October 2017

We have previously written about social media posts and advertisements being used as evidence in a variety of legal cases (most recently, a post relating to emojis).  A federal court in Pennsylvania recently used two social media advertisements—from a source the court could not identify—as evidence to support a finding of “willfulness” and to award 33% in enhanced damages.  (J&J Sports Productions, Inc. v. Ramsey, Civ. No. 17-1942 (E.D. Pa. Sept. 27, 2017) (2017 WL 4287200).)

In April 2017, based on some key social media evidence, the Central District Court of California decided UL LLC v. Space Chariot Inc., 2017 WL 1423706 (C.D. Cal. Apr. 20, 2017).  The court held on summary judgment that Space Chariot had infringed and counterfeited UL’s trademark, and awarded one million dollars in statutory damages.  UL, a holder of various safety certification marks, complained that Space Chariot, a manufacturer of “hoverboard” toys, had violated UL’s trademark rights by displaying UL’s safety certification marks on its hoverboards without permission.  The court summarized the issues: “The gravamen of UL’s complaint is that [the defendants] are using UL marks on various websites to falsely represent that Space Chariot’s goods—namely, hoverboards—have been certified by UL.” 

In a digital age where there are billions of active social media users globally it is conceivable that employees engage in activities and posts on media platforms, that may result in their dismissal. However, an employee’s social media posts can also be scrutinised outside of the misconduct space. In Nilan v Nthabeni (2017) 5 BLLR 521(LC), the South African court considered an employee’s social media post to decide whether the employee’s resignation was due to his desire to work for a competitor or to his wife having an affair with his employer.

The United States Department of Homeland Security (“DHS”) published, on September 18, 2017, in the Federal Register, a notice that it would begin collecting certain information relating to immigrants’ use of social media as part of the National File Tracking System of Records. Since 1944, so-called Alien Files have been the official record system of immigrants, who have each received an Alien Registration Number. These files have historically contained basic information, such as each immigrant’s name, date of birth, date of entry into the United States, country of birth, parents’ names, and naturalization information, if applicable. The files also generally include any record of interactions between each immigrant and the United States government.

Chatbots are computer applications programmed to mimic human behaviour using machine learning and natural language processing. Chatbots can act autonomously and do not require a human operator. Given this freedom, chatbots do not always act in a manner that is fair and neutral – they can go wild with unintended consequences. For example, a chatbot “e-shopper” was given a budget of $100 in bitcoin and quickly figured out how to purchase illegal drugs on the Darknet. Another chatbot was programmed to mimic teenager behaviour using social media data. By the afternoon of her launch, she was firing off rogue tweets and taken offline by the developer. Chatbots were pulled from a popular Chinese messaging application after making unpatriotic comments. A pair of chatbots were taught how to negotiate by mimicking trading and bartering and created their own strange form of communication when they started trading together. Online dating sites can use chatbots to interact with users looking for love and increase user engagement. Chatbots can go rogue in chat rooms to extract personal data, bank account information, and stoke negative sentiment. Chatbots are increasingly being used by businesses as customer service agents. Even these legitimate and well-meaning corporate chatbots may also go wild.