United States: What’s In A Like?

Last Updated: November 7 2014
Article by Aaron P. Rubin and Cara Ann Marr Rydbeck

In the pre-Facebook era, the word "like" was primarily a verb (and an interjection sprinkled throughout valley girls' conversations). Although you could have likes and dislikes in the sense of preferences, you could not give someone a like, claim to own a like or assert legal rights in likes. Today, however, you can do all of these things and more with Facebook likes and similar constructs on other social media platforms, such as followers, fans and connections. This article explores the emerging legal status of likes and similar social media constructs as the issue has arisen in a number of recent cases.

Likes as Protected Speech

One of the early cases to delve into the legal status of likes was Bland v. Roberts, which addressed the issue of whether a Facebook like constitutes protected speech for purposes of the First Amendment. In Bland, five former employees of the Hampton Sheriff's Office brought a lawsuit against Sheriff Roberts, alleging that he violated their First Amendment rights to freedom of speech and freedom of association when he fired them, allegedly for having supported an opposing candidate in the local election. In particular, two of the plaintiffs had "liked" the opposing candidate's Facebook page.

Although (as we discussed previously) the district court held that merely liking a Facebook page was insufficient speech to merit constitutional protection, on appeal the Fourth Circuit reversed and held that liking a Facebook page does constitute protected speech. The Fourth Circuit looked at what it means to like a Facebook page and concluded: "On the most basic level, clicking on the 'like' button literally causes to be published the statement that the User 'likes' something, which is itself a substantive statement." The Fourth Circuit also found that liking a Facebook page is symbolic expression because "[t]he distribution of the universally understood 'thumbs up' symbol in association with [the] campaign page, like the actual text that liking the page produced, conveyed that [the plaintiff] supported [the opposing candidate's] candidacy." The Court analogized liking the opposing candidate's Facebook page as the "Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."

Likes as Property

Perhaps most interestingly from a business perspective, various cases have explored the question of ownership of a like (and similar concepts, such as a Twitter follower or LinkedIn connection).  In Mattocks v. Black Entertainment Television LLC, the plaintiff Mattocks created an unofficial Facebook fan page focused on the television series The Game, which at the time was broadcast on the CW Network (BET later acquired the rights to The Game from the CW Network). BET eventually hired Mattocks to perform part-time work for BET, including paying her to manage the unofficial fan page. During the course of that relationship, BET provided Mattocks with BET logos and exclusive content to display on the fan page, and both Mattocks and BET employees posted material on the fan page. While Mattocks worked for BET, the fan page's likes grew from around two million to over six million.

Mattocks and BET began discussions about Mattocks' potential full-time employment at BET but, at some point during these discussions, Mattocks demoted BET's administrative access to the fan page. After losing full access to the fan page, BET asked Facebook to "migrate" fans of the page to another official Facebook fan page created by BET.  Facebook granted BET's request and migrated the likes to the other BET-sponsored page.  Facebook also shut down Mattocks' fan page. Mattocks then sued BET in the Southern District of Florida, alleging, among other things, that BET converted a business interest she had in the fan page by migrating the likes. Mattocks argued that the page's "significant number of likes" provided her with business opportunities based on companies paying to have visitors redirected to their sites from the page.  BET moved for summary judgment.

The district court granted BET's motion for summary judgment on Mattocks' conversion claim, holding that Mattocks failed to establish that she owned a property interest in the likes. The court explained that "liking" a Facebook page simply means that the user is expressing his or her enjoyment or approval of the content, and that the user is always free to revoke the like by clicking an unlike button. Citing Bland (discussed above), the court stated that "if anyone can be deemed to own the 'likes' on a [Facebook page], it is the individual users responsible for them."  Given the tenuous relationship between the creator of the Facebook page and the likes of that page, the court held that likes cannot be converted in the same manner as goodwill or other intangible business interests.

In PhoneDog v. Kravitz, the district court for the Northern District of California denied defendant Kravitz's motion to dismiss plaintiff PhoneDog's claims for, among other things, conversion of the Twitter account "@PhoneDog_Noah." PhoneDog, a mobile news and reviews website, employed Kravitz as a product reviewer and video blogger. Kravitz maintained the Twitter account "@PhoneDog_Noah," which he used to post product reviews, eventually accumulating 17,000 Twitter followers. At the end of Kravitz's employment, PhoneDog requested that Kravitz relinquish use of the Twitter account. Kravitz refused, changed the Twitter handle to "@noahkravitz" and continued to use the account.

PhoneDog claimed an "intangible property interest" in the Twitter account's followers, which PhoneDog compared to a business customer list. Kravitz disputed PhoneDog's ownership interest in either the Twitter account or its followers, based on Twitter's terms of service, which state that Twitter accounts belong to Twitter and not to Twitter users such as PhoneDog. Kravitz also argued that Twitter followers are "human beings who have the discretion to subscribe and/or unsubscribe" to the account and are not PhoneDog's property. The court held that there was insufficient evidence to determine whether or not PhoneDog had any property interest in the Twitter followers, and denied Kravitz's motion to dismiss. PhoneDog and Kravitz subsequently settled the dispute so we will never know how the court would have ruled on this issue, but the court's refusal to dismiss PhoneDog's ownership claims may indicate that, at least in some circumstances, Twitter followers may constitute property.

The district court in the Eastern District of Pennsylvania looked at a similar issue involving ownership of a LinkedIn account in Eagle v. Morgan. Plaintiff  Linda Eagle established a LinkedIn account using the email address of Edcomm, the banking education company that she co-founded with Clifford Brody. As CEO of Edcomm, Brody embraced LinkedIn as a sales and marketing tool for the Edcomm business. Although Edcomm did not require employees to maintain or subsidize the maintenance of LinkedIn accounts, it did develop policies with respect to employee use of such accounts.

When Eagle (and Brody) were involuntarily terminated after Edcomm's acquisition by another company, Edcomm employees accessed Eagle's LinkedIn account (using the password she had disclosed to certain employees) and changed its password, effectively locking Eagle out of the account. For more than two weeks, Edcomm had full control of the account. During that time, it replaced the account information regarding name, picture, education and experience with information about Sandi Morgan, the newly appointed Interim CEO of Edcomm. As a result, during this time period, an individual conducting a search on either Google or LinkedIn for Eagle (by typing in "Linda Eagle") would be directed to a URL for a web page showing Sandi Morgan's name, profile and affiliation with Edcomm. LinkedIn subsequently intervened and restored Eagle's access to the account.

Eagle filed suit against Edcomm, alleging compensatory damages of between $248,000 and $500,000. Eagle used a damages formula that attributed her total past revenue to business generated by the number of connections associated with the LinkedIn account in order to establish a dollar value per LinkedIn connection, and then used that value to calculate her damages for the period of time that she was unable to access the LinkedIn account. The court found for Eagle on a number of her claims—including claims for unauthorized use of name under a Pennsylvania statute, invasion of privacy and misappropriation of publicity—but the court ultimately held that Eagle's damages request was not supported by sufficient evidence, citing, for example, her failure to connect her past sales to use of LinkedIn.

Although Eagle's claim was unsuccessful, the use of LinkedIn connections to support her damages theory demonstrates the potential monetary value of these connections and the importance for companies to be clear with their employees in delineating ownership of social media accounts and associated likes, followers, fans and connections.

Likes as Concerted Activity

There have been a number of National Labor Relations Board (NLRB) decisions that examined whether an employee's statements on social media constitute "concerted activity"—activity by two or more employees that provides mutual aid or protection regarding terms or conditions of employment—for purposes of the National Labor Relations Act (NLRA).

In Pier Sixty LLC, the administrative law judge decided that a Facebook posting made by an employee about his supervisor constituted protected concerted activity under the NLRA, despite being sprinkled with obscenities. The decision held that the posting constituted part of an ongoing sequence of events related to the employees' dissatisfaction with the manner in which they were treated by their managers. The administrative law judge specifically mentioned that because the employee was friends on Facebook with several other employees, he could anticipate that those other employees, who were also concerned with the supervisor's demeaning treatment, would see the posting (at the time, the employee had set his Facebook page so that it could only be viewed by his friends).

Similarly, in Richmond District Neighborhood Center, a Facebook conversation between two employees was found to be concerted activity under the NLRA because it involved the employees voicing their disagreement with the management's running of the center. However, the administrative law judge ultimately concluded that the activity was not protected under the NLRA because it "jeopardized the program's funding and the safety of the youth it serves" and demonstrated that the two employees were "unfit for further service."

Although these two NLRB cases involved postings and conversations on Facebook rather than just likes, it would not be a huge leap for a future NLRB case to hold that a Facebook like constitutes concerted activity in certain circumstances, particularly in light of the Fourth Circuit's decision in Bland discussed above.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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