Connecticut Business Litigation Blog : Connecticut Business Lawyer & Attorney : N. Kane Bennett : Aeton Law Partners LLP : Hartford, Middletown, Glastonbury

The impact of social media  (Facebook, Twitter, LinkedIn, etc) continues to grow in legal matters including litigation and trial.  The court decisions cut across numerous areas from employment law and personal injury to privacy rights and defamation.  Social media use has involved all the key players in lawsuits inclding judges, jurors, consultants, attorneys, reporters, and witnesses.  Lawyers are using Facebook to screen jurors; jurors are using Facebook to post about the case they are sitting on; judges are checking Facebook to make sure jurors are not using it; jury consultants are following Twitter to give advice on trial strategy to attorneys during the trial; and reporters are giving first hand accounts of trials 140 characters at a time. Bottom line: Social media is everywhere and lawyers and litigants should pay attention.

In keeping up to date on the topic, here are some new resources and  articles on social media and litigation and trial:

Vianei Lopez Robinson published an article for Texas Lawyer featured on Law Technology News that covers some recent decisions involving Facebook and the discovery of public and non-public information.  The article also discusses some of the ethical implications for attorney's "friending" litigation opponents. 

Dan Schwartz's Connecticut employment law blog continues to cover social media for employers. He recently posted a new update for employers on the newest social network site, Google +. 

Corey Dennis, who previously submitted to this blog a great summary on the basics of Connecticut civil procedure, has just published a comprehensive law review article on social media and the various laws implicated by its use. Here is a link to his article for the Massachusetts Law Review. 

 Leita Walker and Joel Schroeder published a thorough review of social media "crashing into the courtroom" in an article posted by Law.com.  The article describes several recent cases, juror misconduct with social media, attorney use of social media in discovery and cases ranging from employment to trademark matters.

A year or two ago it used to be relatively easy to track social media and the impacts on lawsuits and litigation. There were very few cases, and I posted about most of them.   Now, there are new reports and articles,  cases, and legal issues involving social media almost daily.   Just today,  a Google search of social media and trial brings up articles about the Roger Clemens perjury trial and the Casey Anthony murder trial. 

The bottom line is social media is here to stay and has clearly "crashed into the courtroom."  Attorneys, and especially trial lawyers and litigators, have to become familiar with all the legal implications as social media just might crash into one your cases.   

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As mentioned before on this blog, Courtney Love was sued for defamation arising out of her notorious Twitter posts. As the case heads to trial on February 6th, she has taken down her Twitter page. Recall that Love was sued by fashion designer Dawn Simorangkir for a series of allegedly defamatory tweets. (She called her a drug-pushing prostitute for starters). THR, Esq Bloggers Matt Belloni and Eriq Gardner have a good summary of what’s expected at the upcoming trial.  Simorangkir’s lawyer claims it is the first case of its kind, and he may be right.

Legal observers are paying attention to whether the court or jury gives more leeway to someone posting on Twitter because tweets by their very nature are opinionated posts. According to legal blog watch, the case is also likely to feature another first, a social media expert.   Jessie Stricchiola is the expert.  Apparently, as a social media expert, she will testify as to the nature of Twitter posts, number of readers, and credibility.

My own opinion is that there should not be any special consideration for commentary on Twitter.  The posts or tweets should be judged under the same standard as any other potentially defamatory statement.   Twitter is now part of the mainstream media. Take for example the recent Hayes trial in Connecticut. There were numerous reporters “live tweeting” from the courtroom. Most media personalities and journalists have twitter accounts where they regularly report and tweet facts. The reverse is also true. Journalists are now reading Twitter posts to get news stories. 

The statements at issue here appear to be defamatory (assuming she is not a drug pushing prostitute) and stated as fact.  I think the “forgive me, it was just a tweet" defense is not going to work.  The idea that statements posted on Twitter are somehow less defamatory ignores the reality of the Internet.  Perhaps Love's lawyer is banking on the jury not understanding Twitter.  The counter to that defense was the social media expert.  If the expert is able to help the jury understand Twitter, and assuming there is no truth to these statements, I suspect the bigger issue will be whether any damages can be established. We will have to wait and see. I will do another post about this case once the trial finishes. 

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The tragic suicide of Rutgers University student, Tyler Clementi, shows the potential devastating impacts arising from misuse of the Internet and social media sites such as YouTube, Facebook, and Twitter.  This incident also serves as a reminder of the rapid sea change that technology brings and how our laws struggle to keep pace especially when it comes to new forms of media and the Internet.  I have seen two trends develop as it relates to lawsuits and social networking litigation. Both of these trends will continue. 

The first trend concerns the potential problems and risks to business owners over social media.  These issue have been well documented for over a year now.  Some of these issues include privacy rights, defamation, trade secrets, non-competition agreements, electronic monitoring, evidentiary use, and concerns over social media policies in the workplace. 

The second trend that has developed is the unfortunate increase and rise in cyber bullying, harassment, and invasion of privacy from users posting content on Blogs, Facebook, MySpace, Twitter, and YouTube.  The sad fact is that this often involves school age children as victims of cyber attacks or as users who do not fully understand the significance and devastation that might result from posting content online to the entire world.

As another glaring example, Anderson Cooper of CNN reported just last night on the disturbing story of Chris Armstrong, an openly gay student at the University of Michigan.  The story detailed how a Michigan Assistant Attorney General, Andrew Shrivell, was outright harassing and stalking Mr. Armstrong both in person and on a blog.   Mr. Shrivell's conduct was revolting and disturbing for anyone let alone a law enforcement official.   His actions are an example of someone running wild on the Internet with harassment.

Individuals facing harassment or bullying over the Internet often feel as if there is nothing that can be done to stop the conduct.  For example, as of last night, the Michigan Attorney General had done nothing to discipline Shrivell for his conduct based on purported concerns for "First Amendment" rights.  Although the available laws for bringing a lawsuit for improper use of the Internet continue to evolve, an attorney can help a victim of Internet or online harassment.  In short, something can be done.  Some of the legal theories available for a civil lawsuit include defamation, negligent misrepresentation, invasion of privacy, stalking statutes, and infliction of emotional distress.  

The explosive growth of use of social media is not going to end. Instead, these trends will continue to dominate and grow.   As use and misuse of social media and the Internet continues, litigation attorneys would be well served to stay on top of the evolving legal issues.  Businesses and individuals will continue to need legal representation  to address these growing trends.

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In a previous post, I linked to a story about a tenant who was sued for libel after posting an allegedly disparaging comment on Twitter about her apartment. The Twitter lawsuit was a hot topic on the internet for some time.   Many commentators believed it was only a matter of time before Twitter resulted in a damage award for libel.  Not so in this case.   A Chicago judge has tossed out the lawsuit.  Reports indicate that the Judge made a specific finding that the "tweet was nonactionable as a matter of law."   

In this case,  the tenant made a Twitter post that her apartment was moldy.  Before bringing the suit, the landlord might have considered how many people actually read the Tweet.  My guess is probably a few hundred at best.  After the lawsuit was filed, millions read about it.  At the time of the lawsuit, the landlord company issued a statement saying "we're a sue first, ask questions later kind of organization."   That is not a wise strategy in general, but in particular when it comes to an Internet defamation case.   Anything involving a lawsuit and social networking has a good chance of being picked up in the media and in various places on the Internet. 

The Chicago court's ruling that the statement on Twitter failed to meet the standard for defamation seems correct if you consider Connecticut's defamation standard, which is similar.  The takeaway here is that not every negative statement qualifies as a defamatory statement.  This does not mean a post on Twitter cannot constitute defamation.  In fact, Twitter postings remain fair game for defamation suits, and we are likely to see more of these claims. 

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In the Business Torts category of this blog, I recently covered the basic law in Connecticut concerning interference with business relationships.  Today's post concerns another business tort known as "defamation" and how it intersects with the growing use of social networking sites.

There already have been several lawsuits for defamation arising out of use of social networking sites, such as Twitter and Facebook. For example,  The California Defamation Blog lists several celebrities involved in defamation cases, including Courtney Love who was sued by a fashion designer for defamation after a series of derogatory Twitter posts by Love.  Craig Kanalley of Chicagonow.com reported that a property owner sued a tenant for disparaging Twitter comments. The Chicago Tribune recently reported on a defamation lawsuit brought by a mother and her son after a phony Facebook profile was created showing the son was a racist.   

Should Connecticut businesses be concerned?  Clearly, the type and variety of these suits are on the rise. In legal circles, these type of claims have a category of their own called "cyber slander" or "internet defamation."  Given the popularity in use of social networking sites, and the ease in which statements can be broadcast to millions, it is safe to  predict that more defamation cases will be filed in the future. 

Connecticut businesses can be affected by defamation suits involving social networking sites and the internet in a number of ways, such as:

• Employees making comments about a competitor
• Employees making comments about supervisors or co-employees
• Employees making comments about the company's products
• Competitors making derogatory comments about the company
• Phony Facebook or Twitter profiles
• Derogatory comments about the company 

In Connecticut, defamation encompasses defamation by spoken (slander) and written (libel) words. In general, to raise a proper claim for basic defamation, a plaintiff must show that:

1. A defamatory statement was made
2. The statement identified the plaintiff to a third person
3. The statement was published to a third person
4. The plaintiff's reputation suffered injury as a result of the defamatory statement

In regards to businesses, there is also a defamation claim sometimes referred to as "commercial disparagement" or "trade libel."  For this type of claim, a plaintiff must prove disparagement of a business' goods or services by falsehoods published or communicated to a third person.

With the ease of publication to millions over the internet, it is easy to see how someone might publish a defamatory comment whether it be on a blog, social networking site, or website.   Chances are, if you are in business, either you, someone who works for you, or a competitor has commented about the business in cyberspace.

For a business, the best way to avoid a lawsuit for defamation as a result of employee use of sites such as Twitter and Facebook is to have a written policy that governs employee use.  The details of each policy will differ depending on your business, but clearly the policy should prohibit any defamatory or derogatory comments about the business, employees, or competitors.

In situations where a competitor or customer disparaged your business' products or services, a business may want to consider legal action and determine if grounds exist to issue a cease and desist letter, a take down letter, or initiate a lawsuit.  Internet defamation can ruin a business' reputation overnight and should be addressed immediately regardless of whether the business pursues legal action.   

For a business, whether legal action is taken may depend on the severity of the disparagement and the damage done.  In some cases, a cease and desist or retraction is a practical solution especially when a defamation suit would bring added attention to the matter.  In other cases, legal action, such as a defamation lawsuit, may be required to stop ongoing damage or serious problems.

Regardless of the situation, Connecticut businesses should, at a minimum, monitor cyberspace for defamatory comments.  Comments that might lead to a lawsuit could come from your own employees, a competitor, or a disgruntled customer.  A written policy is a good way to minimize risks of employee comments.  As for competitors and customers, Google alerts is a good way to monitor use of a business' name on the Internet. The alert will send you an email every time your business name is found on the internet. 

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