Topic: Legal

Legal side of Reputation Management

New Draft Article: “Judicial Resolution of Nonconsensual Pornography Dissemination Cases” 0

I’ve posted to SSRN a new article titled Judicial Resolution of Nonconsensual Pornography Dissemination Cases. I co-authored it with Angie Jin, a recent Cornell Law alum. The paper is in draft form, and we would gratefully welcome your comments.

The article originated in late 2014, when I noticed a spate of rulings in nonconsensual pornography cases (such as the Sayer and Osinger cases). I planned to blog those cases at Forbes but never got a chance. Meanwhile, additional cases kept pouring in. I noticed that plaintiffs seemed to be winning in court regularly–outcomes which seemingly conflicted with the commonly held view that the legal system fails victims. By the beginning of 2016, I was sitting on more than a dozen cases. Fortunately, around that time, Angie asked if she could guest-blog. After some back-and-forth, I asked if she would work with me to write up the cases. After we kept finding more and more cases, we decided to compile the nonconsensual pornography dissemination cases as comprehensively as we could and turn the project into an article. In the end, we compiled 87 cases–a bigger number than we expected, though we likely captured only a small fraction of the total universe.

Even though it’s not comprehensive, we believe the compilation is helpful. First, we have researched and aggregated a number of cases that have been underreported or never reported at all. Indeed, because of non-standard nomenclature on the topic, I think we’ve found numerous cases that no one had previously spotted as nonconsensual pornography cases. Second, by putting all of the cases together, we can provide some compelling evidence of certain patterns and pathologies to supplement individual anecdotes. Third, the compilation lets us generate some rudimentary statistics, such as charts of longest prison sentences and biggest civil damages awards. Finally, the compilation provides a path to systematically evaluate common stereotypes, such as the empirical basis for the victim advocacy community’s antipathy towards Section 230. (Spoiler: Section 230 casts a very small shadow over the actual cases in the compilation, though it surely deterred others from being brought).

While we have done some pretty extensive research into the topic, we know we are missing cases that fit in the compilation’s scope. That’s where you come in: *please please please* send us leads, tips and references to other cases we should include. And of course, we’d appreciate any other comments you have. We plan to circulate the article for publication in the “August window” (whatever is left of it).

The paper abstract:

Nonconsensual pornography dissemination has emerged as one of the key social issue of the digital age. In response, legislators are rapidly adding new laws to combat it. However, these laws supplement an extensive body of civil and criminal laws that already address many of the same concerns.

To get a better sense of the regulatory scope of the existing laws, we compiled eighty-seven enforcement actions involving nonconsensual pornography disseminations dating back to the 1980s. This compilation provides a useful baseline to critically evaluate any new laws against nonconsensual pornography dissemination.

Source: Eric Goldman Legal

How Should a Lawyer Respond to a Yelp Review Calling Him “Worst. Ever.”?–Spencer v. Glover 0

(Spoiler alert: suing the client is not the correct answer).

The Opinion

Glover hired and then fired Spencer as his divorce lawyer. Glover then posted this Yelp review:

Worst ever. Had to fire him after I gave him a chance for well over a year. Paid him his $2,500 retainer, then paid him another $2,500 shortly after … and I still owe him another several thousand dollars! … all for his hunt-and-peck filing typing b.s. while he makes me watch. I’d be willing to wager that he was sitting on it and running the bill up until I produced money that she had not gotten her hands on. There was none that she had not gotten her hands on. She admitted that she spent the $40k in the safe. My order is _still_ based on substantially higher income earned the hard way in the Middle East, supporting my family by supporting those who protect our freedom. The arrears [have] become astronomical and ORS is threatening to take my license and passport … Yelled at me once when I called to ask him about something his office had sent me that day. Told me to “GOOGLE IT!” Worst. Ever. Filed a Utah Bar complaint and strongly considering suing him. Just have to find someone to do it.

(Note: Glover posted a second Yelp review 6 months later, but the follow-up does not appear to be at issue).

Spencer demanded that Glover remove the review. When Glover refused, Spencer sued for defamation and related claims. The district court granted Glover’s motion to dismiss. The appeals court affirms.

The court identifies 6 potentially defamatory claims in Glover’s review:

(1) “Worst ever”
(2) “Had to fire him after I gave him a chance for well over a year”
(3) “all for his hunt-and-peck filing typing b.s. while he makes me watch”
(4) “I’d be willing to wager that he was sitting on it and running the bill up until I produced money that she had not gotten her hands on”
(5) “Yelled at me once when I called to ask him about something his office had sent me that day. Told me to ‘GOOGLE IT!’”
(6) “Filed a Utah Bar complaint and strongly considering suing him.”

Let’s focus on #1: “Worst ever,” later reiterated as “Worst. Ever.” In effect, to win this lawsuit, Spencer will need to show that he isn’t the “worst ever” lawyer. The court says the phrase can’t be objectively verified, so it’s rhetorical hyperbole. Undeterred, Spencer shows that he has practiced 25 years without any professional discipline, so (by inference) those who have been professionally disciplined during that time are “worse” than he is. The appellate court throws some serious shade on this argument:

This argument makes sense if a reader would likely understand the phrase “worst ever” in a strictly literal sense. But no reader would. “Worst ever” is a common colloquial phrase used to express a strong negative opinion. When a person declares that he or she just went on the worst date ever, no reasonable listener would understand that statement as a claim that the speaker exhaustively researched all the dates in the history of dating, developed objective scoring criteria, and determined as a matter of fact that last night’s date was worse than dates that ended in death, violence, or vomiting in a restaurant.

Rather than stopping there, the court applies Godwin’s law:

Likewise, if a person declares that his doctor is the worst ever, no reasonable listener would understand the statement to mean that the doctor was worse than Dr. Josef Mengele.

burn meme

I don’t know Terry Spencer or his strengths and weaknesses as a lawyer, but I find it hard to believe any lawyer would argue in court that he or she can’t be the “worst” lawyer because there are even worse lawyers. It’s usually not a successful brand-building exercise to differentiate your brand from bad competitors. Consumers will often link that brand to its competitive set, in effect anchoring the brand to the undesirable brands. Spencer also got a full blast of the Streisand Effect AND a published court opinion roasting him.

The rest of the opinion isn’t as exciting. Spencer acknowledged #3 and #4 weren’t capable of objective verification. The court says #2 isn’t either. The court says #5 and #6 are objectively verifiable. Still, the court says everyone reading Yelp reviews knows the context:

Online reviews communicate a person’s experience with and opinion of a business…The presence of Glover’s objectionable statements in an online review platform signals to readers that he was communicating his negative opinion about Spencer.

The court continues:

Glover used hyperbolic phrases throughout the review. Given this context, “[i]t is unlikely that any reader would take [the review] at face value,” because “most readers would view it as exaggerated commentary expressing [Glover’s] frustration.” For example, readers are unlikely to take literally Glover’s statement that Spencer was the “[w]orst ever,” but rather would interpret it as conveying Glover’s general dissatisfaction with Spencer’s performance. For these reasons, the full context of the online review reveals it as an expression of opinion.


* Online Defamation Exceptionalism. We’re seeing a growing divide between offline and online defamation jurisprudence. Let me highlight three divergences:

– Section 230, of course, means that online publishers aren’t liable for defamation when their offline counterparts may be.
– hyperlinks act as citations that can convert fact-like statements into opinion-like recapitulations of the linked sources. Ex. Redmond v. Gawker, Seldon v. Compass.
– courts think Internet readers are more likely to discount fact-like statements online and to assume they are rhetorical hyperbole. See, e.g., LeBlanc v. Skinner, Seldon v. Compass Restaurant, Chaker v. Mateo, Sandals v. Google, DiMeo v. Max, Finkel v. Dauber, and Bellavia Blatt v. Kel Partners. This case extends that canon. The court basically says that Yelp readers will assume that strongly worded opinions are just venting, so readers will discount any fact-like claims accordingly.

* We Need a Federal Anti-SLAPP Law. Glover won the case quickly, but I believe he will still bear the defense costs. Utah has a weak/old-school anti-SLAPP law that doesn’t protect him. A federal anti-SLAPP law would immediately fill the gaps in Utah’s anti-SLAPP coverage, provide more protection for defendants like Glover, and possibly discourage this lawsuit from ever being brought.

* The Importance of Hassell v. Bird. Recall that Spencer just wanted the review removed. If it were good law, would the Hassell v. Bird appellate court ruling have helped him achieve that outcome? Here, Glover showed he was willing to fight in court, so Spencer could not have gotten a quick-n-easy default judgment against Glover. Still, as Eugene Volokh has demonstrated, there are a wide range of shady practices that plaintiffs can use to get court removal orders without a direct lawsuit against the author. So here we have an appellate court confirmation that a consumer’s review isn’t defamatory, yet if the California Supreme Court revives the Hassell v. Bird appellate court ruling, aggressive plaintiffs could still find a way to scrub it.

* What Should Spencer Have Done? Although not perfectly analogous, doctors and lawyers face many of the same considerations and constraints when their customers post negative reviews. I wrote a brief essay describing the protocols for doctors aggrieved by patients’ reviews. Unhappy lawyers might follow this protocol too.

[Venkat’s two cents: As a keen student of lawyer personal branding, I loved this case and post. It’s an odd decision from a branding perspective to sue a former client over an online review. Still, maybe sitting silent in the face of being an accused “hunt-and-peck” typist was a bridge too far?]

Case citation: Spencer v. Glover, 2017 WL 1422981 (Utah Ct. App. April 20, 2017)

Prior blog posts on Yelp Cases

* Dozen Amicus Briefs Oppose the Worst Section 230 Ruling of 2016 (and One Supports It)–Hassell v. Bird
* Ninth Circuit Criticizes Attempts to Plead Around Section 230–Kimzey v. Yelp
* The Internet Rallies Against A Terrible Section 230 Ruling–Hassell v. Bird
* Yelp Isn’t Liable For User-Submitted Photos Of Businesses–Albert v. Yelp
* Yelp Forced To Remove Defamatory Reviews–Hassell v. Bird
* Ninth Circuit Says Yelp Doesn’t Extort Businesses–Levitt v. Yelp
* Does Yelp Have The ‘Most Trusted Reviews’? A Court Wants To Know More
* Yelp Wins Another Section 230 Case–Kimzey v. Yelp
* Yelp Gets Another Anti-SLAPP Victory in Lawsuit Over Consumer Review—Bernath v. Tabitha J.
* Blasting Your Landlord Online? Pick Your Words Wisely
* Dentist’s Defamation Lawsuit Against Yelp Preempted by Section 230–Braverman v. Yelp
* You Shouldn’t Need a Copyright Lawyer to Pick a Dentist–Lee v. Makhnevich
* Building Owner Can’t Discover the Identity of Tenant Who Writes Bashing Yelp Review
* Yelp Defeats Legal Challenge to Its User Review Filter
* Colocation America, Inc. v. Archie Garga-Richardson
* Yelp Gets Complete Win in Advertiser “Extortion” Case–Levitt v. Yelp
* Dentist Pays Sizable Penalty for Not Knowing 47 USC 230–Wong v. Jing
* Yelp Beats “Implied Extortion”/”Pay-to-Play” Lawsuit in Round #1–Levitt v. Yelp
* Dentist Review on Yelp Gets Partial Anti-SLAPP Protection–Wong v. Jing
* Yelp Wins 47 USC 230 Dismissal of Dentist’s Lawsuit–Reit v. Yelp

Source: Eric Goldman Legal

Combating Fraud: Kelly / Warner On Google’s De-Indexing Policy Change & Protecting Legal Clients 0

Over the years, attorneys Aaron Kelly and Dan Warner have helped — and continue to help — defamation victims reclaim their good names. Kelly and Warner afforded hundreds of libel victims reprieve from unjust reputation attacks by working with Google’s de-indexing program. However, the search behemoth recently announced changes to its policy.

That said, the change is not stopping their firm from assisting people who are suffering through unfair censure.

Protecting Websites From Liability

Considered one of the most impactful U.S. Internet laws, Section 230 of the Communications Decency Act confers immunity to ISPs for third-party defamation. In other words, it’s the statute that absolves Facebook (for example) from taking the fall for defamatory statements posted by users. Parties can successfully sue persons who post defamatory statements on the platform, but not the social media site. Moreover, Section 230 doesn’t force Internet service providers to remove defamatory statements — even when presented with a court order.

Working With Section 230 In the Past

So, if websites aren’t required to remove libelous content, how can defamation victims fight back against unjust online rants? For years, Google “de-indexed” (i.e., removed pages containing defamatory material from search engine results) web pages, if presented with a court order or judgment indicating a given statement was defamatory.

Google Changed Its De-Indexing Policy

Unfortunately for defamation victims, Google recently announced that it would no longer honor every court order or judgment in libel cases; the operative word being “every.” Apparently, the company formed a committee that now decides on whether or not a given court ruling is worthy of the voluntary de-indexing policy. The elements considered by Google’s de-indexing committee are unknown, but we’d like to think they consider all valid court orders for de-indexing.

So people are wondering: What criteria does Google’s review committee follow — if any at all?

A Troubling De-Indexing Decision By Google

When discussing the issue with attorneys Dan Warner and Aaron Kelly, they indicated that Google’s recent decision to honor individual judgments appears to be completely arbitrary. For example, Google declined to act on a hard-fought ruling– even after two years of litigation. Strangely and troublingly, without explanation, Google informed Kelly / Warner that it decided not to take action.

Kelly / Warner Adds Checks To Combat Fraudulent De-Indexing Efforts

Pioneers in Internet defamation law, Dan Warner and Aaron Kelly always do their utmost to ensure their firm handles cases within legal confines.  For example in 2016, although not required by law, Kelly / Warner instituted a policy requiring defendants in certain cases to sign notarized verifications — attesting under penalty of perjury — that all statements made to Kelly / Warner about the alleged defamation were accurate. They rightly believed that such a requirement would prevent fraudulent conduct by desperate third parties and victims. Unfortunately, suspicions have now been raised about the extent to which third-parties and victims went to obtain de-indexing orders, including engaging in suspicious notarizations to side step Kelly / Warner’s safeguards.  This demonstrates just how desperate victims of Internet defamation can get, and what that desperation can lead to.

In an attempt to further combat and prevent individuals from using Kelly / Warner to engage in suspicious activity, and possibly obtaining fraudulent court orders, Aaron Kelly and Dan Warner have implemented additional measures as they deemed appropriate, under the circumstances, to confirm the identities of individuals involved in a potential case to assure against fraud.

Under no circumstances will Dan Warner and Aaron Kelly be deterred from trying to help legitimate victims of Internet defamation obtain relief. However, those who seek to use the services of Kelly/ Warner, to defraud or harm anyone, including third parties and especially courts, should seek legal representation elsewhere.

The post Combating Fraud: Kelly / Warner On Google’s De-Indexing Policy Change & Protecting Legal Clients appeared first on Kelly / Warner Law | Defamation Law, Internet Law, Business Law.

Source: Kelly Warner Law

Faulty Mobile Device User Interface Jeopardizes Uber’s Contract Formation–Metter v. Uber 0

Screen Shot 2017-04-21 at 9.00.54 AMThis is a lawsuit against Uber alleging that it improperly assessed a cancellation fee without advising the rider in advance. Uber sought to compel arbitration. The court declines.

The arbitration clause is contained in Uber’s terms of service, and the court considers whether the rider agreed to the terms. The court focused on the registration process. The court notes that, during the sign-up process, an alert states “BY CREATING AN UBER ACCOUNT, YOU AGREE TO THE TERMS OF SERVICE & PRIVACY POLICY.” The terms of service were actually linked from the “TERMS OF SERVICE” text. When the plaintiff entered his credit card information, however, a numerical keypad popped up and this keypad “obstructed the previously visible terms of service alert”.

The court says enforceability of the terms depends on whether the user had “reasonable notice” of the terms of service (citing Nguyen). Reasonable notice means either actual or constructive notice, and constructive notice is where the consumer is on inquiry notice and “takes an affirmative action to demonstrate assent to them.”

Plaintiff raised several arguments as to why he did not assent: (1) the alert is not sufficiently conspicuous; (2) the alert is confusing and does not call out the waiver of the right to jury trial; (3) the alert is a “browsewrap” agreement; and (4) the pop-up blocked his view of the terms of service.

The court dismisses the first three arguments, specifically noting that Uber’s terms are not a browsewrap and there is no special requirement to call out arbitration in this sort of an assent. However, as to the keypad blocking his view of the terms, the court agrees. Uber argued that he would have viewed this alert before he went to enter his credit card information, but the court says there is nothing in the process that would lead to the conclusion that he would have necessarily looked at the terms before. There was no instruction telling him to scroll down, and of course the payment screen is the screen where consumers would expect to see the operative terms. This is fatal:

As a result, an ordinary registrant will often be compelled to activate the pop-up keyboard and obscure the terms of service alert before having the time or wherewithal to identify other features of the screen, including the alert. When such a registrant presses “REGISTER” without having seen the alert, he does so without inquiry notice of Uber’s terms of service and without understanding that registering is a manifestation of assent to those terms. Although the terms of service alert seems designed to put a registrant on inquiry notice of Uber’s terms of service and to alert the registrant that registration will amount to affirmative assent to those terms, the keypad obstruction is a fatal defect to the alert’s functioning.

This is not to say that a litigant can merely defeat a motion to compel by claiming he or she never saw the alert. Here, he made a plausible argument to this effect, and the apps functionality appears to conform to his allegation.

Uber argued he was judicially estopped from disclaiming the agreement because he relies on it in his complaint. But the court says the fact that he relied on some agreement with Uber does not mean he necessarily concedes the enforceability of the terms.


We’ve blogged a lot about online terms lately, but there have been relatively few cases examining how agreement to terms of service plays out differently on a phone than on a computer. This is a great example of how an online interface (in this case the court focuses on a particular implementation) makes all the difference.

I imagine a spirited argument between members of the legal and UX/UI teams regarding whether to simply make the customer check the box. It does not take a legal genius to see how that would put you in a better position, and the fact that companies often decline to take this step makes me think the conversion cost must be steep.

Other things Uber could have done here? Implement a screen that the user must see but perhaps take no action in response to? Send an email alert after the fact?

Courts make assumptions regarding customer behavior in this context. A court could just as easily said that no reasonable consumer would give their credit card to an app without some sort of terms of service and the fact that the terms were not so prominently presented is not dispositive. But typically companies do not get the benefit of the doubt in this context.

Eric’s Comments: Unless I missing something, it seems like most Uber passengers would have been exposed to a similar user interface. Thus, if Uber loses this case, its contract may be invalidated for many or all Uber passengers. If so, this is an incredibly high-stakes case for Uber.

In terms of prospective guidance, Venkat’s suggestion is a good one: though not necessarily legally required, at this point every online contract should require a mandatory check-the-box to proceed. Notice how a mandatory checkbox would have mooted all potential problems caused by popups. As a vastly inferior second-best option, contract formation screens need to be popup-free zones. I know sometimes sites display the terms in a popup screen over the registration page, but this case shows the risk that things might go unexpectedly wrong with the popups in a way that jeopardizes the primary goal.

Case Citation: Metter v. Uber Techs., Inc., 2017 U.S. Dist LEXIS 58481 (N.D. Cal. Apr. 17, 2017)

HIDDEN TRACKS #1 By Eric: More Uber Contract Formation Cases

The Uber cases are coming out more rapidly than we can blog them. Some other cases I’ve flagged in 2017:

Cubria v. Uber Technologies, Inc., 2017 WL 1034731 (W.D. Tex. Mar. 16, 2017). This is a TCPA case against Uber. As usual, Uber invoked its arbitration clause. The plaintiff makes many of the same arguments that Metter did, but did not appear to raise the popup UX problem. The court says: “The process through which Plaintiff established her account with Uber put her on reasonable notice that the act of signing up for Uber’s services bound her to the 2013 TACs. The placement of the phrase “By creating an Uber account, you agree to the Terms of Service & Privacy Policy” on the final screen of the account registration process was prominent enough to put a reasonable user on notice of the terms of the Agreement.” The court adds that it’s less sympathetic to contract formation problems raised by power users: “Plaintiff’s argument she did not have reasonable notice of or manifest assent to the 2013 TACs is unpersuasive, especially because Plaintiff accessed Uber’s services over 300 times after clicking “DONE.” She therefore retained the benefit offered by the contract not once but 300 times, implying she consented.” As a result, Uber successfully directs the case to arbitration. Because the underlying facts appear to be identical, this case could reach a different result post-Metter.

A funny footnote: “Uber argues Plaintiff is not an unsophisticated consumer because she graduated from law school. The Court need not decide this issue and assumes, for the sake of argument, Plaintiff is an unsophisticated consumer.” Sadly, graduating from law school and being an unsophisticated consumer are not mutually exclusive…

Peng v. Uber Technologies, Inc., 2017 WL 722007 (EDNY Feb. 23, 2017). Unlike the Metter and Cubria cases, this lawsuit involves drivers instead of passengers. Uber’s contract formation with drivers appears to be different. Most obviously, “Uber drivers had to click on a “YES, I AGREE” box twice to indicate assent to Uber’s Services Agreement.” Uber amplified the user flow:

Before going online, drivers were directed to a page titled, “TERMS AND CONDITIONS”, which said on the top “TO GO ONLINE, YOU MUST REVIEW ALL THE DOCUMENTS BELOW AND AGREE TO THE CONTRACTS BELOW.”…On the bottom of the page, there was a clickable blue box with the large, capitalized words, “YES, I AGREE”. Directly above the blue box, there was a provision that read, “By clicking below, you represent that you have reviewed all the documents above and that you agree to all the contracts above.” Clicking on the “YES, I AGREE” button would cause the background of the page to go dark, and a centrally located white box would pop up, stating in bold, capitalized text, “PLEASE CONFIRM THAT YOU HAVE REVIEWED ALL THE DOCUMENTS AND AGREE TO ALL THE NEW CONTRACTS.” Drivers could click either “NO” or “YES, I AGREE”. After drivers accepted the Services Agreement, a copy automatically would be transmitted to their Driver Portal, where they could review it at any time.

The court says Uber’s user flow “fits many definitions of a ‘click-wrap agreement’, [but] might not be a ‘pure-form’ clickwrap agreement, because there is no ‘mechanism that forces the user to actually examine the terms before assenting.’” (“pure-form clickwrap”? UGH). It distinguishes the Berkson “Sign-in-wrap” (infinite number of ughs) case because ” Uber drew the drivers’ attention to the terms of the Service Agreement with bold, capitalized statements, and twice required the drivers to click “YES, I AGREE,” a much more explicit form of assent than the single clicking of a “SIGN IN” button.” Please note: if you ever use the term “sign-in-wrap” in a non-mocking way, another puppy will have a bad day (In other words, DON’T DO IT).

A quirk in this case: the plaintiffs are all Chinese, and they became drivers using a Chinese language version of the Uber app that nevertheless presented the contracts in the English language. The court expresses some skepticism about why Uber made foreign language versions of its app without translating the terms. Nevertheless, the court invokes the venerable contract doctrine: “failure to read a contract is not a defense to contract formation.” Citing the Mohamed case, the court brushes aside the unconscionability defense.

Singh v. Uber Technologies Inc., 2017 WL 396545 (D.N.J. Jan. 30, 2017). Another driver case that Uber wants to arbitrate. The formation analysis looks pretty similar to the Peng discussion. The court discusses that the contract has both mandatory arbitration and an exclusive venue clauses. Because the arbitration clause excludes IP and some other specified claims, the court says the provisions aren’t internally inconsistent. The analysis of the unconscionability challenge looks similar to the discussion in Peng.

HIDDEN TRACKS #2 By Eric: Another contract formation case.

DeVries v. Experian Information Solutions, Inc., 2017 WL 733096 (N.D. Cal. Feb. 24, 2017).

DeVries screenshot

With regards to the above screen shot, the court upholds the contract formation:

DeVries argues that he did not consent to or have notice of the arbitration provision “by clicking on a button that did not mention, display, link to, or otherwise reference the Terms and Conditions.” This argument is unpersuasive. The text containing the Terms and Conditions hyperlink was located directly above that button and indicated that clicking “Submit Secure Purchase” constituted acceptance of those terms.

Experian changed the agreement since the plaintiff signed up. The court says “In general, courts have enforced new terms where prior agreements included change-in-terms provisions….Courts have also consistently applied arbitration agreements retroactively where the agreements explicitly subsume prior agreements or facially apply to disputes arising prior to the agreement.”

Related posts:

Anarchy Has Ensued In Courts’ Handling of Online Contract Formation (Round Up Post)

Courts Approve Terms of Service-Based Arbitration Clauses for Uber and Groupon

“Modified Clickwrap” Upheld In Court–Moule v. UPS

Evidentiary Failings Undermine Arbitration Clauses in Online Terms

Court Enforces Arbitration Clause in Amazon’s Terms of Service–Fagerstrom v. Amazon

‘Flash Sale’ Website Defeats Class Action Claim With Mandatory Arbitration Clause–Starke v. Gilt

Some Thoughts On General Mills’ Move To Mandate Arbitration And Waive Class Actions

Second Circuit Says Arbitration Clause in Terms Emailed After-the-Fact Not Enforceable – Schnabel v. Trilegiant

Users Can’t Sue Sony for Changing Online Terms to Require Arbitration – Fineman v. Sony Network Entertainment

Qwest Gets Mixed Rulings on Contract Arbitration Issue—Grosvenor v. Qwest & Vernon v. Qwest

Zynga Wins Arbitration Ruling on “Special Offer” Class Claims Based on Concepcion — Swift v. Zynga

“Modified Clickwrap” Upheld In Court–Moule v. UPS

Facebook Gets Bad Ruling In Face-Scanning Privacy Case–In re Facebook Biometric Information Privacy Litigation

Defective Call-to-Action Dooms Online Contract Formation–Sgouros v. TransUnion

Court Rejects “Browsewrap.” Is That Surprising?–Long v. ProFlowers

Telephony Provider Didn’t Properly Form a “Telephone-Wrap” Contract–James v. Global Tel*Link

2H 2015 Quick Links, Part 7 (Marketing, Advertising, E-Commerce)

Second Circuit Enforces Terms Hyperlinked In Confirmation Email–Starkey v. G Adventures

If You’re Going To Incorporate Online T&Cs Into a Printed Contract, Do It Right–Holdbrook v. PCS

Clickthrough Agreement Upheld–Whitt v. Prosper

Online Magazine Gets Section 230 Protection For Third Party Article–AdvanFort v. International Registries

The “Browsewrap”/”Clickwrap” Distinction Is Falling Apart

Safeway Can’t Unilaterally Modify Online Terms Without Notice

Source: Eric Goldman Legal

Can Your Employer Fire You For Posting Vacation Photos to Facebook?–Jones v. Accentia 0

I posted about this case a year ago at Forbes, and it remains one of my most-read blog posts of all time. The legal question is simple: can an employer fire an employee because of the employee’s vacation photos posted to Facebook? The district court said “sure.” The 11th Circuit says “not so fast…”

Jones worked as “Activities Director” at Accentia Health and Rehabilitation Center of Tampa Bay. He went on FMLA leave for shoulder surgery. Right before he was scheduled to return, his doctor said he needed to extend his leave for 45 days. Jones offered to return on light duty, but the employer required a fitness-for-duty certification. So Jones took a month-long non-FMLA leave. During this non-FMLA period, Jones visited Busch Gardens and his family in St. Martin. He “posted photos from these trips on his Facebook page, including pictures of himself on the beach, posing by a boat wreck, and in the ocean.” When Jones finally returned to work with the doctor certification, his employer confronted him with the Facebook photos, saying they indicated he was healthy enough to come back to work earlier. He was suspended and then fired shortly thereafter.

The appellate court rejected Jones’ claim that firing him interfered with his FMLA rights:

Because Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave, because he failed to submit a fitness-for-duty certification by the end of his FMLA leave, and because the record is devoid of proof challenging Accentia’s contention that its fitness-for-duty certification policy was implemented in a uniform fashion, Jones lost the right to be reinstated after failing to comply with this policy.

However, the court is more sympathetic about Jones’ claim that his employer retaliated against him for taking the leave. Jones didn’t have direct evidence of retaliation, but the court says the short turnaround between his leave and his firing can support a causal inference. The employer had difficulty providing credible evidence of non-retaliatory motives for the firing, making the proffered explanations appear pretextual. For example:

Accentia also argues that Jones was terminated for posting photos on Facebook that violated the company’s social-media policy, which states that employees can be terminated if their social-media posts have an adverse effect on coworkers. Daniels claimed that these posts had an adverse effect on Accentia employees because the photos were anonymously reported and because he heard gossip regarding the photos circulating throughout the workplace. Accentia maintains that these photos therefore created a morale issue among employees.

But Jones was not informed during his suspension meeting or in his termination letter that he had violated Accentia’s social-media policy. In addition, Daniels conducted no further investigation regarding the anonymous complaint, and neither he nor any other Accentia official could identify any employee who was adversely affected by Jones’s Facebook posts. Finally, there is evidence that the purpose of Accentia’s social-media policy, as discussed during managerial training, is to prevent employees from posting harmful or negative comments about the company’s staff or facilities. Jones’s Facebook posts were clearly far afield from this area of concern.

As a result, the appellate court revives Jones’ case.

While Jones may have gotten a raw deal from his employer, the fact remains that employers can and routinely do fire employees for their social media posts. We’ve probably blogged a couple dozen of those cases, and that’s just the tip of the iceberg. The FMLA angle gave Jones a legal argument that most fired employees won’t have. As I wrote in my prior blog post: “before you post to social media, it’s always a good idea to think about how your employer will react to your posts.” If there’s any doubt about how your employer will respond, it’s better to enjoy your vacation in private than from the unemployment line.

Case citation: Jones v. Gulf Coast Health Care of Delaware, 2017 WL 1396165 (11th Cir. April 19, 2017)

Source: Eric Goldman Legal