Federal Laws Pertaining to Social Media

Electronic Communications Privacy Act (18 U.S.C. § 2511, “ECPA”)

Prohibits the intentional interception or disclosure or of “any wire, oral, or electronic communication,” including the use of communication the user knows was obtained through such interception.

Stored Communications Act (18 U.S.C. §§ 2701–2712)

Expands the ECPA’s protection to electronically stored communication as a way to prevent “a host of potential privacy breaches” unaddressed by the 4th Amendment.

Applies criminal penalties to a user who:

• Intentionally gains access to

  • Including by “exceed[ing the user’s] authorization,” and

• Obtains;

• Alters; or

• Prevents authorized access to

• Stored electronic communication.

  • Including social media; see, Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (“an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records.”)

Electronic communication providers are excepted from the law in facilitating access to communication sent or received by their users.

“The SCA prevents social media providers from disclosing a registered user’s electronic communications addressed to specific persons or communications that were and have remained configured by the user to be restricted. (Facebook, Inc. v. Superior Court (2018) 4 Cal.5th 1245, 1250.) The SCA does not, however, bar the disclosure ‘by providers of communications that were configured by the registered user to be public, and that remained so configured at the time the subpoenas were issued…’ Thus, communications configured by the social media user to be public fall within section 2702(b)(3)’s lawful consent exception to section 2702’s prohibition, and, as a result, permits providers to disclose public communications.” Axxera Inc., Et Al. V. Vummannagari Et Al., 30-2017-00946972-CU-PO-CJC (8/20/2019) (https://trellis.law/ruling/30-2017-00946972-CU-PO-CJC/axxera-inc-et-al-v-vummannagari-et-al/20190920d9cf81).

Subpoena of Social Media Information

“As explained by the California Supreme Court, some electronic communications are covered by the right to privacy. (See Facebook, Inc. v. Superior Court, supra, 4 Cal.5th at pp. 1270-1274, 1281; 18 U.S.C. §§ 2701-2711.) Axxera has not shown that the information sought is directly relevant or that the information sought cannot be obtained from other sources or through less intrusive means. In its Opposition, Axxera asserts that it is unable to determine the nature of the classified information that was downloaded and transferred; that the records will enable defense counsel to fully evaluate the case; that the records might reasonably be relevant for credibility or impeachment purposes; that the records might contradict Vummannagari’s claims that he did not access Axxera’s server to steal proprietary information...This reasoning is insufficient to establish a particularized need for the information sought or that the information is directly relevant to the instant matter. Moreover, Axxera has propounded a discovery requests on Vummannagari that request the same documents and information sought in these subpoenas...Vummannagari’s Motion is granted...Accordingly, the subpoenas duces tecum...are hereby ordered quashed.” Axxera Inc., Et Al. V. Vummannagari Et Al., 30-2017-00946972-CU-PO-CJC (8/20/2019) (https://trellis.law/ruling/30-2017-00946972-CU-PO-CJC/axxera-inc-et-al-v-vummannagari-et-al/20190920d9cf81).

Extortion and Threats via Electronic Communication (18 U.S.C. § 875)

18 U.S.C. § 875 prohibits sending threats and extortion through interstate commerce.

The Supreme Court has not stated categorically that the Internet constitutes interstate commerce, but many lower Federal courts have come to that conclusion. See, e.g., an early analysis in American Libraries Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997).

The Communications Decency Act of 1996 (“CDA”)

Congressional overhaul of the Telecommunications Act to prevent online pornography.

The CDA’s indecency provisions have been struck as unconstitutional, but its robust grant of immunity to Internet providers and content hosts still applies and is widely used.

Section 230:

§ 230(c)(1) of the CDA grants broad immunity to ISPs and content hosts, shielding them from liability for their users’ publications:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

CALIFORNIA LAWS GOVERNING SOCIAL MEDIA

California Invasion of Privacy Act (“CIPA”)

Note: Not to be confused with federal Children's Internet Protection Act (CIPA)

CA Penal Code § 630 et seq. – California equivalent to Federal ECPA.

• CA Penal Code § 631(a) criminalizes any unauthorized attempt to gain access to or observe electronic communication in any manner;

  • Punishable by a $2500 fine; and/or

  • Up to a year in jail.

• CA Penal Code § 631(c) declares electronic communication obtained in violation of the law is inadmissible as evidence.

“Plaintiffs allege that Google “extracts and analyzes the content of emails sent to Gmail users before delivery to their inboxes for advertising purposes, including the purpose of serving targeted advertisements and creating user profiles.” (Consolidated Complaint, ¶ 31.) These actions go “beyond the normal occurrences, requirements, and expectations regarding the facilitation and transmission of private messages and were not for the purpose of the construction, maintenance, conduct, or operation of Google’s email service.” (Id., ¶ 53.)

Google contends that this alleged practice falls within the ordinary course of business exemption, urging that the exemption broadly applies to actions in furtherance of any legitimate business purpose. In support of this position, it cites state and federal cases addressing the application of the exemption to the recording of employees’ phone calls for various purposes (see, e.g., O’Sullivan v. NYNEX Corp., supra, 426 Mass. at p. 267 [granting summary judgment based on the exception where defendant “had a legitimate business interest in managing and monitoring the quality of telephone calls made by [its] telemarketers to [its] customers”] and Royal Health Care Services, Inc. v. Jefferson-Pilot Life Ins. Co. (11th Cir. 1991) 924 F.2d 215 [applying Florida ordinary course of business exemption to insurance company’s policy of recording outgoing calls from its case management department]) and to more routine functions of an internet service provider (Hall v. EarthLink Network, Inc., supra, 396 F.3d 500 [applying the exemption where service provider continued to accept emails to a subscriber after terminating his account]). Google also cites Kirch v. Embarq Management Co. (10th Cir. 2012) 702 F.3d 1245, which applied the exemption to an internet service provider that worked with an online advertising company to conduct a technology test for directing ads to relevant users. Finally, it cites unpublished California federal opinions applying the exemption to conduct very similar to the practice at issue in this case. (See In re Google, Inc. Privacy Policy Litigation (N.D. Cal., Dec. 28, 2012, No. C 12-01382 PSG) 2012 WL 6738343, at *6 [“the inescapably plain language of the Wiretap Act … excludes from the definition of a ‘device’ a provider’s own equipment used in the ordinary course of business”]; In re Google, Inc. Privacy Policy Litigation (N.D. Cal., Dec. 3, 2013, No. C-12-01382-PSG) 2013 WL 6248499, at *10-11 [discussing the exemption at length].)

Plaintiffs urge the Court to adopt the approach described in In re Google Inc. Gmail Litigation (N.D. Cal., Sept. 26, 2013, No. 13-MD-02430-LHK) 2013 WL 5423918 (“Gmail”) and Matera v. Google Inc. (N.D. Cal., Aug. 12, 2016, No. 15-CV-04062-LHK) 2016 WL 8200619. Gmail distinguished many of Google’s authorities discussed above and held that the ordinary course of business exemption is “narrow” and applies only where a “service provider’s interception facilitates the transmission of the communication at issue or is incidental to the transmission of such communication.” (Gmail, supra, 2013 WL 5423918, at *8.) With regard to Google’s practice at issue here, Gmail stated that the exception would apply “only if the alleged interceptions were an instrumental part of the transmission of email.” (Ibid.)

The Court respectfully finds that the standard described in Gmail is unlikely to be adopted by the courts of the states at issue. The plain meaning of “in the ordinary course of its business” clearly encompasses practices much broader than those “instrumental” to a service provider’s transmission of communications.

At the same time, the cases cited by Google (with the exception of the unpublished opinions in In re Google, Inc. Privacy Policy Litigation) apply the exemption at summary judgment or following trial. They examine the details of the practice at issue and consider the privacy interests at stake. These and other relevant authorities suggest a more moderate approach than the positions adopted by either Google or plaintiffs. Such an approach is described in the well-reasoned opinion in Campbell v. Facebook Inc. (N.D. Cal. 2014) 77 F.Supp.3d 836. As explained by that opinion,

Gmail took a narrow view of the “ordinary course of business” exception and held that it covers only interceptions that are “instrumental” (or “facilitate[ ]” or are “incidental”) to the provision of electronic communication services, while Google took the broader view that the interception need only be part of a defendant’s “customary and routine” business practices. In so doing, both courts presented persuasive reasons to avoid an overly broad or narrow approach.

For instance, the Google court rejected a “narrow read” of the exception that would be “limited to only action taken to deliver the electronic communication.” Instead, as mentioned above, the Google court found that “Congress specifically chose the broader term ‘business’ that covers more far- ranging activity.” The Google court rejected the plaintiffs’ argument that the exception should cover only “necessary” activities, pointing out that such a rule would “beg[ ] the question of what exactly it means for a given action to be ‘necessary’ to the delivery of Gmail.”

While the Google court emphasized the need to give meaning to the term “business,” the Gmail court cautioned that an overly broad interpretation of the exception would read the word “ordinary” out of the statute. (“The presence of the modifier ‘ordinary’ must mean that not everything Google does in the course of its business would fall within the exception.”). The Gmail court ultimately found that the exception must be given a “narrow reading” that requires “some nexus between the need to engage in the alleged interception and the subscriber’s ultimate business, that is, the ability to provide the underlying service or good.”

The court agrees that the word “ordinary” serves to narrow the exception, while the term “business” serves to broaden it. The court also finds it significant that the statute exempts activities conducted by a “provider of wire or electronic communication service in the ordinary course of its business.” The use of the word “its” indicates that the court must consider the details of [the defendant’s] business, and must not rely on a generic, one-size-fits-all approach that would apply the exception uniformly across all electronic communication service providers. (Campbell v. Facebook Inc., supra, 77 F.Supp.3d at pp. 843-844, citations omitted; see also Crosland v. Horgan (1987) 401 Mass. 271, 275 [federal cases “reveal an evolving approach to disputes regarding the ambit of what constitutes ordinary course of business” and suggest that the exemption should not be applied or rejected in a wholesale fashion, but based on the particular circumstances in a given case; “in light of the statutory purpose of protection from invasions of privacy, neither the concept of legitimate business purpose nor ‘ordinary course of business’ can ‘be expanded to mean anything that interests a company’ ”] internal citations and quotations omitted.)

Evaluating an argument similar to Google’s here, Campbell held it could not determine on the pleadings whether interceptions for the purpose of targeted advertising fell within the ordinary course of business exemption, rejecting “the suggestion that any activity that generates revenue for a company should be considered within the ‘ordinary course of its business.’ ” (Campbell v. Facebook Inc., supra, 77 F.Supp.3d at p. 844.)

[T]he statute’s inclusion of the word “ordinary” implies some limits on a company’s ability to self-define the scope of the exception. An electronic communications service provider cannot simply adopt any revenue-generating practice and deem it “ordinary” by its own subjective standard. The court instead finds that any interception falling within the exception must be related or connected to an electronic communication provider’s service, even if it does not actually facilitate the service. While the court agrees with the Google court’s holding that the exception must cover more than just “necessary” activities, it also agrees with the Gmail court’s finding that there must be “some nexus between the need to engage in the alleged interception and the subscriber’s ultimate business, that is, the ability to provide the underlying service or good.” (Campbell v. Facebook Inc., supra, 77 F.Supp.3d at p. 844.) The court recognized “the need for the ECPA in general, and the ‘ordinary course of business’ exception in particular, to be read as flexible enough to adapt to technologies that arose long after the statute’s passage in 1986,” noting that “[m]uch of what is ‘ordinary’ today was not at all ‘ordinary’ in 1986, so the scope of the exception cannot be set in stone.” (Id. at pp. 845-846.)

This Court concurs with the detailed reasoning of Campbell and finds it consistent with the approaches of other federal and state courts. It accordingly rejects Google’s argument that any interception of communications for advertising purposes necessarily falls within the ordinary course of business exemption under the wiretapping statutes at issue.7 Because facts sufficient to determine whether the exemption applies do not appear on the face of the Consolidated Complaint, the issue is not appropriately resolved on demurrer.

Google’s demurrer on this ground will accordingly be denied.” John Callan, Et Al. V. Google LLC, Et Al., 18-CV-324895 (8/13/2019) (https://trellis.law/ruling/18-CV-324895/john-callan-et-al-v-google-llc-et-al/201909139c43ef).

California’s “Shine The Light” Law (CA Civil Code § 1798.83).

Enforceable January 1, 2005, California’s “Shine The Light Law” requires businesses:

• With more than 20 employees;

• Upon a customer’s request:

• In writing;

• By email; or

• If requested by the company, by a Toll-free:

  • Telephone number; or

  • Fax number;

• Delivered to the business’:

• Physical Address;

• Email; or

• Agents (who must all be put on notice by the business);

• After effective to the customer by:

• Notifying all agents with access to the customers’ data of the statute;

• A link on the business’ Website homepage:

• To a page titled “Your Privacy Rights”; or

• With the words “Your Privacy Rights”

• Linking to the business’s privacy policy;

• Containing notice of the customer’s right to so request;

• Including other conspicuous language on the Website apprising a user;

• To provide a report:

• Free of Charge;

• In writing or email;

• Within a 30 day window; or

• If extended according to the statute, within 150 days;

• That includes:

• The details of any disclosure of the customer’s personal information, including:

• An individual’s name and address;

• Email address;

• Age or date of birth;

• Names of children;

• Email or other addresses of children;

• Number of children;

• The age or gender of children;

• Height;

• Weight;

• Race;

• Religion;

• Occupation;

• Telephone number;

• Education;

• Political party affiliation;

• Medical condition;

• Drugs, therapies, or medical products or equipment used;

• The kind of product the customer purchased, leased, or rented;

• Real property purchased, leased, or rented;

• The kind of service provided;

• Social security number;

• Bank account number;

• Credit card number;

• Debit card number;

• Financial account or balances; or

• Payment history; and

• Any of the categories of personal information disclosed:

• Name and address;

• Electronic mail address;

• Age or date of birth;

• Names of children;

• Electronic mail or other addresses of children;

• Number of children;

• The age or gender of children;

• Height;

• Weight;

• Race;

• Religion;

• Occupation;

• Telephone number;

• Education;

• Political party affiliation;

• Medical condition;

• Drugs, therapies, or medical products or equipment used;

• The type of product the customer:

  • Purchased; Leased; or

  • Rented;

• Real property purchased, leased, or rented;

• The kind of service provided;

• Social security number;

• Bank account number;

• Credit card number;

• Debit card number;

• Financial accounts or balances;

• Payment history; or

• Credit information;

• To a third party:

• Known or reasonably believed to;

• Have used the information for Direct Marketing purposes;

• Within the prior calendar year; and

• The names and addresses of all of the third parties that received the personal information in the past year; or

• If the names cannot be determined, examples of the products or services marketed...sufficient to give the customer a reasonable indication of the nature of the third parties’ business.

Direct Marketing Opt-Out (CA CC § 1978.83(c)(2))

A business required to comply with the Shine The Light Law may comply by:

• Adopting a privacy policy of:

  • Not disclosing customers’ personal information;

  • To third parties engaged in Direct Marketing;

• Absent an affirmative opt-in agreement by the customer; and

• Publicly providing notice thereof to customers of their right to opt-out; and

• Providing a low-cost means of opting out.

Case Law Application of CA CC § 1978.83(c)(2):

“Defendant argues that a demurrer should be sustained as to Plaintiff’s claim because Defendant complied with § 1978.83(c)(2) by adopting and disclosing “a policy of not disclosing personal information of customers to third parties for the third parties’ direct marketing purposes unless the customer first affirmatively agrees to that disclosure.” CC § 1798.83(c)(2).

“Defendant’s privacy policy is attached as Exhibit 3 to Plaintiff’s complaint and can, therefore, be considered by the Court. The policy does not comply with the requirements of § 1798.83 (c)(2). The phrase “direct marketing” does not appear anywhere in the Privacy Policy. There is no provision requiring the customer’s agreement before information is provided.

“Further, the second paragraph of the policy reads as follows: ‘Please know that Tillys will never disclose your personal information to any third party, unless it is necessary to provide you with products or services from Tillys or as otherwise described in our Privacy Policy…’

“That language could be interpreted as suggesting that information may be disclosed to third parties for unspecified reasons.

“In addition, the policy also contains the following language: We may allow third-party companies to serve ads or collect certain information about you when you visit the Sites. These companies may use browsing information (e.g., click stream information, Web browser type, time and date, subject of advertisements clicked or scrolled over) during your visits to the Sites and other web sites in order to provide advertisements about products and services likely to be of interest to you. These companies typically use a cookie or other technology to collect this information....Defendant’s privacy policy does not adopt “a policy of not disclosing personal information of customers to third parties for the third parties’ direct marketing purposes unless the customer first affirmatively agrees to that disclosure.” The demurrer is overruled on this ground.” Gonzales Vs Tilly’s Inc., 30-2018-00999952-CU-BT-CXC (1/25/2019) (https://trellis.law/ruling/30-2018-00999952-CU-BT-CXC/gonzales-vs-tillys-inc/20190125616bb0).

Restrictions on Employers’ Access To Employees’ Social Media

Since 2003, CA Labor Code § 980 prohibits an employer from asking an employee to:

• Disclose a username or password for the purpose of accessing personal social media.

• Access personal social media in the presence of the employer; or

• Divulge any personal social media

  • Except social media information “reasonably believed to be relevant to”; and Solely used in investigating the employee’s misconduct or legal violations.

“Social media” is defined to include:

• An electronic service or account; or

• Electronic content, including without limitation:

  • Videos;

  • Still photographs;

  • Blogs;

  • Video blogs;

  • Podcasts;

  • Instant and Text Messages;

  • Email;

  • Online services or accounts; or

  • Internet Web site profiles or locations.

LC § 980(d) excepts employers accessing an “employer-issued electronic device.”

LC § 980(e) similarly prohibits an employer from:

• Discharging;

• Disciplining;

• Threatening to discharge or discipline; or

• Otherwise retaliating against:

Employees refusing to comply with such a demand, unless “otherwise permitted by law.”

Restrictions on Employers From Contractually Limiting Employees’ Speech

Several high profile cases Employers must be mindful of a new law concerning the rights of their employees to disclose information about unlawful acts at their workplace, including employee comments on social media.

Effective January 1, 2020, CA Government Code § 12964.5 prohibits California-based employers from offering financial incentives to employees for signing a release of legal claims against the employer, except as part of the settlement of an existing claim.

Non-Disparagement Agreements Are Limited

More relevant to the issue of social media, § 12964.5(a)(2) forbids conditioning the financial incentive on an employee’s entering into “a nondisparagement agreement” denying the employee the right to “disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.”

Only disparagement of the employer concerning unlawful activities is prohibited; the statute does not prohibit agreements to prevent an employee from critiquing the quality of the employer’s product or service, provided it is still legal.

But employers must use caution; e.g., an employee’s statement that a restaurant is ‘dirty’ may implicate health codes, and thus the employer’s negotiating to restrict such commentary may violate the statute.

Financial Incentive

Specifically, employers are prohibited from requesting the employee sign a nondisparagement agreement:

• In exchange for:

  • A raise; or

  • A bonus;

• Or as a condition of:

  • Employment; or

  • Continued employment.

Any such agreement between the employer and employee is unenforceable and deemed “contrary to public policy.”

Existing Settlement Agreement

The statute does not prevent an employer from offering financial incentives to settle an existing claim, described as “a negotiated settlement agreement.” This includes claims filed in:

• An administrative agency;

• An Alternative Dispute Resolution forum; or

• The employer’s internal complaint process.

Any such claim resolution must:

• Be Voluntary;

• Be deliberate;

• Be informed;

• Provide consideration of value to the employee; and either:

  • Include the employee’s representation by an attorney; or

  • Include notice that the employee can retain an attorney.

Restrictions on Educational Institutions’ Access To Students’ Social Media

Effective since January 1, 2013, §§ 99120-99122 of California’s Education Code forbid any secondary educational institution (public or private) from asking students to display, reveal or grant access to their social media activity.

Scope

The laws apply to any “postsecondary educational institutions”:

• Whether public or private;

• Including their “employees and representatives”;

The statutes protect:

• Students;

• Prospective students; or

• Student Groups

Definition of Social Media

Social media is defined rather broadly under the Education Code; the definition includes “an electronic service or account, or electronic content,” including without limitation:

• Videos;

• Still photographs;

• Blogs;

• Video blogs;

• Podcasts;

• Instant and text messages;

• Email;

• Online services or accounts; or

• Internet Web site profiles or locations.

Prohibited Activity

It prohibits requiring or even asking a student (student group or prospective student) to:

• Disclose a user name or password for accessing personal social media;

• Access personal social media in the presence of a school employee or representative; or

• Divulge any personal social media information.

Discipline For Not Revealing Social Media is Prohibited

EC § 991121 forbids any such educational institution from disciplining or threatening to discipline the student in any way for failing to comply with a request violating the prohibition. This includes (without limitation) suspension or expulsion.

However, EC § 991121 does not:

• Affect the school’s “existing rights and obligations to protect against and investigate alleged student misconduct or legal violations; or

• Prohibit the school from “taking any adverse action against a student, prospective student, or student group for any lawful reason.”

Privacy Policy

EC § 99122 requires secondary schools to post their social media privacy policy on the school’s website.

California State Cases Relevant to Social Media Communication and Stored Information

Applicability of Communications Decency Act Section 230 Immunity

“Plaintiff’s opposition fails to cite any authorities that contradict the extensive citations to state and federal authorities holding that the CDA bars claims based upon exactly same conduct as alleged here, i.e. allowing a third party to “hack” or otherwise access or modify a social media account, and failing to remove such offensive content upon demand, whether sounding in negligence, or as breach of contract. (See for example, Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 207).” Quinteros Vs. Taylor, 30-2018-01039098-CU-DF-CJC (8/27/2019) (https://trellis.law/ruling/30-2018-01039098-CU-DF-CJC/quinteros-vs-taylor/2019092733fca9).

Social Media Constitutes Publication Under Defamation Law

“Geddes has alleged that the allegedly defamatory statement was "a public post made on social media for the entire world to see." (Geddes Cross-Complaint, ¶ 94.) Therefore, the court concludes that the statement is alleged to have been made on a public forum.” Lisa Agulia Vs. Joseph L Johnson, 56-2018-00516833-CU-BC-VTA (11/14/2019) (https://trellis.law/ruling/56-2018-00516833-CU-BC-VTA/lisa-agulia-vs-joseph-l-johnson/20191114671c31).

Determining Whether Social Media Publication is in Public Interest

Current Standard: FilmOn.com, Inc. v. DoubleVerify, Inc. 7 Cal.5th 133 (2019)

“The Supreme Court has noted that the context of the statement is relevant, and courts must use a two-part test. (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145.)

“First, the court must decide what “issue of public interest the speech in question implicates—a question we answer by looking to the content of the speech…’ Second, the court examines whether a “functional relationship exists between the speech and the public conversation about some matter of public interest...’ This second part of the test includes determining if the speaker ‘participated in, or furthered, the discourse that makes an issue one of public interest…’” Julie Verner vs. American Business Bank, Et. Al., 19STCV12027 (https://trellis.law/ruling/19STCV12027/julie-verner-vs-american-business-bank-et-al/2019121860ddf2) (12/18/2019).

“Even more recently, the High Court held in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal. 5th 133, that under section 425.16's ‘catchall provision,’ courts must consider whether a statement contributes to or furthers the public conversation on an issue of public interest. And just last summer, the High Court in Wilson v. CNN (2019) 7 Cal.5th 871, 889 declined to ‘immunize claims of discrimination or retaliation from anti-SLAPP scrutiny.’” Omahen Vs Hall, 37-2019-00035901-CU-BC-CTL (11/7/2019) (https://trellis.law/ruling/37-2019-00035901-CU-BC-CTL/omahen-vs-hall/20191107cfebff).

“In FilmOn, the California Supreme Court considered the impact of the commercial nature of speech on whether it was protected under the catchall provision of Section 425.16, subdivision (e)...When evaluating speech of a private or commercial nature, courts historically considered whether: “(1) The subject of the statement or activity precipitating the claim was a person or entity in the public eye [citations] [;] (2) The statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants [citations] [;] (3) The statement or activity precipitating the claim involved a topic of widespread public interest. [Citations.]” (Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 33, citing Rivero v. American Fed. of State, County and Municipal Employees, AFL–CIO (2003) 105 Cal.App.4th 913.) In FilmOn, the California Supreme Court sought to “clarify how the context of a statement more broadly—including the identity of the speaker, the audience, and the purpose of the speech—informs the [ ] analysis.” (FilmOn, supra, 7 Cal.5th at p. 140.) The court ultimately held the “context of a defendant’s statement is relevant, though not dispositive, in analyzing whether the statement was made ‘in furtherance of’ free speech ‘in connection with’ a public issue.” (Ibid., quoting Code Civ. Proc., § 425.16, subd. (e).) In doing so, the court observed: “In an age of easy public access to previously private information through social media and other means, context allows us to assess the functional relationship between a statement and the issue of public interest on which it touches—deciding, in the process, whether it merits protection under a statute designed to ‘encourage continued participation in matters of public significance.’” (FilmOn, supra, 7 Cal.5th at p. 140, quoting Code Civ. Proc., § 425.16, subd. (a).)

With that context in mind, “[i]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.) Courts, including the California Supreme Court, have rejected defendants’ attempts to recast statements about discrete or private issues as statements about broader issues of public policy. Luminati Networks, Ltd. V. Trend Micro, Inc. 19CV347274 (11/7/2019) (https://trellis.law/ruling/19CV347274/luminati-networks-ltd-v-trend-micro-inc/201911076bfec9).

“TMI also asserts in a conclusory manner that an online review of a product or service may qualify as a statement on an issue of public interest. But even before FilmOn, consumer information about a company’s business practices ordinarily had to concern a particularly prominent or well-known business whose practices affect a large number of people to qualify as an issue of public interest. (Wilbanks, supra, 121 Cal.App.4th at p. 898.) For example, in Gilbert v. Sykes (2007) 147 Cal.App.4th 13, cited by TMI, the Third District concluded that a website about plastic surgery that also included a negative review of a prominent plastic surgeon furthered the debate on the risks and benefits of plastic surgery such that it concerned an issue of public interest. In reaching this conclusion, the Third District focused on the content of the website as a whole—a website that did concern the general issue of the risks and benefits of plastic surgery—and the prominent stature of the physician. (Gilbert, 147 Cal.App.4th at pp. 23–24, citing Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534.) TMI does not explain and it is not otherwise obvious how Gilbert is analogous in light of the circumstances of the publication that were material to the Third District’s decision. For example, it is not apparent HolaVPN or Luminati are prominent companies (generally or in a particular market) or that their business practices impact a significant number of people, especially in light of the large number of personal computing devices in use throughout the world. TMI does not argue or identify any evidence in the record to support such conclusions. And, this court has no obligation to comb the record for facts that could conceivably support TMI’s position. (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934.) Luminati Networks, Ltd. V. Trend Micro, Inc. 19CV347274 (11/7/2019) (https://trellis.law/ruling/19CV347274/luminati-networks-ltd-v-trend-micro-inc/201911076bfec9).

Popular Social Media Account Insufficient To Establish Public Interest

“Caltech also argues that the alleged statements were made in connection with an issue of public interest pursuant to subsection (e)(3) because it was made as a part of an investigation related to access to information used for space exploration missions. It argues that its statements pertain to the security of such data and thus there is ‘in dispute that this conduct is an issue of public interest...’ It also points to the fact that Caltech’s JPL has millions of followers on social media platforms and that JPL’s activities are the topic of many news articles across the country and world...

“However, the Court does not find that statements made by Caltech that Plaintiff was in possession of confidential information was made in a place open to the public or a public forum, or that it was made in connection with an issue of public interest....While Caltech may be correct that topics regarding safe space exploration is a matter of public interest, statements made about whether Plaintiff was in possession of confidential documents to complete a project as a contractor is not of public interest as stated under the code. Rather, these statements concern more private matters between companies and its employees/contractors regarding private rules/regulations and employment agreements (i.e., non-disclosure and confidentiality agreements).” David Lillie vs. California Institute of Technology - Jet Propulsion Laboratory, 19BBCV00346 (11/8/2019) (https://trellis.law/ruling/19BBCV00346/david-lillie-vs-california-institute-of-technology-jet-propulsion-laboratory/20191108c76ba4).

Social Media and California Constitution

“With this fundamental principle in mind, it is apparent that Prager does not state a claim under the California Constitution. Prager contends that “YouTube is the cyber equivalent of a town square where citizens exchange ideas on matters of public interest” and that defendants have opened their platform to the public by advertising its use for this purpose. However, Prager does not allege that it has been denied access to the core YouTube service. Rather, it urges that its access to “Restricted Mode” and YouTube’s advertising service has been restricted. Prager does not persuade the Court that these services are freely open to the public or are the functional equivalent of a traditional public forum like a town square or a central business district.1 Considering “the nature, purpose, and primary use of the property; the extent and nature of the public invitation to use the property; and the relationship between the ideas sought to be presented and the purpose of the property’s occupants” (Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th at p. 119), it is clear that these services are nothing like a traditional public forum. “Restricted Mode” is an optional service that enables users to limit the content that they (or their children, patrons, or employees) view in order to avoid mature content. Limiting content is the very purpose of this service, and defendants do not give content creators unrestricted access to it or suggest that they will do so. The service exists to permit users to avoid the more open experience of the core YouTube service. Similarly, the use of YouTube’s advertising service is restricted to meet the preferences of advertisers. (See FAC, ¶ 80 [stated purpose of advertising restrictions “is to keep Google’s content and search networks safe and clean for our advertisers …”]; Declaration of Brian M. Willen, Exs. 7-9.)

“Defendants correctly urge that even to recognize the core YouTube platform as a public forum would be a dramatic expansion of Robins. As one federal court observed, “[t]he analogy between a shopping mall and the Internet is imperfect, and there are a host of potential ‘slippery slope’ problems that are likely to surface were [Robins] to apply to the Internet.” (hiQ Labs, Inc. v. LinkedIn Corporation (N.D. Cal. 2017) 273 F.Supp.3d 1099, 1116 [observing that “[n]o court has expressly extended [Robins] to the Internet generally”], aff’d and remanded (9th Cir. 2019) 938 F.3d 985.) However the courts of this state ultimately view that analogy with regard to a dominant, widely-used site like the core YouTube service, the analogy falls apart completely on the facts alleged here. “Restricted Mode” and YouTube’s advertising service are new, inherently selective platforms that do not resemble a traditional public forum. As discussed below, even more than the core YouTube service, these platforms necessarily reflect the exercise of editorial discretion rather than serving as an open “town square.” Prager University V. Google LLC, Et Al., 19-CV-340667 (10/25/2019) (https://trellis.law/ruling/19-CV-340667/prager-university-v-google-llc-et-al/20191025aa59c8).

Social Media and California’s Anti-SLAAP Statute

“Finally, Prager contends that cases that have deemed web sites to be “public forums” for purposes of California’s “anti-SLAPP” statute require this Court to extend Robins to its claim. However, the anti-SLAPP statute encompasses speech “in a place open to the public or a public forum in connection with an issue of public interest” (Code Civ. Proc., § 425.16, subd. (e)(3), emphasis added), and has been applied to locations that clearly do not meet the standard described in Golden Gateway Center. (See, e.g., Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807 [anti-SLAPP statute applied to comments made during on-air discussion on talk radio].) “[T]he protections afforded by the anti-SLAPP statute are not coextensive with the categories of conduct or speech protected by the First Amendment or its California counterparts (Cal. Const., art. I, §§ 2–4).” (Industrial Waste & Debris Box Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135, 1152.) “As our high court recently reaffirmed, ‘courts determining whether conduct is protected under the anti-SLAPP statute look not to First Amendment law, but to the statutory definitions in section 425.16, subdivision (e).’ ” (Ibid., quoting City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.)” Prager University V. Google LLC, Et Al., 19-CV-340667 (10/25/2019) (https://trellis.law/ruling/19-CV-340667/prager-university-v-google-llc-et-al/20191025aa59c8)

Public Disclosure of Private Facts on Social Media

In the instant case, Chyna and Plaintiff debate whether the releasing of Plaintiff’s email address and phone number on social media was “offensive” under the law. The standard for offensiveness in the context of public disclosure of private facts considers “the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.” (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1483–1484.)

While California courts have not directly addressed the issue at hand, several Federal cases have indicated that publication of an individual’s home address, without more, cannot be viewed as an invasion of privacy. (See, e.g., Alvarado v. KOB-TV, L.L.C. (10th Cir. 2007) 493 F.3d 1210, 1218–1219; McNutt v. New Mexico State Tribune Co. (N.M. Ct. App. 1975) 88 N.M. 162.) However, as both courts note, home addresses are generally public facts, which makes the publication of such address “mere publication[.]” (Alvarado v. KOB-TV, L.L.C., supra, 493 F.3d at 1218–1219.)

As Plaintiff Jones’ email address and cell phone number are not published elsewhere (such as in a phone book) they are not public facts like the home addresses addressed above, which makes their disclosure more than mere publication.

In Cockrum v. Donald J. Trump for President, Inc., a District Court for the Eastern District of Virginia addressed the issue of WikiLeaks’ disclosure of emails stolen from the Democratic National Committee. (Cockrum v. Donald J. Trump for President, Inc. (E.D. Va. 2019) 365 F.Supp.3d 652, 655, case dismissed (4th Cir., July 5, 2019, No. 19-1398) 2019 WL 5152518.) In Cockrum, the stolen emails were posted on the Internet, and the posted emails included the plaintiffs’ personal information including social security numbers, dates of birth, home addresses, phone numbers, and banking relationships. (Id.) The court dismissed the claims for public disclosure of private facts because the State of Virginia does not recognize a common law right to privacy. (Id. at 671.)

Unfortunately, as the Cockrum court mentions, public disclosure of private facts is a sparsely litigated invasion of privacy tort. (Id. at 667.) However, a common theme regarding disclosure of private contact information is whether the information has been previously published/disclosed. (Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 494–495 [“the interests in privacy fade when the information involved already appears on the public record”].) Additional themes include whether the plaintiff had an objectively reasonable expectation of seclusion or solitude in his information. (See Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 232, as modified on denial of reh'g (July 29, 1998).)

Here, Chyna does not argue that Plaintiff Jones’ email address and cell phone number were already in the public record. Chyna also does not argue that Plaintiff Jones did not have a reasonable expectation of privacy in his personal contact information.

The Complaint in this case alleges that Chyna released Plaintiff’s cell phone number and email address to the public and encouraged the public to contact him when posting the private contact information...As a result of such disclosure and encouragement, Plaintiff received various “scurrilous, disgusting, and threatening messages from unidentified members of the public” including threats on his life (For example, “And today will be the last day of you walking bitch”)...

The Court finds that the Complaint sufficiently alleges a claim for public disclosure of private facts because Plaintiff had a reasonable expectation of privacy in his private contact information, and releasing such information was offensive because it accompanied encouragement to contact Plaintiff and expectedly resulted in the public contacting Plaintiff with threatening and violent messages...The Demurrer is OVERRULED as to the Second Cause of Action. Justin C Jones vs. Robert Kardashian Et Al, BC678014 (11/21/2019) (https://trellis.law/ruling/BC678014/justin-c-jones-vs-robert-kardashian-et-al/20191121f569b2).

Cyberbulling on Social Media

“The Complaint alleges the Third Cause of Action – Cyberbullying against Chyna, in violation of Penal Code section 653.2…[which] makes it a misdemeanor for a person, with intent to place another person in reasonable fear for his safety, to electronically distribute, publish, e-mail, hyperlink, or make available for downloading, personal identifying information which would be likely to incite or produce unwanted physical contact, injury, or harassment, by a third party...

In this Demurrer, Chyna argues that Penal Code section 653.2, a criminal statute, does not provide for a private right of action in a civil matter. (Motion at pp. 6-8.) In Opposition, Plaintiff concedes that section 653.2 does not reference an express private right of action but argues that the allegations in the Complaint nonetheless constitute cyberbullying...

Whether a party has a right to sue under a statute depends on whether the Legislature has manifested an intent to create such a private cause of action under the statute, and such legislative intent, if any, is revealed through the language of the statute and its legislative history…Here there is no evidence in the legislative history of section 653.2 that the legislature intended such private right of action and Plaintiff does not provide any evidence of such intent. Justin C Jones vs. Robert Kardashian Et Al, BC678014 (11/21/2019) (https://trellis.law/ruling/BC678014/justin-c-jones-vs-robert-kardashian-et-al/20191121f569b2).

Intentional Infliction of Emotional Distress on Social Media

“In her Motion, Chyna argues that her alleged public release of Plaintiff’s phone number and email address is not sufficiently extreme or outrageous conduct as to constitute IIED...Plaintiff argues that the conduct was sufficiently outrageous because Chyna posted the private information on her social media account with many followers, with conscious disregard that those fans would contact Plaintiff and threaten him...

A defendant’s conduct is “outrageous” when it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Jackson v. Mayweather, supra, 10 Cal.App.5th at 1265.)

Here, the Complaint alleges that Chyna posted Plaintiff’s email address and private cell phone number of her social media account and encouraged the public to contact him...Because Chyna is a celebrity persona with many social media followers, publicizing another person’s private contact information with directions to contact that person is substantially likely to cause distress to that other person, which the Complaint alleges to have resulted in violent threats...The Plaintiff is entitled to have a jury decide whether the alleged conduct is sufficiently outrageous due to the high number of social media followers, amounting to power over Plaintiff, who would have unauthorized access to Plaintiff’s private contact information. Justin C Jones vs. Robert Kardashian Et Al, BC678014 (11/21/2019) (https://trellis.law/ruling/BC678014/justin-c-jones-vs-robert-kardashian-et-al/20191121f569b2).

“Plaintiffs allege that Bella had existing customers, i.e., an existing economic relationship, who were also Defendant Rivera’s social media followers...Defendant Rivera allegedly knew of these economic relationships and future economic benefit to Bella, and made false and disparaging statements about Plaintiffs on Instagram Live, on social media and on other media platforms to intentionally disrupt the aforementioned economic relations...(alleging that Plaintiffs were stealing from Plaintiff)...The alleged statements are independently wrongful acts because they allegedly constitute slander...Plaintiff alleges that, as a result, Bella’s economic relations were in fact disrupted...The fifth cause of action is sufficiently pled...The demurrer to the fifth cause of action is OVERRULED.” Bella All Natural, Inc. vs. Mayeli Alonso, 18STCV08265 (12/5/2019) (https://trellis.law/ruling/18STCV08265/bella-all-natural-inc-vs-mayeli-alonso/20191205f66713).

Cox has shown that A.H. received procedural due process. (See UMF Nos. 1-12.) On prom night, Cox told A.H. that other students accused him of having marijuana. The following Monday, Cox told A.H. that there were social media messages that implicated that A.H., and that there were reports that A.H. brought alcohol on the bus. That was enough to allow A.H. to respond to the allegations against him. (See Goss.) A.H. initially denied the accusations, but after only a few minutes in Cox's office on Monday (and after Cox told him he would not be punished if he was honest), A.H. admitted to bringing drugs and alcohol on the bus, and hiding the evidence of drugs and alcohol, all in a written statement. He also admitted in writing to using a fake ID, something Cox had not accused him of. After the admission, Cox was not obligated to conduct a further investigation or provide A.H. with further information. (See Kowalski.) A.H.'s statement was not coerced. Cox asked him to be honest, but did not tell him what to say in his statement. A.H. admitted to more wrongdoing than he had been accused of. A.H. was not deprived of any procedural due process. AH Vs. Simi Valley School District, 56-2018-00512587-CU-PO-VTA - (12/16/2019) (https://trellis.law/ruling/56-2018-00512587-CU-PO-VTA/ah-vs-simi-valley-school-district/20191216471cdf).

Discovery of Defendant’s Social Media Account Information

“As for Plaintiff's request for an order directing Defendant Jessica Peatross, M.D. to provide access to certain social media accounts, the Court is persuaded that the balance of the above factors weighs against issuing preliminary injunctive relief. The evidence before the Court shows that Plaintiff has an adequate remedy at law…Moreover, Plaintiff has failed to demonstrate a likelihood of prevailing on the merits in light of the conflicting evidence regarding whether an enforceable agreement between the parties exists.” Nupeutics Natural Vs Peatross, 37-2019-00057074-CU-BC-NC (12/26/2019) (https://trellis.law/ruling/37-2019-00057074-CU-BC-NC/nupeutics-natural-vs-peatross/20191226e7d00c).

Employer Access to Employee’s Social Media Prior

“As for the individual right of privacy, to the extent that any discovery requests seeks an individual’s personnel files, disciplinary actions, social media or other individual private information, besides date of hire and separation and contact information, the objection is well-taken. An invasion into an individual’s right of privacy must be narrowly tailored and Plaintiff has not established that the requests at issue have been so narrowly tailored or that there is not a less intrusive means of obtaining the information. The Court therefore declines to compel further responses as to items 1, 2, 3, 4, 38, 39. Finally, as to items 15, 18, and 19, Defendant is ordered to give notice of the requests to any relevant employees or former employees, and an opportunity to object to the release of the information Relevance: “Unless otherwise limited by order of the court . . ., any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending . . ., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence” RPDs No. 5 and 6 require Defendant to turn over information related to collisions involving either individual defendant in this matter. Defendant has objected, stating that there has been one collision involving the Company President, occurring after Complainant separated from the company. This information is not admissible evidence, nor is it reasonably calculated to lead to the discovery of admissible evidence. Plaintiff’s justification for requesting the information is comparator information but it is not comparator information where plaintiff and the Company President are not similarly situated. Defendant has provided information related to an employee collision. The motion to compel further responses to RPDs No. 5 and 6 are therefore denied.” CA Labor Commissioner v Shasta Co. Towing, SCRDCVFL00-0000000-000 (12/16/2019) (https://trellis.law/ruling/SCRDCVFL00-0000000-000/ca-labor-commissioner-vs-shasta-co-towing/20191216f9577d).

Discovery of Social Media Postings

“Defendant argues that plaintiff improperly limited the request to MCU employees, and that defendant is aware that plaintiff posted pictures of herself promoting her company KNL Fitness on her Instagram and photos presumably taken by Lamadrid. Further, defendant argues, her social media postings are relevant to her claims of emotional distress damage. Defendant also contends that there was an anonymous complaint about her ‘seen on social media in sexual positions, one of which was with our current IT partner DivergeIT…’

“Plaintiff states in her declaration that there was only one post to her Instagram, which was the video regarding KNL Fitness and that she no longer has access to that video.

“The document request is overly broad as it requests ‘all pictures,’ and defendant has not shown good cause for “all pictures…’ The court finds that plaintiff’s response is compliant.“ Kathleen Ruiz vs Marymount California University, YC073179 (10/22/2019) (https://trellis.law/ruling/YC073179/kathleen-ruiz-vs-marymount-california-university/20191022f7019d).

Print Out From Social Media Is Hearsay Without Foundation

many grounds, including hearsay, lack of foundation, vague and ambiguous, and relevance. The Court sustains Banner’s objections on the basis of hearsay as a mere prefatory statement that the documents, which were not prepared by the declarant, are “true and correct” does not render them admissible. Furthermore, Plaintiff offers no argument that they are either not hearsay, or that some exception applies. (Evid. Code § 1200 et seq.)” Helen Theresa Givens V. Roy Anthony Givens, Et Al., 17CV311029 (10/17/2019) (https://trellis.law/ruling/17CV311029/helen-theresa-givens-v-roy-anthony-givens-et-al/201910179a39c8).

Social Media Messaging by Employee As Evidence For Termination

“The Department’s Office of Professional Accountability investigated Hill’s interactions with Abuslin. The investigator interviewed Abuslin and Hill, reviewed the 300 plus text messages between them, and examined the public portions of Abuslin’s social media accounts...The investigative report found that Hill engaged in sexual text messaging with Abuslin from his personal phone, while both on-and off-duty, and that he engaged in oral sex with Abuslin on one occasion. The investigative report further found that both the sexual texting and the in-person sexual contact adversely affected the employer/employee relationship and reflected unfavorably upon the Department. The investigator found conflicting evidence as to whether Hill knew Abuslin was a sex worker and found no evidence of any payment for sex.” Andre Hill vs. City of Richmond, MSN18-1677 (10/16/2019) (https://trellis.law/ruling/MSN18-1677/andre-hill-vs-city-of-richmond/20191016aa17ae).

Social Media Activity of Employee and Hostile Work Environment For Fellow Employee

“After Lopez reported his presence, Quon was then told to leave...In late December or early January, Lopez learned that someone had created a Facebook account and an Instagram account suggesting that Lopez was a liar...Lopez believes that Quon created these accounts...Lopez had these accounts taken down and then reported the social media accounts to human resources.” Candy Lopez vs. United Parcel Service, Inc. Et Al, BC699489(10/3/2019) (https://trellis.law/ruling/BC699489/candy-lopez-vs-united-parcel-service-inc-et-al/20191003f9f4fb).

“UPS contends that, taken together, this conduct is not sufficiently severe or pervasive to have created a hostile work environment. UPS also contends that Lopez cannot show that Quon’s conduct interfered with her work performance because she has not missed any time from work or treated for emotional distress. (UMF 4, 20.) The Court finds that there is a triable issue of fact as to whether a reasonable employee would be distressed by Quon’s conduct, including the romantic overtures, the attempted contact after Lopez’s rejection of his overtures, and the violation of a directive not to be present at Lopez’s work facility. Furthermore, the Court finds that the evidence submitted by UPS supports an inference that Lopez was, in fact, offended by Quon’s conduct—she reported it to human resources on multiple occasions.” Candy Lopez vs. United Parcel Service, Inc. Et Al, BC699489(10/3/2019) (https://trellis.law/ruling/BC699489/candy-lopez-vs-united-parcel-service-inc-et-al/20191003f9f4fb).

Social Media Posting Insufficient To Put Defendant On Notice of Bedbug Infestation

“Here, Plaintiffs impute knowledge of the bed bug infestation to the Defendants merely based on online reviews listed on bedbugregistry.com; tripadvisor.com and yelp.com. (Complaint, ¶ 21.) However, as Defendants point out, these reviews are not directed to the hotel, but to those using these specific social media forums. There are no allegations Defendants were made aware of these reviews. Plaintiffs make the conclusory allegations that the hotel had an ongoing problem of bed bugs, which the hotel management was aware. (Complaint, ¶ 20.) Unlike Mathias, there are no factual allegations in the Complaint showing Defendants had actual knowledge of guests’ complaints and the presence of bed bugs. Also, unlike Mathias, there are no allegations showing Defendants took specific actions to conceal the infestation.” Hays v. Best Western, MSC17-01657 (8/25/2019) (https://trellis.law/ruling/MSC17-01657/hays-vs-best-western/201909250c79b5).

Social Media Posting As Evidence of Malice In Hate Crime Prosecution

“Grunfeld stockpiled illegal weapons and posted on social media at various times his animus towards transgender people.” Zhoie Perez, An Individual vs. Edduin Zelaya Grunfeld, An Individual, Et Al., 19STCV08710 (8/20/2019) (https://trellis.law/ruling/19STCV08710/zhoie-perez-an-individual-vs-edduin-zelaya-grunfeld-an-individual-et-al/20190920ed0051).