Sex, Sexting, Lies, Videotape, and Carrie Prejean

Carrie Prejean, the former Miss California who has been ostracized by many in the media since celebrity blogger Perez Hilton "outed" her as a woman whom many would consider does not have liberal opinions, has recently ended her legal fight with the Miss California Pageant. In many articles, it has been reported that Ms. Prejean ended the legal wrangling after the pageant obtained a purported sex tape that included Ms. Prejean.

According to Ms. Prejean's interview on The Today Show, the sex tape that has been in the media the past week is what would now be called a "sexting" tape. In The Today Show interview, Ms. Prejean stated that she was 17 years old when the tape was made, she is the only person in the tape, and she made the tape to send only to her boyfriend. In other words, not nearly as salacious as the press has hyped it to be.

This situation highlights that nobody can hide from their past. In general, I believe that almost everyone deserves a second chance because everyone makes mistakes. Unfortunately, Social Media and the Internet can destroy one's reputation almost instantly. It is important to understand your rights when you are being filmed and photographed, and when you are posting to the Internet. Even if you understand your rights, you must realize that once something is released onto the Internet, even if it is an unauthorized release, it can never be fully retrieved.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Google Book Settlement Angers Chinese Authors

I have written extensively on this blog that the biggest beneficiary of the Google Book Settlement as it is currently configured is Google. Surprise. Surprise. Surprise. Did I just say that or was that my Gomer Pyle impression? Fortunately, the U.S. Deparment of Justice and the U.S. Copyright Office has strenuously objected to the settlement and the parties are back at the negotiating table. According to the New York Times, the current settlement may create some international difficulties for the U.S. because the proposed settlement may affect authors whose rights are protected under various international treaties. I am not surprised that international authors are against the proposed settlement. I am just a bit surprised that it has taken so long for the international community to become mobilized.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Sex Crimes, Stickam.com, and Social Media

Stickam.com is a live video web site that according to the New York Times is owned by a Japanese based pornographer. According to Stickam.com's Frequently Aasked Question Page, it is a free live video service and social network that allows a user to stream live video over the Internet. However, Stickam.com is also being used to showcase the work of alleged rapists and other criminals.

This past year, there have been several arrests of the website's users based upon video that was uploaded onto the site. Each arrested user is accused of uploading video of a sexual crime that the user participated in. Unfortunately, a website such as Stickam.com is just one avenue that sexual predators utilize. As anyone who has watched NBC's Chris Hanson's "To Catch a Predator" specials or Law and Order: SVU knows, this type of behavior occurs more than most people realize. Law enforcement is so overwhelmed and most websites are understaffed and focused on generating revenue and not policing their web site. Therefore, this type of behavior can fall through the cracks unless concerned website users notify the website and the proper authorities. Since 9/11/2001, the the New York City subway's safety slogan has been, "[i]f you see something say something" and I believe this slogan should be extended to the Internet.

In Stickam.com's defense, the website self reported some of these alleged criminal acts to the police, disabled the alleged rapists accounts, and removed the content that allegedly shows a crime being committed. I am not trying to defend Stickam.com's website, but these types of websites are common on the Internet and generally it is up to the users of social media to police the content available and notify the proper authorities when it is alleged that a crime has been committed by a fellow user.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Details In The New FTC Endorsements and Testimonial Rules May Curb False Product Testimonial Claims But It Will Create Confusion

The Federal Trade Commission just released its final guidelines governing the use of edorsements and testimonials in advertising. Implementing updated rules for the first time since 1980 is a great idea. A lot has changed since the Carter administration. In particular, the Internet has supplanted television, radio, and printed newspapers as the most important media communication tool. However, upon closer review of the new rules, it appears that some of the rules are beneficial, while others are ill conceived, difficult to enforce, and create more problems than then solve.

I recently reviewed the text of Federal Register Notice 73 FR 72374 that was published last year. This notice discussed proposed changes to the regulations governing endorsements and advertisements. The new guidelines published in 16 CFR Part 255 are subject to go into effect on December 1, 2009. Under the new rules, bloggers will now have to disclose if they are receiving monetary incentives or payment in kind to write about a product or service. Additionally, celebrities will now be required to disclose if they have any economic ties to a product or service if they promote a product it on a talk show or via social media. I am in favor of the spirit of these rules because it will inform consumers about any possible conflicts of interest by those who are giving testimonials. Unfortunately, the rules appear to be intentionally broad and ambiguous and therefore they may cause more problems than they solve.

In addition, as part of the overhaul, there is a less publicized rule regarding celebrity endorsements that I like to call the Entertainment Lawyer Employment Act. Under this new rule, if a celebrity stars in an advertisement and reads a script that misleads the public about a product or a service, the celebrity may be personally liable along with the company who hired the celebrity. This new rule will force entertainment lawyers to include language in endorsement deals that requires advertisers to cover any attorney fees an endorser may incur related to the endorsement.

16 CFR Part 255 states, "[t]he addition of new Section 255.1 (d) and the new examples featuring celebrities, does not create new liability for celebrities, but serves merely to let them (and their advisors) know about the potential liability associated with their endorsement activities." I have to disagree with this assertion because it opens the door for celebrities to be held personally responsible for the information in their paid endorsements.

If you read example 4 on 73 FR 72391, you will understand the ridiculousness of the above statement about the rule. The rule places an unfair burden on celebrities and actors to ensure that the content of an advertisement is not misleading. This burden should only be with the company that is making the claim and not an actor. In the example that the FTC provides, a celebrity endorser is pitching a chicken roasting system. During the commercial's taping, the celebrity watches the roasting system cook 5 chickens incorrectly. However, the script calls for the celebrity to state, "if you want the perfect chicken every time, in just 30 minutes, this is the product you need." The celebrity follows the script as required by his or her contract and under the new rules the celebrity is subject to liability along with the advertiser for misrepresentation. The rationale given is that, "a significant percentage of consumers are likely to believe the celebrity's statements represent his own views even though he is reading from a script."

I have no problem with the advertiser being liable for intentional misrepresentations, but holding an actor, celebrity, professional athlete, or paid endorser liable also over reaches. This new rule may force paid endorsers to read scientific journals or memorize the Encyclopedia Britannica to ensure that their statements about products they endorse are true. Additionally, it may require specialized insurance to cover any claims that may arise from a celebrity endorsement. If a significant percentage of consumers in our country believe everything that comes out of a celebrity's mouth we have a bigger problem on our hands that no guidelines will be able to resolve.

If John Madden states, "EA Sports Madden NFL Football is the Perfect Football Video Game," he may be liable under the FTC's new rules for misrepresentation. Every Baltimore NFL fan knows this is a false statement because the perfect NFL football video game would have an All-Time Baltimore NFL team that includes both Johnny Unitas and Ray Lewis playing on the same Baltimore NFL team. Until Madden's NFL football game corrects this problem, Mr. Madden and EA Sports cannot claim that Madden NFL Football is the perfect product without incurring liability under the new rule.

Do you now see the ridiculousness of this part of the new guidelines?

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

U.S. Secret Service Requests That Facebook Remove a Poll Asking Whether President Obama Should Be Assassinated

The U.S. Secret Service is investigating a poll on social media website Facebook that asked whether President Obama should be assassinated. Facebook complied with the Secret Service's request to take down the poll and now the Secret Service is investigating the creator of the poll to determine the intent behind its creation.

I understand the Secret Service's concerns regarding keeping the President and his family safe. In 1995, while attending The George Washington University, I woke up one day and the Secret Service without any announcement decided to permanently close down Pennsylvania Avenue in front of the White House due to security concerns. This occurred two years after the first attack on the World Trade Center and soon after the Oklahoma City bombing. These tragedies along with several other incidents made the Secret Service reassess the security measures in place to protect the President and the First Family.

I have mixed feelings about the Secret Service getting involved in this matter. I think the Secret Service should do all it can to protect the President and his family. However, my question is where do we draw the line in determining what is acceptable free speech under the 1st Amendment? There are many opinions
that I find distasteful and moronic; in particular, some opinions from members of my own extended family. Even though I may not agree with an opinion, I agree that everyone has a right to his or her own opinion and ideas.

Most interactive web sites have a Terms of Service/Terms of Usage section that discusses how the site can be utilized by its users. If a user is violating a web site's policies, the user can be barred from the website and the user's posts can be removed. However, I am not in favor of the executive branch of the government determining what is acceptable speech. In general, the legislative branch of our government creates the laws, the executive branch enforces the laws, and the judicial branch determines if a law is constitutional and how it may apply. These checks and balances have generally worked for more than 200 years.

This type of censorship by the Secret Service or other law enforcement agencies will increase with the rise in popularity of social media. I predict that one day that the U.S. Supreme Court will hear a case involving censorship of a social media website by the government.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Lawyers Must Be Mindful of Their Social Media Usage

There is an excellent New York Times article by the paper's National Legal Correspondent, John Schwartz, that discusses some examples where lawyers have been sanctioned for their Facebook posts, blogs, and tweets. Lawyers who utilize social media must realize that the Code of Professional Responsibility that every member of the Bar must follow in their every day interactions with prospective clients, clients, opposing counsel, judges, etc...is also in effect in cyberspace. Even though the First Amendment protects most speech, a person still can't falsely yell fire in a public area. Attorneys as officers of the court have additional responsibilities. The bottom line is that every lawyer should thoroughly read their prospective posts, blogs, or tweets before they are published in cyberspace. Before I publish a post, I ask myself:

1) Will my post add value to an area of discussion?
2) Does my post violate the Code of Professional Responsibility?

If my post can add value to a discussion and does not violate the Code of Professional Responsibility I publish my post. If my thoughts do not add value to an area of discussion or if I think they may violate the Code of Professional Responsibility I do not make the post. In general, I try to avoid personal attacks on others. I try to live by, blog by, tweet by, and post by this adage that my late Grandfather instilled upon me: "Better to keep your mouth closed and be thought a fool than to open it and remove all doubt."

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Tweeting Can Be Hazardous to Your Game

Twitter is currently in the fad stage of American Society. It is trying to move into the mainstream to become as ubiquitous as email but only time will tell if this will happen. I have a Twitter account but I do not use it often because I do not think people want to know what I am doing all the time. I doubt my followers would be interested in knowing what type of diaper my son had this morning and whether I changed it.

As an attorney, most of the things that people would be interested in hearing me tweet about are priviledged attorney-client communications. Therefore, I rarely tweet since some of the things I could possibly say may provide a clue as to whom I am representing, the type of matter I am working on, or a possible strategy that I may be thinking about employing on a client matter.

The U.S. Open has joined the NFL and some Fortune 500 Companies in instituting a social media policy. The NFL announced yesterday that its players will be allowed to utilize social media during the season. However, NFL players, coaches, and football operations personnel will not be authorized to use social media 90 minutes before a game or during a game. The last time I checked the NFL's Collective Bargaining Agreement I didn't see anything directly relating to social media so until this issue is collectively bargained I think this policy strikes a good balance between employee and employer rights.

However, the United States Tennis Association's (USTA) Twitter policy appears ambiguous and difficult to enforce. The USTA's policy appears to try to control the actions of not just its members but also its member's "entourages." As anyone who has watched the funny HBO series Entourage, controlling a member of your entourage is not always as easy as you may believe. Therefore, the USTA's social media may sound like a great idea but for all practical purposes it is almost impossible to hold a player responsible for the tweets of another.

In order for both the NFL and USTA's social media policies to be successful they need to be:

1) Collectively bargained or negotiated between the parties so a mutually acceptable policy is crafted.

2) Clear and unambiguous so all parties know what is expected.

3) Enforced in a consistent manner so all parties know the consequences for non-compliance.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

"Skanks in NYC" Blogger Planning to Sue Google For Following Judge's Order to Out Her

According to a CNN article, the "Skanks in NYC" Blogger who lost her lawsuit to keep her anonymity is planning on suing Google, the host of her blog, for not doing more to protect her privacy.

Some background for those who have not followed this story. An anonymous blogger made derogatory and possibly defamatory remarks against a model, Liskula Cohen. Ms. Cohen sued to compel the blogger's web hosting company, Google to release the personal information of the anonymous blogger. Ms. Cohen won her lawsuit and as ordered, Google provided the blogger's email address to Ms. Cohen. Ms. Cohen utilizing her gumshoe skills figured out the identify of the anonymous blogger. The media also found out the identity of the anonymous blogger.

Ms. Cohen received several days of positive press and during her media performances she was viewed not as a vindictive and helpless victim but as a person who is willing to forgive and forget and move on.

The anonymous blogger was vilified in the media and wants to blame Google for her self inflicted problems. As I said several days ago, if the anonymous blogger wanted to stay anonymous she should have covered her tracks better. Filing a frivolous lawsuit against Google only continues to demonstrate the blogger's vindicative nature and that she is looking for someone else to blame for her own actions. It is time for the anonymous blogger, Rosemary Port to cut her losses because the longer this story stays viral the more damage it does to her reputation.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Getting Fired For Blogging

The Wall Street Journal and CNN once again have reported on the legal ramifications of blogging and tweeting about your job. In particular, the CNN article discusses what is becoming an almost every day occurrence in the American workplace: an anonymous blogger is terminated after being outed or after he or she reveals his or her true identity under their own free will and accord.

In general, most employment situations in the United States are employment-at-will. This means that an employer or employee can terminate the employment relationship for any reason. Over the years, three main exceptions to this rule have been recognized:

1) A Public Policy Exception
2) An Implied Contract Exception
3) A Covenant Of Good Faith and Fair Dealing Exception

Some states recognize all three while other states may only recognize 1 or 2 of these exceptions. Every organization should have a social media policy. In the 1980's, creating a sexual harassment policy was all the rage. In the 1990's, creating an Internet usage policy became necessary. Now, all organizations that have employees should have a written social media policy. These policies should strike a fair balance between employee and employer rights. Unfortunately, until these types of policies become the norm and not the exception in the American workplace more employees will be terminated for their blogs, posts, and tweets.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

"Skanks in NYC" Blogger's Days of Anonymity Are Over

The "Skanks in NYC" blogger who recently lost a lawsuit to keep her identity private has now been outed. According to a NY Post article and the accompanying photo and video, the former anonymous blogger did not appear pleased that her identity has been revealed.

Some of my readers may question why I am even reading the NY Post. I have to admit that as a former New Yorker, one of my guilty pleasures was reading the NY Post instead of my Wall Street Journal while commuting to work. Old habits die hard so every now and then I still check out the NY Post online.

I mentioned in a previous post that this case or another similar one may go all the way to the Supreme Court. It appears my prediction may come to fruition. The article states that the former anonymous blogger "plans to pursue all her legal options against Google and could take the case all the way to the Supreme Court."

I can't see what kind of case the blogger would have against Google. Google complied with a valid court order to release the email address associated with the "Skanks in NYC" blog. If the "Skanks in NYC" blogger truly wanted to keep her identity secret she would have at least:

1) Signed up for her blog using an email address that she only accessed from public terminals
2) Never sent any emails from the email address associated with the blog, and
3) Only accessed her blog from public terminals

From listening to the Good Morning America segment about the case, it appears that the blogger at least broke rule number 2 and utilized the email address associated with the blog for other activities. There could be a legal argument that the blogger did not do enough to hide her identity. Therefore, regardless of the other legal issues involved it may be argued that the blogger was looking to be outed by her own actions or lack thereof.

In my opinion, I believe that most jurisdictions will pursue the line of thought that the court in this case did and it will order Internet Service Providers and Social Media Websites to turn over relevant information about those who are alleged to have defamed others. Internet anonymity is becoming more difficult these days and those who do not take the proper precautions are at risk for having their identities unmasked.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Is Flickr Hiding Behind Copyright Infringment To Censor Free Speech?

Social Media has the ability to spread ideas like wildfire. However, if you don't own the platform from which you want to espouse your views your speech may be stifled. A perfect example of this occurred when Firas Alkhateeb, a college student from Chicago created a photo that some call art, others call politically charged, and some have called racist.

According to the L.A. Times, Mr. Alkhateeb utilized Adobe Photoshop and modified a photo of President Obama to make the President look like Heath Ledger's Joker character from the most recent Batman movie. In January of this year, Mr. Alkhateeb uploaded his creation to Flickr. Several months later somebody downloaded the photo and put the word "Socialism" on the photo and started plastering posters of the modified photo throughout Los Angeles.

Whether or not you agree with the message that it conveys, it appears that the photo modification is protected under the famous 1841 Folsom v. Marsh case that established the analysis later codified in the United States Copyright Act of 1976 Title 17, U.S.C. Section 107: Limitations on exclusive rights: Fair use.

From a legal point of view, there is a valid argument that the photo represents protected political commentary. Under our First Amendment, no matter how reprehensible a person's words or ideas may be that person has a right to them and a right to publish them. As Social Networking use increases, these types of incidents will increase ten fold. Therefore, this type of censorship that Flickr is engaging in may be just the tip of the iceberg.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Bloggers' Days Of Anonymity May Be Ending

Yesterday, a Manhattan, NY Judge ruled that Google must identify the anonymous blogger who created and/or posted to a blog titled "Skanks in NYC." The blogger wrote derogatory and possibly libelous posts about Liskula Cohen, an international fashion model. Once Ms. Cohen learns the identity of the blogger she will then be able to file a defamation suit.

Abcnews.com has a good article and an interview with Ms. Cohen. This ruling may signal the beginning of the end of total anonymity in internet posting. I predict that these types of lawsuits will only increase in frequency and jurisdictions throughout the country may differ in their application of the law. Due to the First Amendment issues involved one of these cases may eventually find its way to the U.S. Supreme Court.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.