Topic: Legal

Legal side of Reputation Management

Perry High School Suicides: Implications of Cyberbullying 0

Perry High School Suicides Students and parents at Perry Highschool say they want action after 3 students commit suicide since the beginning of the semester. The families of victims, including Kyliegh Crawford, who committed suicide in early November, said bullying is playing a large part in the tragedy. They say they want the school to make […]

The post Perry High School Suicides: Implications of Cyberbullying appeared first on Defamation Removal Law.

Source: Aaron Minc

Woman Fired For Pro-Trump Tweet Gets Unemployment Benefits–Waverly Heights v. Jungclaus 0

The woman photographed giving the finger to Trump's motorcade was also fired from her job. Could she get unemployment benefits too?

The woman photographed giving the finger to Trump’s motorcade was also fired from her job. Could she get unemployment benefits too?

I just blogged on a case involving Facebook’s suspension of a Bowling Green Massacre gaslighter. Today, I’m blogging about a woman fired for a pro-Trump tweet. It’s pretty clear my blogging queue will be overflowing with Trump-related litigation for years to come. #MALGA (Make American Litigation Great Again).

Kathleen M. Jungclaus was VP of Human Resources for Waverly Heights, a retirement home located in a Philadelphia suburb. On July 24, 2016, she tweeted (from a Twitter account I couldn’t find, so maybe it’s gone):

@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!

The employer said “AA” stands for “African-Americans,” which would give this tweet racial dimensions. Jungclaus alleged it stood for “Administrative Assistants.”

What should the employer do about this tweet? Trump was and remains a divisive figure. Philadelphia County voted overwhelmingly for Hillary over Trump, and more suburban Montgomery County (where Waverly Heights is located) still voted 58% for Hillary and 37% for Trump. And if “AA” stood for “African-American,” the tweet becomes even more contentious; Trump has virtually no popularity in the African-American community, which supported Hillary over Trump nationally around 9:1. So having a highly visible corporate officer take a potentially unpopular public stance–and positioning it as the widespread sentiment of coworkers–surely caused some consternation among the Waverly Heights community and Jungclaus’ superiors.

Still, employees are free to have independent political opinions and express them, right? Nope. Waverly Heights axed Jungclaus.

She sought unemployment benefits. Waverly Heights argued that its firing disqualified her for benefits. However, Waverly Heights’ arguments seemed fairly obviously pretextual, and the court awards unemployment benefits to Jungclaus.

Waverly Heights argued that she violated its social media policy. Yay for them for having a policy at all! It read (in part):

[Employer] has an interest in promoting and protecting its reputation[,] as well as the dignity, respect, and confidentiality of its residents, clients, and employees as depicted in social medial, whether through [Employer’s] own postings or that of others. Towards that end, [Employer] will actively manage the content of its social media sites to uphold the mission and values of the company. Also, [Employer] expects employees who identify themselves with [Employer] in either internal or external social media to conduct themselves according to this policy.

However, Jungclaus never identified her employer in her tweet, or apparently in her Twitter bio. The court notes that she was easily reidentified as working for Waverly Heights through a Google search, and she followed the Waverly Heights Twitter account. The court says neither of these facts meant that she had identified herself as “with” her employer.

This leaves open the possibility that a broader social media policy could lead to different results. However, a broader social media policy–say, one that restricted divisive political posts regardless of the employee’s self-identification with the employer–would run into other legal problems, such as potential NLRB issues. So perhaps Waverly Heights couldn’t regulate Jungclaus’ tweet; the narrow policy didn’t cover it, and a broader policy might be illegal.

Waverly Heights also claimed she violated its Communications Policy, which says that employees may not “link from a personal blog or social networking site to [Employer’s] internal or external website.” The Twitter follow did not violate this provision, either.

Finally, Waverly Heights claimed that it would have been wrong for her to take a political survey of employees. But, consistent with the modus operandi of Trump enablers, Jungclaus’ claim to have conducted an “informal survey” appears to be alternative facts. Instead, apparently she chatted with a few coworkers, not exactly what I consider a “survey” (Then again, we’re kidding ourselves if we think facts matter to anyone anymore).

WhileWaverly Height’s firing did not disqualify Jungclaus for unemployment benefits, it’s hard to say she’s a winner in this circumstance. First, she still got fired from her job of 20 years. (Though she’s filed a pending discrimination suit over that. #MALGA). Second, history will judge all Trump enablers harshly.

Case citation: Waverly Heights, LLC v. Unemployment Compensation Board of Review, 2017 WL 5241175 (Penn. Commonwealth Ct. Nov. 13, 2017)

Related Posts:

Freelance Blogger Denied Unemployment Insurance–In re Mitchell

Employee Kvetching About Job On Facebook Still Entitled To Unemployment Benefits

Employee Terminated For Ill-Advised Facebook Post Gets Unemployment Benefits

Nurse Properly Fired and Denied Unemployment Due to Facebook Rant

Employee’s Twitter Rant Means He Doesn’t Get Unemployment Benefits–Burns v. UCBR

Employee Terminated for Accessing ‘Inappropriate’ Websites not Entitled to Unemployment Benefits — Berglund v. ITI

Source: Eric Goldman Legal

Commemorating the 20 Year Anniversary of Zeran v. AOL 0

zeranYou’re probably already quite familiar with the Fourth Circuit’s 1997 in Zeran v. AOL. The case is one of the most cited Internet Law cases of all time, and it is a staple of Internet Law course syllabi around the country and the globe. To me, Section 230 and the Zeran ruling are equally essential; we don’t really get the full impact of Section 230’s immunity without Zeran’s broad statutory interpretation. For that reason, I (and others) attribute much of the Internet’s success to Zeran’s long shadow.

The ruling came out on November 12, 1997–20 years ago. To commemorate that anniversary, I worked with Prof. Jeff Kosseff (US Naval Academy) to assemble a package of essays examining the case from multiple angles. We gathered 23 essays from some of the biggest names in Internet Law, and published them. The essays roughly fit into four loose categories:

1) Historical perspectives, including Berman, Brill, Butler, Carome/Glynn, Goldman, Kosseff, Nelon, and Sutter.

2) Section 230 fans, including Cohn/Williams, Gellis, Heymann, Jain, and Zittrain (he might be classified as a not-fan, depending on your perspective).

3) Section 230 not-fans, including Bartow, Franks, Schwabach, and Sylvain. Note: while I don’t agree with these essays, we didn’t impose an ideological standard for inclusion into the package. We can’t fully understand the Zeran case without examining it from all angles.

4) Doctrinal implications of the case, including Ballon, Ford, Frye, Grimmelmann, Penney, and Speth.

My apologies if this sounds self-serving, but I think all of the essays are terrific. As Prof. Hurwitz tweeted, “Not a dud in the bunch!,” an assessment I agree with 100%. So I encourage you to read all of them. (Eventually I plan to make that easier by compiling them into an ebook). While all of the essays are worth your time, as an uber-geek of Section 230, I have an especially soft spot for the historical takes, including:

* Jerry Berman shines a spotlight on how the long-forgotten “Interactive Working Group” helped shape Section 230 during Congress’ chaos in 1995.

* Hillary Brill talks about her firsthand experience as eBay in-house counsel trying to defend an eBay executive from a prosecution in India, where Section 230 wasn’t applicable.

* Pat Carome represented AOL in the litigation. His essay with Cary Glynn (who did some great guest-blogging here on SESTA) talks about the fortuitous set of circumstances that contributed both to the favorable ruling and to its speed. This is by far the longest essay in the package, but if you read only one essay, this is it.

* My essay addresses “one of the greatest unsolved mysteries in internet law”–who attacked Ken Zeran? Spoiler alert: “after more than 20 years, it seems unlikely this cold case will ever be solved.”

* Jeff Kosseff analyzes the background of Judge Wilkinson, the opinion’s author, to consider what prompted him to write such a broad and defense-favorable opinion

* Gavin Sutter compared/contrasted the divergent development of US and UK law.

As the maxim goes, read the whole thing. I hope you enjoy reading the essays as much as I did.


Here is a complete rundown of the 24 essays (the 24th being my overview essay with Jeff):

Eric Goldman and Jeff Kosseff, Commemorating the 20th Anniversary of Internet Law’s Most Important Judicial Decision (overview essay)

Ian Ballon, “Zeran v. AOL’ and Its Inconsistent Legacy

Ann Bartow, “Section 230 Keeps Platforms for Defamation and Threats Highly Profitable

Jerry Berman, “Policy Architecture and Internet Freedom

Hillary Brill, “Sex, Scandal and Intermediary Liability: Imagining Life Without ‘Zeran v. AOL’”

Robert J. Butler, “How the Scam Artists at Stratton Oakmont Made ‘Zeran’ Possible and Unwittingly Saved the Internet

Patrick J. Carome and Cary A. Glynn, “Serendipity and Internet Law: How the ‘Zeran v. AOL’ Landmark Almost Wasn’t

Cindy Cohn and Jamie Williams, “20 Years of Protecting Intermediaries: Legacy of ‘Zeran’ Remains a Critical Protection for Freedom of Expression Online

Roger Allan Ford, “How the Supreme Court Ignored the Lesson of ‘Zeran’ and Screwed Up Copyright Law on the Internet

Mary Anne Franks, “Moral Hazard on Stilts: ‘Zeran’s’ Legacy

Brian L. Frye, “The Possible Redundancy of §230

Cathy Gellis, “The First Hard Case: ‘Zeran v. AOL’ and What It Can Teach Us About Today’s Hard Cases

Eric Goldman, “Who Cyber-Attacked Ken Zeran, and Why?

James Grimmelmann, “No ESC

Laura A. Heymann, “The Satellite Has No Conscience: §230 in a World of ‘Alternative Facts’”

Samir C. Jain, “The Non-Inevitable Breadth of the ‘Zeran’ Decision

Jeff Kosseff, “The Judge Who Shaped the Internet

Robert Nelon, “Zeran’s Failed Lawsuit Against an Oklahoma Radio Station

Jonathon W. Penney, “The Chilling Effect Claims in ‘Zeran v. AOL’

Aaron Schwabach, “Zeran v. America Online’ and the Development of Trolling Culture

Maria Crimi Speth, “Zeran v. AOL’: The Anti-Circumvention Tool

Gavin Sutter, “The UK’s Broad Rejection of the §230 Model

Olivier Sylvain, “AOL v. Zeran’: The Cyberlibertarian Hack of §230 Has Run Its Course

Jonathan Zittrain, “CDA 230 Then and Now: Does Intermediary Immunity Keep the Rest of Us Healthy?

Source: Eric Goldman Legal

Presentation on the First 18 Months of the Defend Trade Secrets Act 0

Earlier this month, I spoke at the California State Bar IP Section’s “IP Institute” in Newport Beach. My topic was “What’s Up With the Defend Trade Secrets Act?” I used the 60 minute session to look at what’s been happening in the 18 months since the act’s enactment. To prepare, I “borrowed” liberally from DTSA slide decks by other trade secret experts (including David Levine, Sharon Sandeen and Chris Seaman) and paid them great homage. That makes my slide deck a nice pastiche to some of the best DTSA slide decks of others. My slide deck.

Source: Eric Goldman Legal

Facebook Defeats Lawsuit By User Suspended Over ‘Bowling Green Massacre’–Shulman v. Facebook 0

bowling green massacreThis lawsuit is detritus from the KellyAnne Conway “Bowling Green Massacre” fiasco. You may recall that Conway, in her official White House role, referred to a “massacre” at Bowling Green that never happened. The plaintiff says he posted articles to Facebook allegedly showing that the media unfairly targeted Conway. The media publishers allegedly reported his posts as “spam” (though DMCA takedown notices would have made more sense…?), and Facebook subsequently suspended his ability to post on Facebook. His pro se lawsuit goes nowhere.

His Constitutional claims fails because Facebook isn’t a state actor, and 1983 claims have not succeeded against Facebook. Cites to Forbes v. Facebook and Young v. Facebook. The court sidesteps Section 230, but it should have also applied here.

The Americans with Disabilities Act claim against Facebook fails. The plaintiff alleged: “[a]s a Permanently Disabled American, Plaintiff relies upon means of communications and in specific, FACEBOOK.COM to stay in touch with family, friends, to stay current on and express his opinions and ideas with others. Suspension of Plaintiff[f]’s FACEBOOK.COM comment posting right represents an impediment to his supporting his recovery and adapting to his disabilities, over political differences, under the Americans with a [sic] Disabilities Act…” The court responds: “Plaintiff fails to allege any facts relevant to his ADA claim or even specify what part of the ADA Facebook allegedly violated.”

The New Jersey Law Against Discrimination claim against Facebook also fails. The court says this law only applies to employment discrimination, and the law doesn’t cover discrimination based on political affiliation.

There remain some interesting and underexplored issues about when, if ever, an Internet service violates state or federal antidiscrimination laws when exercising its editorial control. This case was not the vehicle to test those claims.

Instead, this would have been a great anti-SLAPP case., and it provides another data point in support of federal anti-SLAPP protection. It appears the plaintiff sought to rehabilitate Conway’s lies about a matter of substantial social importance: fake terrorism attacks on US soil by foreigners. We need a team effort–from the media to Internet platforms to each one of us–to combat these lies and discourage the government from making more. Indeed, I think Facebook’s continued success as a media platform depends on its efforts to reduce the visibility of people virally propagating and giving credibility to our government’s lies. We must ensure that the law does not hinder Facebook (and others) from doing this vitally important work.

Case citation: Shulman v. Facebook, Inc., 2017 WL 5129885 (D. N.J. Nov. 6, 2017)

Source: Eric Goldman Legal