Social Media Influencers Beware!

In Petunia Products, Inc. v. Rodan & Fields, LLC and Molly Sims, the United States District Court for the Central District of California held that a social media influencer – a person “presumed to have the power to affect the purchase decisions of others” – could be sued for direct trademark infringement in connection with the products the influencer endorsed.

Young influencer stands in front of camera.

In this case, the plaintiff, a cosmetics company, owned the BROWBOOST®  trademark, which it used in connection with its eyebrow product. Defendant Rodan & Fields (“R&F”), a competitor of plaintiff, marketed its own eyebrow product called “Brow Defining Boost.” Plaintiff claimed the R&F product infringed on its trademark and that R&F’s promotion of its product on social media with the hashtag #BROWBOOST diluted plaintiff’s social media presence. Plaintiff also alleged that a social media blogging influencer employed by R&F, defendant Molly Sims, posted a blog which infringed on plaintiff’s trademark because the blog promoted the allegedly infringing product. Sims moved to dismiss the complaint, claiming plaintiff failed to adequately plead claims for direct trademark infringement, contributory infringement, false advertising, and unlawful and unfair business practices.

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Texas Enjoined from Enforcing Law Targeting Some Social Media Platforms

The August 13, 2021 Trending Law Blog post discussed how the United States District court for the Northern District of Florida enjoined Florida from enforcing a law that targeted some, but not all, social media platforms based on the content of the speech hosted on their websites. On December 1, 2021, a federal district court in Western District of Texas, following arguments heard in NetChoice LLC v. Paxton, relied on the First Amendment and similarly enjoined Texas from enforcing a law which would have limited a large number of social media companies from moderating content on their websites.

The Texas statute – HB20 – prohibited certain social media companies from “censoring” users of a platform based on the users’ viewpoints. The statute, however, only applied to certain social media companies, i.e., ones with more than 50 million users and which allowed users to create accounts so they could communicate with others by posting information, images, comments or messages. The law also imposed disclosure and operational requirements on the social media platforms and allowed Texas users or people doing business in Texas to seek injunctive relief and attorneys’ fees if they believed their viewpoint speech had been improperly censored. The statute similarly allowed the Texas Attorney General (defendant Ken Paxton) to seek injunctive relief and attorneys’ fees for violations of the law. Two social media trade associations filed suit to prevent Texas from enforcing HB20 based on, among other grounds, the First Amendment.

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Will a Decision of the High Court of Australia in a Case Involving Defamation and Social Media Have Ramifications Elsewhere?

On September 8, 2021, the High Court of Australia ruled 5-2 in Fairfax Media Publications Pty Ltd. v. Voller that media companies in Australia could be held liable for defamation as a result of comments left by third-parties on the companies’ social media pages. Although the case is not binding on courts in the United States, it could embolden plaintiffs here to pursue similar causes of action, so itAustralian High Court is worthwhile to review the facts and legal analysis set forth by the High Court in its Voller decision.

The facts of the case were fairly simple. The defendants, newspaper publishers and operators of television stations, maintained Facebook pages which hyperlinked to stories on the defendants’ websites. The defendants invited readers who used Facebook to comment about the articles on the media companies’ Facebook pages. The plaintiff, Dylan Voller, claimed that the companies posted news articles about his prior incarceration in a juvenile detention center, which resulted in comments alleged to be defamatory of him on the companies’ Facebook pages. Contending that the media companies were “publishers” of the comments made by readers of their Facebook pages, Voller filed suit.

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Southern District of New York Rejects Ninth Circuit’s Copyright Analysis Regarding Embedded Images

In a recent case, Nicklen v. Sinclair Broadcast Group, Inc., the United States District Court for the Southern District of New York, rejecting the rationale of a case decided by the United States Court of Appeals for the Ninth Circuit in 2007, denied a defendant’s motion to dismiss a complaint filed by plaintiff who posted a video on Instagram and Facebook only to have defendants embed the video in an online article posted on their websites without having first obtained a license from plaintiff.

The case involved video footage shot by plaintiff, the author and registered owner of a video showing an emaciated polar bear wandering around the Arctic. The plaintiff posted the video to his Instagram and Facebook accounts along with a caption which advised others seeking to use the content commercially to obtain a license to do so. Defendants published an article on their websites about starving polar bears and, using a Facebook and Instagram embedding tool, included the plaintiff’s video in their article without having first obtained a license. Defendants failed to remove the video from their websites after plaintiff sent a takedown notice, leading plaintiff to file a lawsuit which claimed that defendants “infringed his exclusive reproduction, distribution, and display rights” under U.S. copyright law.

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N.J. Supreme Court Dismisses Disciplinary Charges Against Attorney for Alleged Ethics Violation Involving the Use of Social Media

            The June 4, 2020 Trending Law Blog post discussed the New Jersey Supreme Court’s Disciplinary Review Board (“DRB”) recommendation to the Supreme Court that a New Jersey attorney receive an admonition for instructing a paralegal to “friend” an adverse, represented party on Facebook in order to gather non-public information about the individual, a plaintiff in a personal injury action. On September 21, 2021, the Supreme Court issued a decision which unanimously rejected the recommendation of the DRB.

            In the underlying matter, a personal injury plaintiff became aware that the defendants’ attorney’s office had contacted him through Facebook without first contacting his attorney, and, claiming that the contact violated New Jersey Rule of Professional Conduct 4.2 (Communication with Person Represented by Counsel), the plaintiff filed an ethics grievance against the lawyer. The DRB found “clear and convincing evidence that [counsel’s] conduct was unethical.”  Following that determination by the DRB, the Supreme Court conducted a de novo review of the record, including a decision by a Special Master (who had presided over a three day hearing on the matter and took testimony from witnesses) that the ethics complaint against the attorney should be dismissed. The Supreme Court agreed with the Special Master and held that “the disciplinary charges set forth in the complaint against [the attorney] have not been proven by clear and convincing evidence and must be dismissed.”

            In reaching this decision which rejected the DRB’s finding that the attorney violated the Rules of Professional Conduct, the Supreme Court recognized that in 2008 – when the complained of conduct occurred – the attorney was unfamiliar with the workings of Facebook and did not appreciate what “friending” meant on the social media platform. The Court also took notice of the fact that no jurisdictions in the country had issued any ethics opinions in 2008 regarding whether sending a “friend request” to a represented party constituted a violation of RPC 4.2. Finally, the Court also paid deference to the Special Master’s findings on witness credibility. As a result, the Supreme Court found, based on its independent review of the record, that the disciplinary charges against the attorney had not been proven by clear and convincing evidence.

            But the Court did not stop there. It took the opportunity presented in this disciplinary matter to provide guidance to attorneys with regard to their use of social media:

Attorneys should know that they may not communicate with a represented party about the subject of the representation — through social media or in any other manner — either directly or indirectly without the consent of the party’s lawyer. Today, social media is ubiquitous, a common form of communication among members of the public. Attorneys must acquaint themselves with the nature of social media to guide themselves and their non-lawyer staff and agents in the permissible uses of online research. At this point, attorneys cannot take refuge in the defense of ignorance. We refer this issue and any related issues to the Advisory Committee on Professional Ethics for further study and for consideration of amendments to our RPCs.

Opinion at 4. The Court also re-emphasized its conclusions about “the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms” later in its decision (at 32-36).

            Thus, the Supreme Court of New Jersey addressed head-on the admonition of comedian and former U.S. Senator Al Franken, who wrote, “Our laws need to reflect the evolution of technology and the changing expectations of American society.” 

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For any questions relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Florida Enjoined from Enforcing Law Targeting Some Social Media Platforms

Earlier this year, Florida enacted Senate Bill 7072 – The Stop Social Media Censorship Act – which imposed requirements and prohibitions on some, but not all, social media platforms relating to the speech hosted on their websites. The Act was scheduled to take effect on July 1, 2021, but on June 30, 2021, Judge Robert L. Hinkle of the United States District Court for the Northern District of Florida entered a preliminary injunction in NetChoice LLC, et al. v. Ashley Brooke Moody, et al., which enjoined various Florida officials from taking any steps to enforce the Act because he found the view-point based legislation was preempted by federal law and violated the First Amendment.            

The Florida legislation at issue, among other things, prohibited social media platforms from:

  • Barring candidates for office from their sites;
  • Using an algorithm to put a candidate’s posts in the feed of a user who wished to receive it or to exclude the post from the feed of a user who does not wish to receive it;
  • Taking action to “censor, deplatform or shadow ban” a “journalistic enterprise” based on the content of its publication or broadcast; and
  • Changing their user rules, terms and agreements more often than every 30 days
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U.S. Supreme Court Upholds Student’s Off-Campus Free Speech Rights

The September 1, 2020 Trending Law Blog post discussed how the United States Court of Appeals for the Third Circuit in Mahanoy Area School District v. B.L., 964 F.3d 170 (2020), upheld a public school student’s First Amendment rights based on social media posts she made off school grounds, after school hours, and without school resources.  The court found that the student’s free speech rights were violated by the school’s decision to suspend her from the school’s junior varsity cheerleading squad because of posts she made to Snapchat.

The case was subsequently appealed to the Supreme Court of the United States by the school district, which asked the Court to consider whether public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school when the student’s speech occurs off campus. The Supreme Court granted the petition for certiorari and, in a decision rendered on June 23, 2021, held that while schools may have an interest in regulating some off-campus speech, the facts here were not sufficient to overcome the student’s free speech rights.

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An Attorney’s Consequences for Making Injudicious Comments on Social Media

In a 28 page decision issued earlier this year, which the Supreme Court of Tennessee described as “a cautionary tale on the ethical problems that can befall lawyers on social media,” the court increased a lawyer’s 60 day suspension from practicing law to a four year suspension because of comments the lawyer made on Facebook.  The comments instructed one of the attorney’s Facebook friends on how to shoot a person she had broken up with and to make the shooting appear to be one done in self-defense.

Although the Facebook posts were ultimately removed at the lawyer’s urging (in another Facebook post he made), screenshots captured by the potential shooting victim were brought to the attention of the county district attorney general, who, in turn passed them along to the Tennessee Board of Professional Responsibility (“Board”).  The Board investigated and found that the attorney’s advice about how to engage in criminal conduct and avoid arrest or conviction violated RPC 8.4 (a) and 8.4(d) of Tennessee’s Rules of Professional Conduct and, following a hearing, the Board’s hearing imposed a 60 day suspension of the lawyer’s license to practice law.

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The Donald Trump Twitter Case: Vacated and Dismissed as Moot by the Supreme Court

The June 14, 2018 post “The President May Not Block Twitter Followers Because They Disagree With Him Politically” reported how the District Court in Knight First Amendment Inst. at Columbia University v. Trump, 302 F.Supp.3d 541 (S.D.N.Y. 2018) found that then-President Donald Trump’s decision to block certain social media users from accessing his Twitter account was unconstitutional viewpoint discrimination. Then, the July 11, 2019 post, “Affirmed: President Trump Cannot Block Critics on Twitter”, reported that a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit affirmed the district court’s decision.

The case was thereafter appealed to the Supreme Court of the United States, which failed to address the appeal on its merits. Instead, on April 5, 2021, the Supreme Court, which retitled the case Biden v. Knight First Amendment Inst. at Columbia University (because Donald Trump was no longer President), issued a one paragraph decision (with a concurrence written by Justice Thomas), that simply vacated the lower court judgment and ordered the Second Circuit “to dismiss the case as moot.”

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For any questions relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Court Upholds Employee’s Termination for Violating Employer’s Social Media Policy

On March 4, 2021, the United States Court of Appeals for the Third Circuit affirmed a decision of the United States District Court for the Western District of Pennsylvania which ruled in Ellis v. Bank of New York Mellon Corp. that an employee could be discharged by her employer based on her social media posts.

In Ellis, the plaintiff, who was a white employee of a bank, sued her employer after it terminated her for violating the ban’s Code of Conduct and Social Media Policy based on a post she made over the weekend on her personal Facebook account. Her post advocated violence toward demonstrators protesting the death of a black man who was killed by police officers in Pittsburgh. Because plaintiff’s Facebook account was set to “public,” the post was visible to anyone on Facebook, even those who were not plaintiff’s friends. As a result of the post, the bank received numerous complaints including several that questioned whether the bank shared its employee’s values and encouraged violence.

Following an internal investigation, which included an interview with plaintiff, who was an at-will employee, the bank notified her that she was terminated immediately. The bank explained that “she violated the Code and Social Media Policy because her post was offensive, demonstrated poor judgment, showed a lack of respect for others, harmed [the bank’s] reputation and encouraged violent behavior.”  Plaintiff filed suit against the bank for race discrimination under Title VII, contending that she was fired because of her race.

The district court rejected plaintiff’s argument and granted summary judgment in favor of the bank, concluding that plaintiff failed to make out a prima facie case of discrimination and that she could not rebut the bank’s legitimate, non-discriminatory reasons for terminating her. The Third Circuit affirmed.

Although Ellis, which was deemed “not precedential” by the Third Circuit, was a race discrimination case that was decided by applying “the familiar three-step framework articulated in McDonnell Douglas Corp. v. Green” typically used in private actions challenging employment discrimination, the case does have significant social media implications for employees. Ellis clearly demonstrates that employers can take disciplinary action against employees if their social media posts violate company policy, even when made from their personal social media accounts during non-working hours.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.