Status Updates - November 2014 #5
Morrison & Foerster LLP - Social Media
Tale of the tape. Remember the 1980s? Back then, watching a movie on demand meant visiting your local video store and renting the video tape version of the film that you wanted to watch (assuming it was available). During that era, Congress passed – and President Reagan signed into law – the
Video Privacy Protection Act (VPPA)
, which generally prohibits any “video tape service provider” from disclosing, outside of the ordinary course of business, information regarding a customer’s rental and purchase of video tapes and similar audio visual materials. The law actually stems from the controversial, and failed, 1987 nomination of Robert Bork to the U.S. Supreme Court,
when Bork’s opponents got hold of his video-rental records
. As the video distribution industry has evolved, issues have arisen as to the application of the VPPA in this new era. Redbox is famous for its automated self-service kiosks at which customers can rent DVDs and Blu-ray disks; to handle customer inquiries, however, Redbox uses a third-party service provider, Stream Global Services (SGS). So that SGS can fulfill its obligations, Redbox makes available its customer records to the service provider. Does such disclosure violate the VPPA, or does it fall within the VPPA’s exception for disclosures made in the “ordinary course of business”? Several consumers sued Redbox because of SGS’s access to their rental information, but
the U.S. Court of Appeals for the 7
Circuit recently found that Redbox is in the clear.
The court noted that, in enacting the VPPA, “Congress contemplated customer service as part and parcel of the ordinary rental experience. That Redbox has replaced most live customer service interactions with a computer interface does not change this.” Nevertheless, if your company is in the business of distributing videos online, you will want to pay attention to potential VPPA issues; although narrowly focused, it’s a restrictive privacy law that can become a trap for the unwary.
All politics is social. While the 2014 mid-year election has concluded, the involvement of social networks in politics is far from over. A
study by the Pew Research Center
Americans are using their mobile phones, apps, and social media far more than ever before to keep up with politicians and elections
. For example, whereas only six percent of registered voters reported following politicians on social media in 2010, that number is now up to 16 percent. Both Facebook and Twitter say they embrace this type of use of their networks and, indeed, they see part of their mission as fostering an increase in civic involvement and voter participation. There doesn’t seem to be any association between political party and the use of social media:
that Republicans and Democrats participate in approximately equal numbers.
Bad trip. A new report indicates that, in the United Kingdom,
defamation cases based on comments in social media increased dramatically in the past year, from six to 26 –
a 333% increase
. Among the reasons cited for the surge in defamation complaints: some people’s failure to understand that what they post to social media platforms such as Twitter can be actionable, and some defendants’ concern that their reputation can suffer permanent damage because the Internet permits defamatory statements to be spread quickly and remain online. Not all these cases succeed, of course; for example, the owners of a Scottish bed and breakfast operation have been unsuccessful in their lawsuit against the travel website
over allegedly defamatory reviews hosted on the site. Earlier this year, a Scottish court refused to compel TripAdvisor to disclose who had written and posted these reviews,
noting that the court lacked the “worldwide jurisdiction” needed to require U.S.-based TripAdvisor to produce the requested information
. Of course, going forward,
Europe’s controversial recognition of the right to be forgotten
may offer an alternative means for dealing with allegedly defamatory posts.