Serving Process, User Harassment and Misappropriation of User Likenesses: A Review of Recent Cases Involving Facebook

by Holland & Knight LLP
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Along with Google, no entity is more ubiquitous on the internet these days than Facebook. Expectedly, the social networking giant, which was recently valued at over 100 billion dollars, has found itself involved in a surfeit of litigation and other general legal controversies. This post will discuss some of the most recent rulings, including those related to service of process, user tort liability and general privacy practices.

A pair of orders issued recently rejected attempts by the same plaintiff to serve process on prospective defendants solely via a Facebook message. In Joe Hand Promotions, Inc. v. Carrette, No. 12-2633-CM (D. Kan. July 9, 2013), the plaintiff, a television provider, attempted to serve a defendant for alleged theft of the rights to a pay-per-view television event. The court accepted plaintiff's contention that prior to attempting service via Facebook, he had exhausted all other methods of service. Nonetheless, because delivering on Facebook did not provide a method to ensure that the prospective defendant had read or received the contents of the message, service in this fashion did not comport with due process. As an example of the overarching due process conundrum, the court also stated that because Facebook allows for fake profiles, it could not be sure if the defendant purportedly served was actually the defendant's account, or an impersonator. Ultimately, the court noted that service via Facebook message has been permitted solely in situations when it was a supplementary mode of service, e.g. if the Facebook message was sent contemporaneously to service via email or other traditional methods. A month later, in another jurisdiction, the same plaintiff had a similar argument rejected for essentially the same reasons in Joe Hand Promotions, Inc. v. Shephard, No. 4:12cv1728 (E.D. Mo. Aug. 12, 2013).

One of the ways Facebook generates revenue is through targeted advertising. Specifically, Facebook created a program called "Sponsored Stories" in which it promoted products or services to users alongside names or likenesses of the "friends" of the user. This program, which implied that the friend had recommended the product or service, led to a class-action suit alleging misappropriation of the aforementioned names and likenesses. The case, Fraley v. Facebook Inc., No. C-11-1726 (N.D. Cal. Aug. 26, 2013), concluded last week when the court approved the parties proposed settlement. Interestingly, this was the same court that had rejected an earlier settlement proposal. However, the accepted settlement differed from its predecessor insofar as it offered a small cash payment to each class member. The settlement also provided that going forward Facebook will employ various mechanisms to ensure users have greater notice concerning how their personal information may be used on the site.

A recent case also dealt with whether offensive and defamatory statements made in a Facebook post are actionable as criminal harassment. In Commonwealth v. Cox, No. 2196 MDA 2012 (Pa. Super. Ct., Aug. 2, 2013), the defendant posted comments on Facebook alleging the victim, a minor, of having a sexually transmitted disease and acting promiscuous "like her mother." On appeal of the conviction, the court agreed that defendant's remarks constituted criminal harassment pursuant to the relevant Pennsylvania statute. In citing favorably to the trial court, the appellate judge noted that the comments were intentionally made by the defendant, the claims regarding the victim's sexual activity and sexually transmitted disease therein were false, the defendant published the victim's entire name, and the defendant intentionally widened the scope of the other individuals able to view the post via Facebook. Interestingly, the appellate court also agreed that the statements at issue could constitute harassment even if they were true. All told, the court found no issue with the conviction, despite the defendant arguing for leniency based on other "problems" predominating in her life at the time the post was made.

The rapid evolution of technology can become a confounding issue for courts, particularly if relevant law does not keep pace. Going forward, with Facebook changing its design and rolling out new features seemingly every month, courts will likely be confronted with a myriad of questions regarding the confluence between the social networking giant and numerous areas of law, irrespective of whether the latter is sufficiently prepared.

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