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In November of 2017, a federal appeals court rejected employment-related site Glassdoor’s claim that its users had a First Amendment right to anonymity that would protect their information from disclosure pursuant to a grand jury subpoena. The panel also sustained a contempt order that was entered by the district court to enforce the decision.  (In re Grand Jury Subpoena, No. 16-03-217, Civ. No. 17-16221, D.C.No. 2:17-mc-00036-DJH (9th Cir. Nov. 8, 2017)).  (We had previously covered an unrelated case involving anonymity of reviews on Glassdoor.com posted by former employees here.)

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).)

Emoticons – the often whimsical hieroglyphics that most so affectionately know as “emojis” – have become ubiquitous in modern digital communication not only by individuals but also by corporations as part of their advertising and marketing campaigns on social media. Emojis have also begun appearing as evidence in court cases.

A short, but fascinating, discussion between several experts in the fields of computer science, hieroglyphics, and social media of the impact emojis have had on our language can be found here. The crux of the discussion is that emojis can have a profound impact on the way we communicate. Essentially, the inclusion of a single emoji can alter the meaning of the accompanying text. Alexandre Loktonov, AHRC Fellow at the Kluge Center and an expert on hieroglyphics, likens emojis to what are known as “deteriminatives” in Egyptian hieroglyphics, or “signs, which, without having a phonetic value of their own, can ‘color’ the meaning of the preceding word or phrase.” In recent years, the nature of emojis has been addressed in several lawsuits, proving that courts may be recognizing the importance these characters have begun to have with respect to our language and communication.

In 2017, the Indiana Commission on Judicial Qualifications (the “Commission”) issued an advisory opinion that the conveyance of information via microblogging platforms, such as Twitter, does not constitute prohibited “broadcasting” under Rule 2.17 of the Code of Judicial Conduct. Under Rule 2.17, judges are required to prohibit the broadcasting of courtroom proceedings to the public except under a narrow set of circumstances. Although this issue may seem geographically limited at first glance, courts and commissions around the country are considering this issue as microblogging activity becomes more prevalent.

On March 8, 2017, federal Judge Sidney Fitzwater, of the North District of Texas, issued a memorandum opinion and order in Charalambopoulos v. Grammer, No. 3:14-CV-2424-D, 2017 WL 930819. The case had already been in litigation for years and involved allegations of domestic violence and defamation.  According to earlier opinions issued in Charalambopoulos, the parties had been staying in Houston, Texas where the defendant – a reality television star and former wife of Kelsey Grammer – was undergoing cancer treatment.  The parties, who were dating at the time, got into an argument at their hotel during the trip.  Days later, the defendant tweeted about the incident to her roughly 198,000 Twitter followers.

A 37 year old woman from Nottingham has lost a claim for future pain and suffering following failure by a hospital to notify her of a positive result of a sexually transmitted infection with the result that the infection was left untreated for a year.

On January 9, 2017, the Northern District of California granted Facebook’s motion to dismiss for claims brought under New Jersey’s Truth-in-Consumer Contract, Warranty, and Notice Act (“the TCCWNA”). In Palomino v. Facebook, Inc., a putative class of New Jersey residents challenged Facebook’s Terms of Service, which, among other provisions, require users to waive potential claims for misconduct such as deceptive and fraudulent practices. Plaintiffs argued that this violated two provisions of the TCCWNA that prohibit such waivers.  The case was resolved before advancing to the merits.

A carefully curated social media presence is a critical business requirement, but there are risks. One of these risks is unlawful content – be that unlawful content posted to your businesses’ own social media account (exposing the company to potential liability) or harmful content about your business (or its C-Suite or key personnel) posted on independent sites.

So how do you tackle unlawful content? Often the first point of call is the law of defamation. The UK is renowned as a claimant friendly jurisdiction for defamation litigation. With its widely respected court system and judiciary, the UK has been the forum of choice for international defamation disputes. Note that the rules have recently been tightened up with stricter thresholds brought in for defamation actions and a requirement, aimed at stopping “libel tourism,” that for claims against non-EU defendants the UK must be the “most appropriate place” in which to litigate (the Defamation Act 2013).

Service of process on a foreign defendant can be a major headache for U.S. plaintiffs, but social media is proving to be a creative solution when traditional methods have been demonstrated to fail.

We previously covered a New York federal court’s ruling that permitted the Federal Trade Commission to serve the Indian defendants, operating under the name PCcare, by email and Facebook. We also discussed a Kansas federal court’s ruling that denied service via Facebook as the sole means of service.

Since our last update, a federal trial court in Virginia has ruled in favor of allowing service by social media, adding to a growing trend in the U.S. federal courts.

On August 10, 2016, the United States District Court for the Northern District of California, in Fields v. Twitter, Inc., dismissed the plaintiffs’ complaint against Twitter with leave to amend. The plaintiffs’ complaint arose out of the deaths of Lloyd Fields, Jr. and James Damon Creach, two United States government contractors who were working at a law enforcement training center in Amman, Jordan. Fields and Creach were murdered at the hands of Anwar Abu Zaid, a Jordanian police captain who was inspired to commit the act after watching the ISIS execution of the Jordanian pilot Maaz al-Kassasbeh via a video that ISIS distributed through a Twitter account.

The plaintiffs’ claim alleged that Twitter violated parts of the Anti-Terrorism Act by knowingly provided material support to ISIS by permitting ISIS to use its social network as a tool for spreading extremist propaganda. Twitter’s primary argument for the dismissal of the plaintiffs’ claim was the application of Section 230(c)(1) of the Communications Decency Act (the “CDA”), which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Twitter argued that since Twitter’s actions constituted publishing activity, the plaintiffs’ claim is barred by the CDA.