Does Prince Harry have a claim for invasion of privacy?

Some naked photos of the United Kingdom's Prince Harry have been leaked online. There are rumors that there is also video of Prince Harry in the buff quietly being shopped to the highest bidder. These photos and the video were allegedly taken in the privacy of Prince Harry's private hotel suite in Las Vegas, Nevada.

In Montesan v. Donrey Media Group, 668 P.2d 1081 (1983), Nevada reiterated that it has impliedly recognized an action for invasion of privacy. According to the Second Restatement of Torts, § 652D (1977), in order to maintain a cause of action for invasion of privacy it must be proven that a public disclosure of private facts has occurred which would be offensive and objectionble to a person of ordinary sensibilities.

Does Prince Harry have an expectation of privacy in his private hotel room? Did Prince Harry give up his right to privacy when he invited others into his personal hotel suite? Could the person(s) who are allegedly shopping these photos and/or videos be charged with state and/or federal crimes? Does Prince Harry have a civil cause of action against the person(s) who shot the video?

In the criminal case against Dharun Ravi for webcasting a sexual encounter that his roommate had with another person in the privacy of their shared Rutgers University dorm room Ravi was found guilty of invasion of privacy. Since people generally have an expectation of privacy in their dorm rooms and own homes should they also have an expectation of privacy in their hotel suites?

How far should this right extend in the Social Media Age?

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

South Korea bans social media account registration

South Korea's highest court unanimously ruled that South Koreans are not required to register their user names or other online account information in order to make comments on the Internet. This reaffirms that South Korea will protect freedom of speech on social media and other online platforms.

When applying this law to universities in South Korea, it appears to mean that public school students are not required provide their schools their social media user names or other digital account information. In a democratic society, public schools may not require their students to register their Facebook accounts, Twitter handles, and/or other social media credentials in order to obtain or keep their scholarships. It is clearly unconstitutional for a U.S. public university to demand that their students register their digital or social media usernames or online persona with a university or a third party in order to keep their scholarship or participate in extracurricular activities. This protection extends to all students including student-athletes and other students on scholarship.

Unfortunately, there are multiple U.S. public colleges and universities that are following the advice of self-described social media consultants who are pitching schools on requiring their student-athletes to register their social media usernames with their schools and/or Facebook Friend a coach and/or download social media monitoring software so the school may identify the student's online persona and track their online behavior.

Any social media consultant that advocates schools utilize a social media monitoring service to track their student-athletes' online behavior is a snake oil salesman that should not be trusted because this advice may create tremendous legal liability for those universities and individuals who follow this advice.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Gay Federal Employee Allegedly Fired For Facebook Like Sues

A former federal employee has filed a lawsuit alleging that he was fired because of a Facebook Like. This is reminiscent of another recent lawsuit where an employee alleges he was fired for Facebook Liking the page of his supervisor's political opponent.

If employers have access to their employee's social media accounts and they learn about an employee's protected status and they fire an employee based upon this information this may open the employer up to tremendous legal liability.

In schools, requiring student-athletes to provide access to their social media accounts may also open up schools to discrimination claims. What would happen if a coach finds out one of his student-athletes is gay because of a Facebook Like or the content posted by one of the student-athlete's Facebook Friends and then the coach discriminates against the student-athlete?

The above mentioned examples demonstrate why employers and schools should not want to be able to freely access their employees' or students' social media content. If employers and schools are unable to access this information this may lower the number of discrimination allegations and/or lawsuits. Unfortunately, there are still employers and schools that don't understand these issues and because of this lack of understanding state and federal digital media privacy laws are needed to protect employers, employees, job applicants, schools, students, and student applicants.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

California passes student social media privacy legislation

California has passed Senate Bill 1349. The bill is a win for California schools, taxpayers, students, and prospective students. If Governor Brown signs the bill it may help increase enrollment in California schools because it signals to the entire world that California is a leader in digital privacy and common sense technology law.

The legislation does not appear to have any implementation costs for California and may save California schools and taxpayers millions of dollars per year. According to the New York Times, it may cost approximately $10,000 per year to social media monitor a small segment of a school's student population. There appears to be more than 150 4-year post secondary academic institutions based in California. Therefore, if you multiply 150 x $10,000 this may save California 4-year post secondary schools at least $1.5 million dollars per year. This does not factor in some of the potential savings from not needing increased cyber liability insurance policies, legal fees to review the social media monitoring contracts between the schools and monitoring companies, and the cost to defend against negligent social media monitoring lawsuits or the failure to social media monitor lawsuits. Overall, the cost savings to California post secondary schools and taxpayers may exceed $5 million per year.

Any company that approaches NCAA sanctioned schools to sell social media monitoring services is selling a legal liability time bomb. Yesterday, there was a very troubling Louisville Courier-Journal report that stated that the University of Kentucky via a company called Centrix Social was social media monitoring some of its students and flagging them for using the term "Arab" or "Muslim" online. Centrix Social was recently acquired by Varsity Monitor who according to Deadspin.com appears to have some ethical challenges.

If SB 1349 is enacted, it may protect California schools from millions of dollars in additional compliance and regulatory costs, and millions of dollars in potential legal liability costs associated with social media related lawsuits.

(Full Disclosure: I advised California Sen. Yee's office on this legislation.)

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Will the International Olympic Committee strip Michael Phelps of his gold medals because of leaked Louis Vuitton photos?

On June 28, 2011, I was one of the first to analyze the new International Olympic Committee's social media regulations. When the regulations initially were released, I immediately noticed that there may some major challenges with the policies. At that time I stated, "In general, the IOC's Social Media Policy appears to be a good starting point for discussion. However, the points I mention above need to be addressed before the Games begin to lessen the likeliehood that social media compliance misunderstandings may occur."

During a conversation I had with ReadWriteWeb that was published on June 26, 2012, I stated that the "IOC’s social media policy is, at best, a work in progress, and that both official Olympic sponsors and the IOC will likely learn some hard lessons as the 2012 games progress." For example, under the IOC's Rule 40 (their social media regulations) Michael Phelps could be stripped of all of his medals because during the Olympics some photographs were leaked online of him that also contained Louis Vuitton merchandise and Louis Vuitton was not an official Olympic sponsor.

I highly doubt that Michael Phelps will be stripped of his 2012 Olympic medals because the negative press would create a huge black mark on a highly successful Olympic Games. However, as our world becomes more digitized the IOC must prepare for the possibility that similar situations may occur in the future and adjust their social media regulations accordingly before the 2014 Winter Olympics.

To learn more about these issues you may contact me at www.shearlaw.com

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Has Facebook created a legal duty to monitor for illegal activity?

Does Facebook have a legal duty to monitor for illegal activity on its website? Facebook is an international company with its headquarters in California. However, Facebook must comply with the laws of every jurisdiction where it operates.

In Australia, Facebook was recently pressured to remove a page that was alleged racist. At first, it appeared that Facebook claimed that because it is based in California it did not have to comply with Australia's anti-discrimination laws. However, after more public and governmental pressure Facebook eventually removed the controversial page.

A series of Facebook chats in Canada recently caught the attention of Facebook's staff who reported it to Winnipeg law enforcement officials. Detectives arrested a suspect and he is now facing charges of sexual assault, sexual interference, and luring. It may have been noble of Facebook to report an alleged criminal act but what would have happened if Facebook knew about the chats but didn't report them?

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Liking a Facebook Page May Be Constitutionally Protected Free Speech

Social Media has become a major free speech battleground around the world. For example, earlier this year Pakistan banned Twitter for a period of time because Twitter refused to delete tweets that were alleged to be blasphemy.

In the United States, some employers are demanding their employees turn over their Facebook usernames and passwords. In addition, an alarming number of colleges and universities are demanding students register their social media user names with their schools in a move that mimics China's Microblog Identification Program. Some colleges are even requiring students to download tracking software onto personal digital or social media accounts in order to keep their scholarships.

These practices are extremely disturbing and should not be allowed in the United States unless we want our society to turn into George Orwell's 1984. As I have stated on the record numerous times, I believe the above mentioned practices may violate the 1st amendment along with the 4th, and potentially the 5th, and/or the 14th amendments.

In a recent case, a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter shortly after he won re-election. Mr. Carter sued, and earlier this year lost in U.S. District when the judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."

The case has been appealed to the United States Court of Appeals for the Fourth Circuit (my jurisdiction) and Facebook and the ACLU are defending Facebook Likes as constitutionally protected free speech. The Fourth Circuit may decide whether a Facebook Like should be considered in the same light as an armband or other forms of expression that may indicate a political opinion.

The bottom line is that social media and other new technologies present unique legal, business, cultural, and political challenges. Therefore, it is imperative to have the proper social media policies in place and to train your staff, employees, and students so they understand the legal issues involved with social media.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Australia Rules Social Media Brand Pages Are Ads

In Australia, social media is no longer considered just a medium to connect with your friends or family. It has now been officially recognized as a form of advertising that should be treated in the same manner as other advertising platforms.

According to the Sydney Morning Herald, a new ruling may require Australian companies to vet comments posted by the public on their social media pages to ensure they are not sexist, racist or factually inaccurate. Companies doing business in Australia may be fined for comments that appear on their social media brand pages. The Australian Standards Board "determined that the provisions of the Code (advertising) apply to an advertiser’s Facebook page."

The increasing regulation of social and digital media is expected. It is the natural progression of the acceptance of social media as a legitimate advertising and monetization avenue for brands. Last year, the U.S. Better Business Bureau took a stand against unethical social media advertising practices and this occurred soon after the FTC started to crack down on fake online reviews.

Therefore, I believe the Federal Trade Commission may soon increase its social media advertising enforcement.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Illinois Enacts Social Media Privacy Law

Illinois has become the third state to enact a law that pertains to social media privacy. Earlier this year, Maryland enacted a law that protects employers, employees, and job applicants and Delaware enacted a law that protects schools, students, and prospective students.

HB 3782 is now Public Act 097-0875 and will go into effect on January 1, 2013. The bill is modeled after Maryland's groundbreaking social media privacy legislation that became the first law in the country to specifically address an employee's digital right to privacy. At least 15 states have introduced social media privacy legislation along with Congress.

Employees and job applicants should still watch what they post online because anyone who has access to their posts may be able to re-post them or print them out for others to see. While an Illinois employer may not be able to require that an employee or job applicant provide access to one's password protected Facebook page or content as a condition for employment, one of your Facebook Friends can still freely contact your employer and send them your password protected digital content.

 

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

Sex crime victim will not be jailed for tweeting the names of her attackers

On July 23, 2012, I wrote about Savannah Dietrich who tweeted the names of her alleged juvenile attackers after they were reportedly offered a lenient plea bargain. It appears that the media attention surrounding Dietrich's case may have led her attackers to drop their motion to charge her with contempt for outing them.

Dietrich alleged she was sexually assaulted in August 2011 while passed out at a party. Two juveniles were charged with felony first-degree sexual abuse and misdemeanor voyeurism and they pleaded guilty to those charges this past June. Dietrich was upset with the plea bargain so she decided to speak out.

The matter was handled in juvenile court and under Kentucky law the proceedings are closed to protect the confidentiality of those involved. Even if Dietrich's attackers did not drop their motion, I believe her lawyer may have been successful in blocking it because her attackers took photos of the incident and circulated them on the Internet.

The attorneys for Dietrich's attackers made a strategic error by filing the contempt motion because of the Streisand Effect. The contempt motion had the exact opposite effect of what was intended in that her attackers wanted their names kept out of the media. However, the filing of the motion brought more publicity to the case due to social media.

Therefore, in the Social Media Age lawyers must be able to understand how digital technology may affect their cases because a wrong move may harm their clients' interests and destroy their case.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

NCAA Penn State sanctions prove schools should not social media monitor their students or employees

The Penn State Jerry Sandusky child sex abuse scandal is the worst scandal in the history of college athletics and has now drawn unprecedented NCAA sanctions. The sanctions were handed down by the NCAA because the evidence from the Freeh Report along with the criminal trial of former coach Jerry Sandusky indicated that "Penn State's leadership failed to value and uphold institutional integrity, breaching both the NCAA Constitution and Division I rules."

On November 10, 2011, I stated that, "between legal fees, settlements, judgments, possible fines etc... it is possible that this scandal may cost Penn State $100 million dollars or more. This does not factor in the damage to its reputation along with the loss of future economic opportunities." It appears that this scandal may end up costing Penn State closer to $150-$200 million dollars now that the NCAA has taken unprecedented action.

Digital evidence from more than ten years ago appears to have persuaded former FBI Director Louis Freeh that there was a systematic cover up regarding the Sandusky matter. The emails that the Freeh Report uncovered may have been the determining factor that led to the NCAA's sanctions against Penn State.

According to the NCAA's website, Penn State's sanctions include:
-$60 million fine. The NCAA imposes a $60 million fine, equivalent to the approximate average of one year's gross revenues from the Penn State football program, to be paid over a five-year period beginning in 2012 into an endowment for programs preventing child sexual abuse and/or assisting the victims of child sexual abuse.
-Four-year postseason ban. The NCAA imposes a four-year postseason ban on participation in postseason play in the sport of football, beginning with the 2012-2013 academic year and expiring at the conclusion of the 2015-2016 academic year.
-Four-year reduction of grants-in-aid. For a period of four years commencing with the 2013-2014 academic year and expiring at the conclusion of the 2016-2017 academic year.
-Five years of probation. The NCAA imposes this period of probation, which will include the appointment of an on-campus, independent Integrity Monitor and periodic reporting as detailed in the Corrective Component of this Consent Decree.
-Vacation of wins since 1998. The NCAA vacates all wins of the Penn State football team from 1998 to 2011.
-Waiver of transfer rules and grant-in-aid retention. Any entering or returning football student-athlete will be allowed to immediately transfer and will be eligible to immediately compete at the transfer institution, provided he is otherwise eligible.
-Individual penalties to be determined. The NCAA reserves the right to initiate a formal investigatory and disciplinary process and impose sanctions on individuals after the conclusion of any criminal proceedings related to any individual involved.

The Big Ten has also weighed in on the matter. According to The Patriot-News, Penn State will not be eligible to receive at least $13 million dollars in bowl revenue over the next four years. Therefore, Penn State will lose at least $73 million dollars in revenues related to the Sandusky matter before legal fees and expenses, civil settlements, judgements, etc... are factored into the entire cost of the situation.

This matter should be a warning to every NCAA institution. If a school employs a social media monitoring company to track its students and/or employees and it learns about a Tweet or post that may indicate illegal activity and the university does not immediately report it to the proper legal authorities it may be fined tens of millions of dollars by the NCAA.

The bottom line is that schools that listen to self-described experts/leaders/consultants, etc... who create fancy marketing materials and digital presentations that provide the false impression that they understand NCAA compliance, public policy, student education issues, and the law, may be in for a huge shock in the near future.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Sex-crime victim may be jailed for tweeting names of her attackers

According to the Louisville Courier-Journal, Savannah Dietrich may be incarcerated for contempt-of-court charges for tweeting her attackers' names after they were allegedly offered a lenient plea bargain. Dietrich's attackers also circulated photos of the alleged incident.

Dietrich alleged she was sexually assaulted in August 2011 while passed out at a party. Two juvenile attackers were charged with felony first-degree sexual abuse and misdemeanor voyeurism. The teen perpetrators pleaded guilty to those charges this past June and Dietrich was upset with the plea bargain so she decided to speak out.

Under Kentucky law, juvenile court is closed to protect the confidentiality of those involved with the proceedings. However, since Dietrich's attackers took photos of the alleged incident and circulated them does Dietrich have a valid argument that her attackers voluntarily gave up any right to confidentiality?

To learn more about these issues you may contact me at www.shearlaw.com

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Is Russia trying to censor the Internet?

According to the New York Times, Russian lawmakers have approved legislation that would strengthen its ability to control its citizens' Internet activity. The bill will impose hefty fines for unsanctioned protests and it has reinstituted criminal charges for slander. According to Alla Zabrovskaya, public relations director of Google Russia, the proposed law may also enable the government to blacklist whole domains when only part of the hosted content is illegal.

The bottom line is that while social media was created to encourage interaction and collaboration with people from around the world, there are still some institutions that are afraid of what may happen if too many people speak with each other and voice their opinions.

To learn more about these issues you may contact me at www.shearlaw.com

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Is Washington State's Facebook Voter Registration Application a Danger to Democracy?

Should voter registration be entrusted to Facebook? According to the Associated Press, Washington State believes Facebook should be utilized to register new voters. Washington State has had online voter registration since 2008 and approximately 475,000 registrations or changes have been processed since the program's inception.

The big question is can Facebook be trusted to be part of the voting process? In 2009, a judge approved a $9.5 million dollar settlement over Facebook's Beacon program because of privacy issues. Last year, Facebook reached a privacy settlement with the FTC because of privacy problems. Within the past month, it appears that Facebook has agreed to pay approximately $20 million dollars because of privacy issues regarding its Sponsored Stories program.

While I applaud unique and creative ways to utilize social media, should Facebook be utilized to register to vote when it appears to have a problem with protecting its users' privacy?

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Is trademark and copyright law worthless in the social media age?

The Digital Millenium Copyright Act (DMCA) was signed into law in 1998 to protect the intellectual property rights of content creators while also providing a safe harbor for internet service providers and websites who act in good faith to remove infringing content once they become aware of the matter. The Lanham Act was enacted in 1946 and has been amended several times. In 1999, the Anticybersquatting Consumer Protection Act amended the Lanham Act to address domain name trademark issues.

Does the DMCA or the Lanham Act still work in the Social Media Age? On June 16, 2010, I blogged that intellectual property protection is useless in the social media age. Since that post, very little has been done to better protect content creators from the illegal use of their intellectual property without their permission or compensation. Congress has not been able to draft compromise intellectual property legislation that better protects digital intellectual property rights while also creating a fair and equitable system to protect innocent internet service providers and websites from liability.

According to a recent San Francisco Chronicle article, Facebook appears to be a haven for the sale of counterfeit goods. Ironically, the article mentions that Facebook has been notified about this issue but it appears they will not do anything about it unless the trademark holder personally contacts them. Does this response demonstrate that Facebook has a huge problem with ads for counterfeit goods on its platform? Under Viacom v. YouTube's latest appellate court ruling, will Facebook soon have significant legal liability issues to address?

The bottom line is that that it takes time for the law to catch up with technology.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.