United States: The Law And Business Of Social Media - Status Updates, Volume 7, Issue 4, July 2016

Welcome to the newest issue of Socially Aware, our Burton Award winning guide to the law and business of social media. In this edition, we take a look at courts’ efforts to evaluate emoticons and emojis entered into evidence; we describe the novel way one court addressed whether counsel may conduct Internet research on jurors; we examine a recent decision finding that an employee handbook provision requiring employees to maintain a positive work environment violates the National Labor Relations Act; we discuss an FTC settlement highlighting legal risks in using social media “influencers” to promote products and services; we explore the threat ad blockers pose to the online publishing industry; we review a decision holding that counsel may face discipline for accessing opposing parties’ private social media accounts; we discuss a federal court opinion holding that the online posting of copyrighted material alone is insufficient to support personal jurisdiction under New York’s long-arm statute; and we summarize regulatory guidance applicable to social media competitions in the UK.

All this—plus an infographic illustrating the growing popularity of emoticons and emojis.

Mixed Messages: Courts Grapple with Emoticons and Emoji

By John F. Delaney

Emoticons—such as :-)— and emoji—such as —are ubiquitous in online and mobile communications; according to one study, 74 percent of Americans use emoticons, emoji and similar images on a regular basis.

Given their popularity, it comes as no surprise that courts are increasingly being called upon to evaluate the meaning of emoticons and emoji that are included in material entered into evidence, an exercise that has highlighted just how subjective—and fact-specific—interpretations of these symbols can be.

For example, in an opinion last year dismissing a male law school student's suit against local police and a female classmate for having the male student formally investigated based, at least in part, on text messages that he had sent, a federal district court in Michigan held that the male student's text messages showed that he may have had an intent to harass the female classmate despite "the inclusion of the emoticon, a '-D,' which appears to be a wide open-mouth smile." The court held that the emoticon "does not materially alter the meaning of the text message," in which the male student otherwise wrote that he wanted to do "just enough to make [the female student] feel crappy."

On the other hand, in a separate case, also arising in Michigan, the Michigan Court of Appeals held that the ":P" emoticon accompanying a comment allegedly accusing a city worker of corruption made it "patently clear that the commenter was making a joke."

Here are some other notable instances in which emoticons and emojis were among the evidence courts were asked to evaluate:

  • In a sexual harassment case brought by the female co-CEO of a Delaware corporation against her partner, opinion issued last summer, the Delaware Chancery Court held that a "smiley‑face emoticon at the end of [the defendant's] text message suggests he was amused by yet another opportunity to harass" the plaintiff.
  • In the January trial of a California man accused of operating a black market called Silk Road over the Internet, the judge instructed the jury members that they should take into account the emoji included in the social media posts and other electronic communications submitted into evidence, stating that the emojis are "part of the evidence of the document." (The defendant, Ross Ulbricht, was ultimately convicted of all seven of the counts he faced; the government's evidence that he ran "Silk Road's billion-dollar marketplace under the pseudonym the Dread Pirate Roberts was practically overwhelming.")
  • In a petition for certiorari by Anthony Elonis, a Pennsylvania man whose conviction for posting threatening status updates to Facebook was ultimately overturned by the U.S. Supreme Court last year, Elonis cited his inclusion of the emoticon ":-P" several times as part of his arguments that:
    (1) he lacked the intent required for conviction; and (2) his posts were easily misunderstood, and communications that are subject to misunderstandings shouldn't be criminalized. Holding that "Elonis's conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of "awareness of some wrongdoing."" The Supreme Court's opinion didn't mention emoticons at all, however.

Each of these decisions involved a court's assessment of a lengthy set of facts, of course. Context clearly counts. The point is that, in the words of WIRED's Julia Greenberg, "When the digital symbol for a gun, a smile, or a face with stuck-out tongue comes up in court, they aren't being derided or ignored. Emoji matter."

Interpreting them will continue to be a challenge for courts. Emoticons and emojis are often ambiguous, sometimes supporting the accompanying text, sometimes undermining it. A smiley face with a tongue sticking out that accompanies a message purporting to confirm a deal could indicate the sender's happiness that the deal has been concluded, or it could indicate that the sender's purported confirmation is a joke.

Further complicating the interpretation of emojis is the fact that the same emoji character will have a different appearance when viewed on different platforms. For example, the popular "grinning face with smiley eyes" emoji that, say, a Microsoft platform user sees is not identical to the "grinning face with smiley eyes" emoji that, say, a Google platform user sees—even if the emoji was sent by the former to the latter. Moreover, a recent study found that the differences in an emoji's appearance across platforms can result in different emotional responses to the emoji based on the platform from which it is viewed. As a result, a court seeking to interpret an emoji will need to determine in each situation which version of the emoji to consider: the version that appeared to the sender of the communication at issue or the version that appeared to the recipient of that communication?

It's been said that one shouldn't send a message that he or she wouldn't want to see on the front page of the New York Times. I'd like to suggest a corollary rule: If you want a message to be free from ambiguity, don't include an emoticon or emoji in the message.

Judge in High-Profile Case Obtains Attorney Agreement Not to Engage in Juror Social Media Snooping

By Malcolm K. Dort and J. Alexander Lawrence

It seems that almost everyone uses social media nowadays. Of course, this means that most every juror is a social media user, as well as that courts are dealing with the thorny questions that arise out of the proliferation of social media usage among jurors.

Like the long-standing practice of warning jurors not to talk about the case with friends and family or to read press reports about the case during the course of trial, courts now routinely caution jurors not to send messages about the case through social media, tweet about the case or look for reports about the case on social media sites. Courts are also taking notice of the potential pitfalls that arise when attorneys poke around prospective jurors' social media sites to try to decide who may be a friendly (or unfriendly) juror.

Recently, a federal court in the Northern District of California addressed this subject in the high-profile copyright case Oracle v. Google. The case concerns allegations that Google unlawfully incorporated parts of Oracle's copyrighted Java code into the Android operating system.

In a recent order, the court asked counsel for Oracle and Google to refrain from conducting any Internet research on potential or empaneled jury members prior to the trial verdict. Because an outright ban would have the unintended consequence of prohibiting the lawyers for the parties—but no one else in the courtroom—from accessing online information on the jurors, the court opted instead to seek the parties' agreement to a voluntary ban. As added incentive to reach agreement, the court offered counsel for both sides extra time to screen potential jurors during voir dire. Both parties ultimately agreed to the voluntary ban.

The court cited three reasons to support its decision to seek the ban.

First, the court reasoned that jurors, upon learning that counsel was investigating them, might be tempted to investigate the lawyers and the case online themselves. Further because there is plenty of information online about the high-profile dispute, the court saw an "unusually strong need" to deter any jury member from conducting out-of-court research. The court noted, for example, that a Google search for "Oracle v. Google" yields almost one million hits, and that both parties have hired online commentators to promote their respective sides of the case on blogs and other websites. Because the large amount of online commentary in particular could present a significant risk to a fair hearing, a ban would help ensure that the jury reaches a verdict on the basis of trial evidence only.

Second, the court ruled that online jury research could enable counsel to make "improper personal appeals" to individual jurors during jury argument. For instance, if counsel learns through a social media search that a juror's favorite book is To Kill a Mockingbird, counsel could, in an attempt to capture the attention of an empaneled juror, craft an argument regarding copyright law that weaves in references to that book and the recent death of Harper Lee. The court reasoned further that such calculated appeals would be "out of bounds" because the judge might not "see what was really in play."

Third, a voluntary ban would protect the privacy of potential jurors. Because "[t]hey are not celebrities or public figures," the court ruled that the privacy of potential jurors should not be invaded except to reveal bias or a disinclination to follow court instructions. In anticipation of the argument that potential jurors choose to expose themselves to public scrutiny through their social media privacy settings, the court ruled that "understanding default settings is more a matter of blind faith than conscious choice."

The court's approach creates new precedent in the area of jury selection procedure, where, to date, parties have been left with little guidance. Indeed, the court itself recognized that "there are precious few decisions" that address the specific issue of whether counsel may conduct Internet and social media research on jurors in their cases.

Existing guidance on this issue stems largely from the American Bar Association (ABA), which has stated that counsel's "passive review" of a juror's website or social media profile, while refraining from making access requests to jurors, does not violate ethical rules on ex parte jury communications. That being said, even the ABA has cautioned that courts may limit social media research in certain cases.

Similarly, the New York State Bar Association (NYSBA) advised recently that, prior to jury selection, judges should address and resolve, on a case-by-case basis, use of social media by attorneys for the purpose of investigating jurors. Relevant questions to consider include what social media services attorneys may review; which social media platforms counsel or his/her reviewing agent (e.g., a jury consultant) is a member of; and whether results of social media monitoring will be shared with opposing counsel and the court.

The Oracle v. Google decision represents a key step toward marking clear boundaries for social media and Internet investigation by counsel. Further, the decision shows that, left unchecked, online jury research could lead to improper jury appeals, unwarranted privacy invasions and—perhaps most importantly— compromise of the fair trial process.

As social media use continues to proliferate, we can expect that courts and bar associations will provide further guidance on how attorneys can properly use social media to research the background of both prospective and sitting jurors.

To continue reading this article, please click here

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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