United States: The Law And Business Of Social Media - Status Updates, July 22nd, 2015

Last Updated: July 24 2015
Article by Aaron P. Rubin

There oughta be a law? As we've reported previously, states all around the country have enacted laws that criminalize the posting of revenge porn—nude photographs published without the subject's consent, often by an ex-lover seeking retribution. To avoid running afoul of the First Amendment, these laws are typically fairly limited in scope and provide for relatively minor penalties. California's anti-revenge-porn law, for example, categorizes posting revenge-porn as a misdemeanor, and contains several exceptions. Among other things, California's law only applies if the poster intended to cause the victim emotional distress—a characteristic that improves the law's chances of surviving a First Amendment challenge. Arizona's anti-revenge porn law, in contrast, contains no such limitation and provides that violations constitute a felony. As a result, the ACLU argued that Arizona Revised Statute §13-1425 could lead to a felony conviction for posting a photograph "even if the person depicted had no expectation that the image would be kept private and suffered no harm," such as in the case of "a photojournalist who posted images of victims of war or natural disaster." Based on such alleged overreach, a group of Arizona booksellers, publishers, librarians and photographers filed Antigone Books v. Brnovich—a lawsuit to halt enforcement of the Arizona law. A joint final settlement between the Arizona attorney general and the plaintiffs in that case resulted in a July 2015 federal court order that does, in fact, scrap §13-1425.  In her discussion of the settlement, an ACLU staff attorney said that the organization nevertheless views revenge porn as a serious concern. She lauded social media platforms' and online search companies' decisions to heed revenge-porn victims' take-down requests as victories "achieved without a new criminal law and without a new inroad against the First Amendment."

Blogs of war. The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of a civil rights claim brought by a woman who was the subject of negative articles and social media updates written by a Los Angeles county prosecutor and posted to the prosecutor's personal blog and Twitter account. According to the opinion, the prosecutor, Patrick Frey, posted to his blog eight unfavorable articles about the plaintiff, Nadia Naffe, and "tweeted several dozen threatening and harassing statements" about her. The blog posts and tweets called Naffe, among other things, a "smear artist" and a "liar," and accused Naffe of having filed frivolous lawsuits against James O'Keefe, a friend of Frey's with whom Naffe had had a falling out. The Ninth Circuit held that Frey had not violated Naffe's First Amendment constitutional right to petition the government for redress of grievances pursuant to 42 U.S.C. § 1983 because the posts and tweets weren't related to his work as a county prosecutor. The court noted, among other things, the fact that Frey's disparaging comments were sent from Frey's personal Twitter account and blog, both of which specify that they reflect Frey's "personal opinions" and that they do not contain statements made in an "official capacity." The Ninth Circuit also noted that the posts and tweets were time stamped outside of Naffe's office hours.

A good catch. While the list of options for online dating hopefuls continues to multiply—there are now dating services specifically for farmers, people living gluten-free lifestyles and fire-fighter aficionados—it seems many of the most popular personals sites are merging under the same umbrella. IAC/InterActiveCorp's Match Group subsidiary, the owner of Match.com, Tinder and OKCupid, among others, just snapped up PlentyOfFish for $575 million. PlentyOfFish, a British Columbia-based dating site that's free to use but offers upgrades for a fee, currently has 3.6 million active daily users. Its founder and creator, 36-year-old Markus Frind, built the site without any venture capital funding and still owns 100% of it. IAC, meanwhile, owned 20% of the online dating market even before the PlentyOfFish acquisition, which is expected to close in the fourth quarter.

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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