Legal Pitfalls of Social Media Usage

Chapter Fourteen
Legal Pitfalls of Social Media Usage
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 societys 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 Queens 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 dont
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 Loves feedback, the Boudoir Queen sued for defamation (libel) under
California law. Loves attorneys initially responded to Simorangkirs allegations by claiming
that Love was merely warning others about Simorangkirs pattern of criminal and bad faith
conduct (Motion to Strike at 3, Simorangkir v. Love, 2009). Loves 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 societys 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 Loves
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, Loves 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 ones 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 its 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 Publg Co., 2006, p. 839). Horizon alleged that Bonnens 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 Horizons 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 Bonnens 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 Bonnens 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 plaintiffs claims.
The claim against Facebook fell prey to a provision of the
(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 plaintiffs 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 ones adolescent
child from posting such material on a private Facebook page (Order Dismissing Remaining
Claims at 7, Finkel v. Dauber, 2010). Although Finkels 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.
INVASION OFPRIVACYAND OTHER BASES OFCIVIL 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 individuals right to privacy with the speakers rights to freedom of expression
and the publics 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 patients
medical file to the patients 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. 3839). 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. 4344). 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 Morenos 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 courts ruling as to the newspaper, but they did appeal the trial courts 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,
Cynthias 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 Morenos 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
principals 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 PRIVACYINVASIONS
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 Clementis
suicide began on September 19, 2010, when Clementi asked his roommate, Dharun Ravi, for
privacy. Ravi went to his friend Molly Weis 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 mollys 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 Clementis 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, Clementis parents filed notice of their intent to sue Rutgers University for not doing
more to protect their son, who evidently reported Ravis actions to his dorms resident advisor
prior to his suicide (Fanelli, 2010). Certainly, Clementis 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.
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 Clementis 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 Clementis.
It is unclear whether Clementis 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 victims 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 , 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 daughters former friend
Megan Meier (Steinhauser, 2008, para. 9). After winning Meiers 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, Youre 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 Meiers 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 MySpaces terms of service) to
obtain information, thereby committing computer fraud (Steinhauser, 2008).
The trial court ultimately overturned the jurys 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 websites 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
Meiers 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.
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
victims 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
Created from apus on 2020-01-14 07:47:17. 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 victims 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 perpetrators 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 Hills 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
Created from apus on 2020-01-14 07:47:17. Copyright 2011. Lexington Books. All rights reserved.
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 friends 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.
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).
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Retrieved from http://www.citmedialaw.org/threats/horizon-group-v-bonnen
Fanelli, J. (2010, December 22). Tyler Clementis parents may sue Rutgers over sons suicide after roommates 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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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?id=11812453
Heller, M. (2009, October 26). Judge allows Twitter-libel suit against rocker Love. On Point. Retrieved from
http://www.onpointnews..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 students 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 Publg 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..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
Created from apus on 2020-01-14 07:47:17. Copyright 2011. Lexington Books. All rights reserved.

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