friend
Megan Meier (Steinhauser, 2008, para. 9). After winning Meier’s trust, “Josh” cruelly ended
the friendship by email, telling her “[t]he world would be a better place without you”
(Steinhauser, 2008, para. 10). Meier emailed back, “You’re the kind of boy a girl would kill
herself over” (Steinhauser, 2008, para. 11). Megan hanged herself approximately fifteen
minutes after these messages were sent over the MySpace servers (Steinhauser, 2008, para.
11). There were no cyberbullying laws in Missouri at the time of Meier’s death, but because of
the national outrage of an adult manipulating a minor to kill herself, a federal prosecutor
concocted a criminal case against Lori Drew under the Computer Fraud and Abuse Act of
(1986). Essentially, the jury convicted Drew of “defrauding” MySpace by misrepresenting her
identity and motives to open an account (Steinhauser, 2008). The jury found that Drew had
accessed a computer involved in interstate communication (the MySpace Servers) without
authorization or in excess of authorization (in violation of MySpace’s terms of service) to
obtain information, thereby committing computer fraud (Steinhauser, 2008).
The trial court ultimately overturned the jury’s verdict and acquitted Drew. The court
reasoned that the Act was unconstitutionally vague because it did not put Drew on notice that
the breach of the MySpace “terms of service contract” could be a crime (United States v.
Drew, 2009, p. 464). The court further stated that the Act did not provide guidance for law
enforcement regarding when to enforce a breach of a website’s terms of service contract as a
criminal act. Without “clear guidelines or objective criteria as to the prohibited conduct,”
federal law enforcement would be “improperly free to pursue their personal predilections”
(United States v. Drew, 2009, p. 467). In the end, Drew was acquitted of all federal charges
and was never charged with any state crimes relating to her phony MySpace account or
Meier’s suicide. Nonetheless, the case is a cautionary tale about the dangers of cyberbullying
and the potential for lawmakers to develop new theories of liability to address it.
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As of December 2010, forty-four states have passed laws that address bullying. Of those,
thirty-one include electronic harassment, but only six states include the term “cyberbullying”
(Hinduja & Patchin, 2010). States have successfully brought cases for cyberbullying against
minors, but some of these laws may be declared unconstitutionally vague or overbroad as
cases make their way through the appellate courts. As of January 2011, there was no federal
cyberbullying law in effect, but House Resolution 1966, designated the Megan Meier
Cyberbullying Prevention Act, was proposed and is pending before the House Judiciary
Committee. If passed, it would constitute another new tool against cyberbullying in social
media.
Copyright © 2011. Lexington Books. All rights reserved.
SEXTING AND CYBERSTALKING
As social media become more popular, some crimes that previously took place through texting
or email may migrate into social media. One of these is “sexting.” Sexting is a relatively new
term used to describe the imposition of criminal liability for “sending or forwarding sexually
explicit photos, videos, or messages from a mobile phone” (Net Cetera, 2010, p. 19). To date,
most “sexting” cases have involved the sending of text messages. However, a sexting case also
can arise when the receiver of sexually explicit photos decides to post them to Facebook,
MySpace, or other social media outlets.
Sexting can create liability in a host of ways. At a minimum, posting a nude photo without
consent can lead to a civil lawsuit for invasion of privacy. Yet, even the posting of a “fake”
nude photo posted online can lead to liability. In a 2011 Florida case, prosecutors brought
felony aggravated stalking charges against two teenage girls who allegedly posted a fake nude
photo of a classmate on a Facebook page. They created the photo by pasting a picture of the
victim’s head on a picture of a nude body, and the victim evidently faced widespread ridicule
within her school (Florida Teens Charged with Felony Cyber Bullying, 2011).
Even more serious criminal charges await any person who makes sexually explicit materials
available to a minor or posts images of a minor within social media. Prosecutors have
threatened to charge teens who text explicit images of themselves to “consenting” minors with
felony child pornography (Miller v. Mitchell, 2010). Moreover, an 18-year-old who texted
nude photos of his girlfriend to others was convicted of distributing child pornography and
branded a sex offender, a designation he will bear until age 43 (Feyerick & Steffen, 2009). The
potential criminal penalties for sexting can be so serious that some states, such as New Jersey
and South Carolina, are trying to create programs that would soften the penalties or allow teens
to avoid criminal prosecution by participating in educational “diversionary” programs (Santi,
2011; Boone, 2010). Although no sexting case involving social media has yet become national
news, the prevalence of social media use for intimate and sometimes impulsive conversation
makes it very likely that it will soon.
Cyberstalking is a serious criminal offense that has already migrated to social media. In
simplest terms, cyber stalking involves the “use of the Internet, e-mail, or other electronic
communications devices to stalk another person . . . that generally involves harassing or
threatening behavior that an individual engages in repeatedly” (Attorney General of the United
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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Copyright © 2011. Lexington Books. All rights reserved.
States, 1999, para. 5). States define cyberstalking in various ways. The state of Florida, for
example, defines cyberstalking as the use of email or other electronic channels to communicate
words, images, or language to a specific person, repeatedly, to serve no legitimate purpose,
and that causes the person “substantial emotional distress” (Fla. Stat., 2010). When one
“willfully, maliciously, and repeatedly” cyberstalks another, he or she can be charged with a
misdemeanor offense, though the offense becomes a felony when the target is under age sixteen.
If the harassment includes a threat intended to create reasonable fear of bodily injury to the
victim or the victim’s family, the crime becomes aggravated stalking (Fla. Stat., 2010). Florida
law permits law enforcement to arrest anyone they have probable cause to believe has violated
the cyber stalking law, even without an arrest warrant (Fla. Stat., 2010).
In December of 2010, law enforcement officials arrested 27-year-old Mitchell W. Hill of
Key West, Florida, on charges that he sexually harassed women who pledged a sorority at
Louisiana State University (Clark, 2010). Hill is also a suspect for similar cyberstalking
incidents against sorority members at Florida State University and the University of Florida as
well as schools in other states (Clark, 2010). In these cases, Hill initiated the alleged
cyberstalking by contacting a sorority pledge on Facebook and requesting her to become a
Facebook friend. He claimed to be an alumna of the sorority the victim was pledging. He then
requested to video chat, but he claimed to have a faulty webcam so that only images of the
female victim would be captured and transmitted to him (University Students are Targets of
Cyber Stalkers, 2010). Hill allegedly asked his victims personal questions such as the color of
their underwear. Over time, he requested the victims to disrobe in front of the webcam as part
of the pledging initiation. If the victims refused a demand, he threatened to post compromising
pictures on Facebook and block their entry into the sorority (University Students are Targets of
Cyber Stalkers, 2010). Florida State University student, Ashley Atchison, was one of the first
to report what was happening. She told law enforcement authorities that in response to her
refusal to one of the perpetrator’s suggestive demands, he threatened, “what if I told you there
were two girls outside your dorm that could handle you?” (University Students are Targets of
Cyber Stalkers, 2010). As a result of Hill’s Facebook activities, Louisiana prosecutors have
charged him with extortion, video voyeurism, and attempted video voyeurism, and Florida law
enforcement are still conducting an investigation into his alleged cyberstalking (University
Students are Targets of Cyber Stalkers, 2010).
CONCLUSION
As usage of social media increases, uninhibited speech and information sharing are
increasingly clashing with other important social values, such as the preservation of civility in
public discourse and the protection of individual reputation, privacy, security, and dignity on
the other. To mediate these clashes, courts have adapted and will continue to adapt existing
legal theories to new media problems. Meanwhile, legislatures are creating entirely new
theories of liability in an effort to curtail antisocial behaviors.
Currently defamation is the claim most likely to be deployed by private litigants against
uncivil communication within social media. The rise of social media defamation claims is
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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forcing American courts to adapt a legal theory borrowed centuries ago from England to the
new types of discourse taking place in social media spaces like Facebook and Twitter. This
legal adaptation is necessary to address, for example, whether the conventions of
communication within a “private” Facebook page or on a celebrity Twitter feed should
influence the interpretation of allegedly defamatory statements. Civil claims for invasion of
privacy and intentional infliction of emotional distress have also presented difficult legal
questions: Can the repetition of statement published to friends on MySpace ever form the basis
of an invasion of privacy claim? Should a person be held liable for the emotional harm caused
when he disseminates a “friend’s” MySpace comments originally made to a limited, “friendly”
audience to a much broader, “hostile” audience? Tentative legal answers to these and other
new questions are beginning to emerge, as the law responds to pleas by private litigants for
compensation for harms allegedly suffered through social media communication. As courts
continue to respond to similar claims, their decisions will inevitably impose a civilizing
influence on communication within this new realm.
Meanwhile, criminal law is struggling to police the most extreme abuses attendant to social
media communication. Several teens such as 18-year-old Rutgers student Tyler Clementi have
killed themselves in response to cyberbullying, and legislatures have responded to these
incidents with new laws designed to prevent and punish cyberbullying conduct. In the
meantime, prosecutors have charged alleged cyberbullies with criminal privacy invasion and
even computer fraud and abuse in an attempt to ensure that perpetrators do not escape
punishment. The search for adequate legal responses to cyberbullying, its adult sibling
cyberstalking, and even sexting is likely to continue as existing forms of antisocial behavior
migrate to social media.
Copyright © 2011. Lexington Books. All rights reserved.
REFERENCES
Anti-Bullying Bill of Rights, Assemb §13(d). 3466, 214th Leg., Reg. Sess. (N.J. 2010).
Attorney General of the United States. (1999). Report on cyberstalking: A new challenge for law enforcement and industry.
Department of Justice. Retrieved from http://www.justice.gov/criminal/cybercrime/cyberstalking.htm
Boone, C. (2010, December 21). Sexting: No scarlet letters in South Carolina if new law passes. Technorati. Retrieved from
technorati.com/women/article/sexting-no-scarlet-letters-in-south
Clark, C. (2010, December 11). Key West chef accused of video voyeurism of LSU students. Sun Sentinel. Retrieved from
http://articles.sun-sentinel.com/2010-12-11/news/fl-sorority-stalker-20101210_1_video-voyeurism-sorority-lsu-students
Communications Decency Act of 1996, 47 U.S.C. § 230 (1996).
Complaint at 2, Horizon Grp. Mgmt. v. Bonnen (Ill. Cir. Ct. 2009) (No. 2009L008B675). Citizen Media Law Project.
Retrieved from http://www.citmedialaw.org/threats/horizon-group-v-bonnen
Complaint at 4, Finkel v. Facebook (N.Y. Sup. Ct. 2009) (No. 102578,). Citizen Media Law Project. Retrieved from
http://www.citmedialaw.org/threats/finkel-v-facebook
Complaint at 4-5, Simorangkir v. Love, 2009 WL 798260 (Cal. Super, 2009) (No. BG410593).
Computer Fraud and Abuse Act of 1986, 18 U.S.C. §§ 1030(a)(2)(C) and (c)(2)(A) (2006).
Dismissal Order at 1, Horizon Grp. Mgmt. v. Bonnen (Ill. Cir. Ct. 2010) (No. 2009L008B675). Citizen Media Law Project.
Retrieved from http://www.citmedialaw.org/threats/horizon-group-v-bonnen
Fanelli, J. (2010, December 22). Tyler Clementi’s parents may sue Rutgers over son’s suicide after roommate’s alleged bullying.
New York Daily News. Retrieved from www.nydailynews.com/ny_local/2010/12/22
Feyerick, D. & Steffen, S. (2009, April 8). “Sexting” lands teen on sex offender list. CNN.com/crime. Retrieved from
http://edition.cnn.com/2009/CRIME/04/07/sexting.busts/index.html
Fla. Stat. § 784.048 (2010).
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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Copyright © 2011. Lexington Books. All rights reserved.
Florida teens charged with felony cyber bullying (2011, January 14). Nwfdailynews.com. Retrieved from
www.nwfdailynews.com/articles/charged-3665-teens-cyber.html
Friedman, E. (2010, October 6). Rutgers students investigated after death of classmate break their silence. ABC News.
Retrieved from abcnews.go.com/US/rutgers-suspect-dhuran-ravi-breaks-silence-tyler-clementi/t/story?id=11812453
Heller, M. (2009, October 26). Judge allows Twitter-libel suit against rocker Love. On Point. Retrieved from
http://www.onpointnews.com/NEWS/Judge-Allows-Twitter-Libel-Suit-Against-Rocker-Love.html
Hilden, J. (2010, February 2). A landlord/tenant defamation case highlights the risks of Twitter. FindLaw. Retrieved from
http://writ.corporate.findlaw.com/hilden/20100202.html
Hinduja, S., & Patchin, J. W. (2009). Bullying beyond the schoolyard: Preventing and responding to cyberbullying.
Thousand Oaks, CA: Corwin Press.
Hinduja, S., & Patchin, J. W (2010, February). Cyberbullying research in review. Cyberbullying Research Center. Retrieved
from http://cyberbullying.us/Cyberbullying_Research_In_Review.pdf
Joinson, A. (1998). Causes and implications of disinhibited behavior on the Internet. In J. Gackenback (Ed.), Psychology and
the Internet: Intrapersonal, interpersonal, and transpersonal implications (pp. 43-60). San Diego: Academic Press.
Lidsky, L. B., & Wright, R. G. (2004). Freedom of the press: A reference guide to the United States Constitution. Westport,
CT: Greenwood Press.
Memorandum of Law at 9, Horizon Grp. Mgmt.. v. Bonnen (Cir. Ct. 2009) (No. 2009L008B675). Citizen Media Law Project.
Retrieved from http://www.citmedialaw.org/threats/horizon-group-v-bonnen
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
Miller, C. D. (2010, September 29). Tyler Clementi suicide: Lawyer confirms student’s suicide, Molly Wei and Dharun Ravi
face charges for sex tape. CBS News. Retrieved from http://www.cbsnews.com/8301-504083_162-20018088-504083.html
Miller v. Mitchell, 598 F.3d 139 (3d Cir. 2010).
Moreno v. Hanford Sentinel, Inc., 91 Cal. Rptr.3d 858 (Cal. App. 2009).
Motion to Strike at 3, Simorangkir v. Love, 2009 WL 3482210 (Cal.Super. 2009).
N. J. Stat. Ann. 2C:14-9 1(b), (c) (West 2010).
Net Cetera: Chatting with kids about being online. (2010). Federal Trade Commission. Retrieved from
http://www.onguardonline.gov/pdf/tec04.pdf
Order Dismissing Remaining Claims at 7, Finkel v. Dauber (N.Y. Sup. Ct. 2010) (No. 012414/09). Citizen Media Law Project.
Retrieved from http://www.citmedialaw.org/sites/citmedialaw.org/files/FinkelvDauber-dismissremainingclaims.pdf
Rosenblatt v. Baer, 383 U.S. 75, 86 (1966).
Santi, A. D. (2011, January 24). Bill would let “sexting” NJ teens avoid charges. Yahoo! News. Retrieved from
news.yahoo.com/s/ap/20110124/ap_on_re_us/us_sexting_new_jersey_3
Solaia Tech., LLC. v. Specialty Publ’g Con. 852 N.E.2d 825, 839 (Ill. 2006).
Steinhauser, J. (2008, November 26). Verdict in MySpace suicide case. New York Times. Retrieved from

Tyler Clementi suicide sparks outrage, remorse. (2010, September 30). CBS News. Retrieved from
http://www.cbsnews.com/stories/2010/09/30/national/main6914293.shtml
United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009).
University students are targets of cyber stalkers. (2010, December 3). ABC Action News. Retrieved from
http://www.abcactionnews.com/dpp/news/state/university-students-are-cyber-stalking-targets
Wang, A. L. (2010, January 21). Twitter apartment mold libel suit dismissed. Chicago Breaking News: Retrieved from
http://archive.chicagobreakingnews.com/2010/01/twitter-mold-libel-defamation-suit-dismissal-cook-county-court.html
Yath v. Fairview Clinics, 767 N.W. 2d 34 (Minn. Ct. App. 2009).
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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Chapter Fifteen
The Realm of the Expected: Redefining the Public
and Private Spheres in Social Media
Copyright © 2011. Lexington Books. All rights reserved.
Jasmine E. McNealy
In the United States the definition of privacy is the source of much contention. Definitions are
diverse and at times disparate, prompting one scholar to call the large number of conceptions
of privacy embarrassing (Gerety, 1977, p. 234). Privacy has been called secrecy (Posner,
1998), intimacy (Inness, 1992), and information control (Westin, 1967). Privacy has also been
related to total fulfillment as a person (Craven, Jr., 1976) and the right to be let alone (Warren
& Brandeis, 1890). These conceptions of privacy appear to be based on what the theorists
believe is most important with regard to the kinds of information or relationships the law
should protect.
In privacy law related to both government prosecutions and civil proceedings, privacy
depends upon the circumstances surrounding the disclosure—what is called the expectation of
privacy. For example, in Katz v. United States (1967), the U.S. Supreme Court found the act of
closing a telephone booth’s door created a temporary zone of privacy for the booth’s occupant,
and that an individual did not relinquish the right to exclude others from his conversation just
because he used a public facility. Yet, in more than 40 years since the Katz decision, with
Justice Potter Stewart famously stating, “The Fourth Amendment protects people—and not
simply ‘areas’—against unreasonable searches and seizures” (p. 351), private “places” have
not been defined concretely.
Social media like Facebook, MySpace, and Twitter can be considered both public and thirdparty, designations that have historically vitiated an individual’s privacy claims. Under
traditional privacy law, one could argue, for example, that in making their tweets public and
using social media, Twitter users have no expectation that the 140 characters they place in their
status boxes are private. But new media and new methods of communication may require
rethinking what information is protected as private. A growing number of individuals use
social media to communicate and connect with others. This may involve placing otherwise
private information online.
But is it truly reasonable for an individual using social media to expect that the information
they provide to these media platforms will remain private? This chapter examined what is now
considered public and private with respect to “personal information” and social media. To do
this, the chapter considers traditional as well as modern privacy theory, and legal opinions
regarding privacy as they relate to social media.
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THE REASONABLE EXPECTATION OF PRIVACY
The Katz (1967) case arose after FBI agents, who were investigating organized gambling,
secretly recorded a man’s calls to a bookie made from a telephone booth. Although the
majority of the Katz Court ruled the man’s conversations were private and the agents violated
his Fourth Amendment right to privacy when they recorded him, it is Justice Harlan’s brief
concurrence that has helped to shape many of the rulings with regard to what is private. In his
concurrence, Justice Harlan annunciated a concept later called “the reasonable expectation of
privacy” (p. 9). Harlan wrote, “My understanding of the rule that has emerged from prior
decisions is that there is a twofold requirement, first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as ‘reasonable’” (Katz v. United States, 1967, p. 361). For Harlan, this
meant that a person’s home was the place with the greatest expectation of privacy. The same
could not be said for anything an individual said or did in public.
Post-Katz, the Court has delivered rulings detailing when and where individuals do not have
a reasonable expectation of privacy. Therefore, individuals do not have a reasonable
expectation of privacy in the telephone numbers that they have dialed because in pressing the
buttons on their telephones, they have provided the information to a third party (Smith v.
Maryland, 1979). Nor do people have a reasonable expectation of privacy in the trash that
they leave on the curb for removal because it is exposed and available to the public
(California v. Greenwood, 1988). What’s more, the Supreme Court ruled that a man did not
have a reasonable expectation of privacy in the contents of his greenhouse, which the police
were able to observe while flying over in a small aircraft because the officers were able to
view the contents from public airspace (Florida v. Riley, 1989). The aggregate rule from these
court decisions and others defining reasonable privacy expectations is that although
reasonableness will depend upon the situation there is no reasonable expectation of privacy in
information exposed to others. The lack of a formal definition of a reasonable expectation of
privacy, however, provoked Justice Scalia to assert, “reasonable expectations of privacy bear
an uncanny resemblance to those expectations of privacy that this Court considers reasonable”
(Minnesota v. Carter, 1998, p. 477).
The idea of a reasonable expectation of privacy is not solely found in Fourth Amendment
related jurisprudence, but it is also found in tort privacy law. In the United States, tort privacy
has its foundation in an 1890 Harvard Law Review article appropriately titled “The Right to
Privacy,” which called for the recognition of a “right to be let alone” (Warren & Brandeis,
1890). Legislatures and courts began recognizing privacy torts soon after the article’s
publication. Prosser (1960) fleshed out Warren and Brandeis’ new tort by evaluating the
privacy cases that had arisen after the 1890 article’s publication, and found that, “The law of
privacy comprises four distinct kinds of invasion four different interests of the plaintiff” (p.
389). In two of these invasions, intrusion upon seclusion and publication of private facts, the
courts examine reasonableness with respect to the plaintiff’s claim of invasion of privacy.
Intrusion is the intentional and highly offensive invasion of a zone of privacy created by
another individual (Restatement of Torts, 1965, sec. 652B). This invasion can be physical or
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electronic so long as a person enters an otherwise private place or the affairs that another has
taken the effort to keep private (Restatement of Torts, 1965, sec. 652B comment (c)).
Therefore, just as in Fourth Amendment jurisprudence, a person has the greatest expectation of
privacy in his home. Although one’s home is a major sphere of privacy, information found in
public records or observed in areas open to the public are not the subject of intrusion liability
(Desnick v. ABC, Inc., 1995; Nader v. General Motors Corp., 1970). Concomitantly, the
courts have recognized that certain information observable in public may provide a cause of
action for intrusion.
In intrusion cases, a reasonable expectation of privacy is an objective standard to be judged
by a jury. This standard is evaluated based on what society would consider reasonable. The
justification for this standard is “address[ing] the problem of idiosyncratic individual
preferences,” in relation to privacy “Some individuals may have an unusually strong desire for
privacy and may make impossible demands for privacy” (Solove, 2008, p. 71). In place of a
variable standard of privacy, the courts use a standard that comports most with public policy.
Individuals have no expectation of privacy in what they say or do in public, therefore, because
society would not consider it reasonable for an individual to claim privacy in actions that are
readily observable.
Public disclosure of private facts also makes use of a reasonableness expectation rooted in
societal norms. This category of invasion of privacy asks whether the defendant has publicized
private information about the plaintiff (Restatement of Torts, 1965, sec. 652D). The focus is
not so much on whether or not the information was private, but whether the publication of the
information was highly offensive to a reasonable person (Restatement of Torts, 1965, sec.
652D comment (c)). This highly offensive requirement, like the reasonable expectation
requirement, takes into account societal views of offensiveness. It is, for example, highly
offensive to a reasonable person to publish the photograph of a woman whose skirt has blown
up above her head in public (Daily Times Democrat v. Graham, 1964), or reporting that
someone suffered from a rare disease (Barber v. Time, Inc., 1942). At the same time it is not
highly offensive to publish a picture of a young couple kissing at a restaurant (Gill v. Hearst
Publishing Co., 1953), or of a young woman exposing her breasts at a rock concert (Mayhall
v. Dennis, 2002).
A final consideration in evaluating publication of private facts is newsworthiness. The
question here is whether there is a public interest in the disclosed information. Although there
is no established rule with respect to newsworthiness, the courts have used at least three
different tests in analyzing whether there is a legitimate public interest in certain information
(Dendy, 1997). These tests are aimed at avoiding a confrontation with the First Amendment for
punishing the publication of information. One such test was excerpted from Virgil v. Time
(1975), and the Restatement of Torts later adopted it. It requires the courts to evaluate the
“customs and conventions of the community” when deciding newsworthiness (p. 1129).
Another key test is found in the well-known case of Sipple v. Chronicle Publishing Co.
(1984). In that case, Oliver Sipple, the man who had thwarted an assassination attempt on
President Gerald Ford, sued a newspaper for disclosing that he was gay, but the Court found
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that the customs and conventions of the community dictated that Sipple had become news.
Therefore, the disclosure about his private life did not invade his privacy.
The jurisprudence of intrusion, public disclosure of private facts, and Fourth Amendment–
related privacy has been easily applied to offline privacy infractions. When the medium has
shifted online, however, the application of supposedly well-settled principles has been
difficult. This difficulty, at least with respect to the privacy torts, is a result of privacy
traditionally being a function of physical space and location (Abril, 2007, p. 12; Solove, 2008,
p. 1131) demonstrated by the idea that one’s home is where he has the greatest expectation of
privacy. But the dependence on spatial determinations is detrimental to the application of
privacy torts on the Internet, more specifically social media, because the web transcends space
(Abril, 2007, p. 19). Further, this social media space has created expectations about privacy
that differ from what traditionally has been considered acceptable. These expectations are
based on “the anonymity of the multitude, and assumptions about the presence of their intended
audiences,” which Abril (2008) calls a “complex conception of privacy rooted in the
perceived entitlement of selective anonymity” (p. 77). Taking this view into account, the
expanse of the social media network is such that it gives users the illusion that the private
information they provide on these sites is protected from invasions.
Copyright © 2011. Lexington Books. All rights reserved.
PRIVACY AND SOCIAL MEDIA
The use of social media by both young people and adults in the United States continues to
grow. In fact, the number of adults using social networking sites increased by almost 600% in
the four years between February 2005 and September 2009 (Lenhart, Purcell, Smith & Zickuhr,
2010, p. 17). With data demonstrating increased social media usage, the question remains as to
what, exactly, constitutes social media. According to Correa, Hinsley, and de Zúniga (2010),
social media are digital and Internet tools that have little to do with traditional media. Instead
“it provides a mechanism for the audience to connect, communicate, and interact with each
other and their mutual friends” (Correa et al., 2010, p. 248). Other scholars define social
media more broadly than just networking sites, to include blogs, wikis, user-generated media,
and forums (Schrock, 2009). Researchers Boyd and Ellison (2008) provide a more complex
three-prong definition of social media:
We define social network sites as web-based services that allow individuals to (1) construct a public or semi-public profile
within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse
their list of connections and those made by others within the system. The nature and nomenclature of these connections may
vary from site to site. (p. 211)
However broadly or narrowly defined, social media are about interaction or the ability of
users to form networks and otherwise mingle with others they know or have just met. Boyd and
Ellison (2008) assert, “What makes social network sites unique is not that they allow
individuals to meet strangers, but rather they enable users to articulate and make visible their
social networks” (p. 211).
Not only have social networking sites enabled users to communicate with others, but these
media have “blurred” the boundaries between what is a reasonable expectation of privacy and
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what is not (Abril, 2007; Cohen, 2008; Gelman, 2009; Sprague, 2008). Inherent in social
media is the display of connections and communication. Social media like Facebook, Twitter,
and LinkedIn require users to create profiles and input identifying information. This
information may be as benign as a name or username, to more specific information like
geographic coordinates. For the most part, users are able to choose the type of information, and
the accuracy of the information they provide. Individuals are then able to connect with
“friends” both real and imagined, or “follow” others whose status updates, or tweets, they find
interesting. Users may then send messages, chat, view user-generated media, and otherwise
interact using the Web site as a medium. This display of information, be it in the form of a
Facebook wall, Twitter feed, or a connection on LinkedIn are, for the most part, open to public
viewing. Of course, each of these sites has privacy settings by which a user can restrict access
to their information. The default setting, however, is to allow public viewing of this
information. And yet, Internet users continue to flock to these Web sites and disclose their
private information.
Studies of information disclosure on social media sites have found that users appear
unconcerned about the amount of information they disclose (Gross & Acquisti, 2005; Young &
Quan-Haase, 2009). Gross and Acquisti (2005), for example, found the majority of the college
student respondents to their survey displayed personal information on their Facebook profile
including their birthdate and address, and an image that made them identifiable. Young and
Quan-Haase (2009) found that although Facebook users disclosed the personal information as
indicated above, they were concerned about privacy. To express their concern, the majority of
users in the study had changed the privacy settings on their Facebook profile to “friends only”
(p. 268).
Predictors of those who will make changes to their profile’s privacy settings include having a
large number of friends with private profiles, making frequent changes to a profile, as well as
having more mainstream tastes with respect to cultural items such as favorite books, music, and
television shows (Lewis, Kaufman, & Christakis, 2008). But changes to privacy settings may
also be a result of a user’s understanding of threats to their privacy, as well as the user’s
familiarity with the site’s privacy settings (Debatin, Lovejoy, Horn & Hughes, 2009;
Grimmelmann, 2009). Those more familiar with a site’s privacy settings are more likely to use
them (Debatin et al., 2009; Tuunainen, Pitkanen & Hovi, 2009).
But the reason for the failure to change one’s privacy settings on a social networking site may
be as simple as laziness. Krishnamurthy and Wills (2008), for example, found that 99% of
Twitter users kept the default privacy settings, which allow their name, followers, location
URL, and biographical information to be public. Even when Twitter users took measures to
protect their information by setting their profiles to private, their communications may still be
disclosed (Meeder, Tam, Kelley & Cranor, 2010). Meeder et al. (2010) investigated the leaked
tweets of over 5 million Twitter users with their profiles set to private. Their study found that
4.68% of users with protected accounts had at least one tweet that was retweeted, and thereby
exposed to others outside the users’ control (p. 6). These users may have been unaware that
their tweets were retweeted because instead of using the Retweet function on Twitter, many re-
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tweeters would simply cut and paste the tweet. Despite the lack of privacy, Twitter continues
to grow.
Grimmelmann (2009) provides three reasons for social media users’ continued interest in and
posting on these sites in spite of the threat to their privacy. First, social media users perceive
safety in the large number of other people online (p. 1161). Social media usage has continued
to grow (Lenhart, 2009). As of September 2010, Twitter, for example, boasted 175 million
registered users, and 95 million tweets written per day (“Twitter,” 2010). Facebook tallied
500 million active users (“Statistics | Facebook,” 2010). The sheer number of those on social
media could influence a user to believe that someone looking for them would be searching for
the needle in the haystack.
Secondly, the design of social media sites is such that they make users believe that they are in
a private space (Grimmelmann, 2009, p. 1162). According to Cohen (2008), networked
spaces, like those in social media, can be analogized to “home,” where the individual has the
“freedom of movement.” Home is where “we can move from room to room, we can speak our
minds and read whatever interests us, we can pursue intimacy in relationships” (p. 195).
Similarly, in social media spaces, users create a profile, invite friends over, communicate with
others, and do things typical for the home setting. Moreover, users can personalize their
profiles, adding images, video and other applications.
Finally, the connections made on social media sites create the belief in users that they are in a
community of similar people, all of whom they know (Grimmelmann, 2009, p. 1162).
According to Gelman (2009), social media users do not protect their privacy more because
they view their social network as still undefined. Users may expect their networks to grow as
they add friends and connect with more people. This is one of the incentives created by social
media: that users will be able to connect with offline friends and associates. Debatin et al.
(2009) found that the majority of social media users saw the benefits of using social media as
outweighing the risks to their privacy. The perceived benefit is that in disclosing more
information, users may attain more connections.
According to Lewis et al. (2008), online privacy and the disclosure of information can be
characterized as following a familiar pattern. First, the boundary between what is public and
what is private is undefined and there are debates over appropriate boundaries. The next stage
is perhaps important to understanding the current state of privacy law with respect to social
media. Abril (2008) views the social media privacy debate as being between digital natives
and digital immigrants. The divide between these two camps emerged in the work of Palfrey
(2007) and was published in the Harvard Business Review. Digital natives are those who have
always used the Internet and Web capabilities to communicate. Digital immigrants are those of
an older generation who have had to become accustomed to using digital media. Digital
natives’ view of privacy is complex and based on the idea that they should be protected, at
times, from the unintended consequences of their information disclosures (Abril, p. 77). The
digital immigrant’s conception of privacy, on the other hand, is rooted in the knowledge that the
Internet is open to anyone. Therefore, Internet users should take more control over their
personal information, although that is difficult in a place where an individual’s personal
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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information may be disclosed by another entity (pp. 77–78).
In the second stage of the Lewis et al. (2008) pattern, the users of online technology began to
feel the consequences of the blurred boundaries of public and private information. “Users
venture too far into public space with private details, and the consequence is a crashed party, a
lost job opportunity, or—at the extreme—sexual assault or identity theft” (p. 96). Recent legal
decisions demonstrate that the privacy in social media may now be at a consequential stage.
The courts are now deciding whether social media users should expect privacy in the
information they post online.
Copyright © 2011. Lexington Books. All rights reserved.
APPLYING THE REASONABLE EXPECTATION TO SOCIAL MEDIA
According to Sprague (2008), “new forms of communication require a shift in attitudes to
accepting the idea that just because few people could access information does not mean it is no
longer private even on the Internet” (p. 408). Such a shift would seem to run contrary to
traditional privacy jurisprudence, which provides the greatest protection to activities and
information that an individual took affirmative steps to keep safe. To evaluate whether the
courts are shifting attitudes toward expectations of privacy with respect to social media it is
instructive to examine their decisions.
In many of the cases found, a party to a lawsuit has requested access to the social media
profile, or documents connected to the profile, of the opposing party to the lawsuit. In Dexter v.
Dexter (2007), the court used a woman’s MySpace posting, which indicated she used drugs in
her home while her child was present to decide the best interest of the child in a custody case.
In Ledbetter v. Wal-Mart Stores (2009) the federal court granted a subpoena for the Facebook
and MySpace profiles of two people claiming to have been injured at a Wal-Mart store.
Similarly, in McMillen v. Hummingbird Speedway (2010), a Pennsylvania trial court ordered
the plaintiff in a personal injury case to produce the login and passwords to his Facebook and
MySpace accounts. Bill McMillen sued Hummingbird Speedway after he was injured during a
stock car race. McMillen claimed he was injured after being rear-ended by another driver on
the Hummingbird track. Hummingbird requested discovery of McMillen’s Facebook and
MySpace profiles to investigate McMillen’s claim that his injuries caused him to lose the
ability to enjoy life. In particular, Hummingbird wanted information on a trip that McMillen
had made to the Daytona 500 and a fishing trip (p. 2).
The court granted Hummingbird’s motion for discovery, finding that McMillen’s
communications on the social networking sites were not confidential communications for
which there was a privilege against disclosure (p. 6). In its opinion, the court noted the terms
of service for both Facebook and MySpace warn the user that any information provided to the
sites may be disclosed if requested by law, as well as for other reasons (pp. 7–8). According
to the court, this is evidence that communications on these sites are not considered private.
Further, any information provided or communicated through these social networking sites is
information delivered to a third party. Individuals have no expectation of confidentiality with
respect to information disclosed in the presence of a third party (p. 9). Meaning, social media
users should not expect to keep the information that they post on these sites private.
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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More recently, in Romano v. Steelecase (2010), another personal injury case, a New York
appellate court ruled that the postings on a plaintiff’s social networking profiles were not
privileged, and therefore available for discovery. To make its decision, the court examined
cases decided outside its jurisdiction including Ledbetter v. Wal-Mart Stores, Inc. (2009).
These cases led the court to decide that the material included on Romano’s social media
profiles was discoverable in spite of the privacy controls she had configured to restrict access
to her page. Further, the court found that any risk to privacy was outweighed by the benefits of
allowing a defendant ample evidence by which to defend themselves (p. 655).
The parties in the cases above sought protection for information they posted on various social
media sites. The courts in all of the cases found no violation of privacy in allowing an adverse
party to access the social media postings. In the cases involving physical injuries the courts
used the rules of evidence as a basis for ruling the individuals’ social media communications
were not privileged. In evidence law, certain relationships, such as doctor-patient or attorneyclient, are privileged, and therefore the parties to those relationships are not required to
disclose that information except under certain circumstances. The relationship between an
individual and a social media site does not rise to the level of that between a doctor and her
patient. The disclosure of information to a third party for which there is no privilege vitiated
both McMillen’s and Romano’s claim of privacy in their social media posts.
As part of her argument against allowing discovery of her social network profiles, Romano
asserted protection under the Stored Communications Act (SCA), which prohibits third-party
Internet Service Providers from disclosing electronic communications. Buckley Crispin
asserted similar protection for his online communications that were subpoenaed during the
course of his lawsuit against Christian Audigier, Inc. (Crispin v. Christian Audigier, 2010).
Crispin sued Christian Audigier claiming the company had used and sold his artwork for use
without his permission. Unlike the Romano court, the Crispen court found the plaintiff had a
personal right to privacy in his stored communications on social networking sites (p. 22). But
the court distinguished between private messages sent on social networking sites, and postings
like those found on a user’s Facebook wall. Private messages were protected from review, but
the public postings could be available for subpoena depending on Crispen’s privacy settings
(p. 78).
Indeed, placing more restrictive settings on her MySpace profile could have saved Cynthia
Moreno and her family the pain of embarrassment and ostracism. Moreno v. Hanford Sentinel,
Inc. (2009) arose as a result of a local newspaper publishing a post the college student made
on her MySpace page. Moreno wrote and posted, “An Ode to Coalinga,” a rant about how
much she hated her hometown as well as negative comments about the city and some of the
people who live there. Although Moreno removed the post only six days after publishing it, the
principal at the high school that her sister attended obtained a copy and passed it along to the
local paper, which published it in the letters to the editor section along with Moreno’s full
name. This resulted in death threats to Moreno and her family, forcing the family to move out of
town and to close their 20-year-old business.
The Moreno (2009) court affirmed the trial court’s ruling that Moreno failed to prove
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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invasion of privacy. The court asserted that in posting the ode to her MySpace profile, Moreno
engaged in “an affirmative act [that] made her article available to any person with a computer
and thus opened it to the public eye” (p. 1130). Moreno’s publication of her poem on the
Internet, therefore, excluded her from having any reasonable expectation of privacy in that
posting.
Copyright © 2011. Lexington Books. All rights reserved.
SOCIAL MEDIA PRIVACY UNDER THE LAW
Recall Justice Harlan’s two-part test for establishing whether an individual had a reasonable
expectation of privacy. First the court must examine whether the individual demonstrated that
they expected privacy in the information or activity in which they are engaged. Second, the
individual’s expectation must be one that society would find reasonable (Katz v. United States,
1967). With the exception of Crispen, the courts in the cases above found no expectation of
privacy that would be acceptable to society. Therefore, although the social media users may
have that thought their postings were private, the courts have rejected their claims. Further,
even affirmative steps taken to protect privacy on social media, such as the placement of
restrictions on who can view an individual’s profile, did not create a reasonable expectation of
privacy.
Sprague (2008) asserted the application of the law needs to change to reflect new modes of
communication, specifically, with regard to the idea that the possibility another person might
view Internet communications does not render those communications public. The cases
detailed above demonstrate that courts have not shifted their views on privacy in this manner.
In Moreno, for example, the court found that the woman’s MySpace postings were open for
public viewing; therefore, she had no expectation of privacy in that posting. It did not matter
that she, like the many people using social media, may have been speaking solely to her
friends.
Perhaps the courts’ ignorance of the culture of social media provides the rationale for a
decision like that in Moreno. Although it is well settled in offline situations that individuals
have no reasonable expectation of privacy in information and activities exposed to the public,
recall that in the digital world, the disclosure of information has benefits. In social media,
information disclosure is how people connect with friends and nurture those friendships.
This may demonstrate Abril’s (2008) concept of the debate between digital natives and
digital immigrants with respect to privacy. In the cases above, the courts, populated by those
who would be in the generation of digital immigrants, have asserted their conception of
privacy. That is, information is only private when you control it. If McMillen (2010) wanted to
control his private information, according to the court, he would not have posted his pictures to
his MySpace and Facebook profiles. This disclosure of information to a third party vitiated his
claim of privacy because he was no longer really in control of his information. Likewise,
Romano (2010) had lost control of her information even when she seemingly asserted control
by restricting access to her profile.
These court opinions seem to assert the only recourse for those wanting to protect their
privacy while using social media would be to either limit their interactions, or withdraw from
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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using these media altogether. The choices seem extreme with regard to personal liberty. Such a
choice definitely appears to reject Cohen’s (2008) analogy of the networked space to “home.”
If home is the place where an individual is most free and, for the most part devoid of
consequences, the cases demonstrate the consequences of using social media and may give
people pause with respect to using this liberty. The courts appear to define social media as a
public space where individuals have less of an expectation of privacy than they do in their
physical homes.
Copyright © 2011. Lexington Books. All rights reserved.
CONCLUSION
Privacy in the age of social media remains as complex as privacy in the off-line world.
Although the U.S. Supreme Court has provided some guidance, no exact definition exists as to
what is public or private in the physical world. It is well settled, however, that no reasonable
expectation of privacy exists in information or activities observable in public. The term
“public” is, perhaps, the cause of the difficulty in applying offline privacy principles to online
situations. Although recognizing that some of their personal information is available to a large
number of people, social media users assert that the information shared on social networking
sites is private. The courts continue, however, to reject the idea that society is prepared to
recognize a privacy interest in information available to many others. Although an increasing
number of individuals are now making their homes online, recent court decisions demonstrate
that they will not receive the high level of privacy protection that they would within their own
four walls.
The third stage in Lewis, Kaufman, and Christakis’ (2008) pattern of privacy on the Internet is
awareness (Lewis et al., 2008, p. 96). In the awareness stage, users themselves make
affirmative steps to protect their privacy. As a result, a boundary forms that delineates the
public and private spaces. The court decisions above, and those that are sure to follow, should
raise awareness among social media users that although the normative expectation would be to
retain a privacy interest in some of the information they have posted on social media, the
current standard rejects this expectation. Awareness does not, however, necessarily make the
lines between the public and private clearer.
In the future, courts may continue to use the digital immigrant view of privacy, and only
extend the reasonable expectation of privacy protection to social media users who have
attempted to control their information. In the alternative, the courts may take the digital native
view of privacy, and extend the reasonable expectation of privacy protection to whatever
information that social media users believe to be private. The courts may also take a view of
online privacy that straddles the center between these two extremes. This would require the
courts to examine the context of the information disclosed, including the perceived benefits of
disclosing the information and the custom and usage of the information. Such an examination
recognizes that no clear line exists delineating the private from the public. Until the courts
begin to perform this kind of analysis in social media privacy cases, users should refrain from
posting information that, if disclosed, would harm their interests.
Noor, A. H. S., & Hendricks, J. A. (2011). Social media : Usage and impact. Retrieved from http://ebookcentral.proquest.com
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