Facebook and Legal Risk

Question:

If I am considering using information from someone’s Facebook profile in my next article or blog post, are there any legal landmines that I need to avoid?

Response By → Levine Sullivan Koch & Schulz:

(Posted on June 19, 2009)

There may be, depending upon the circumstances.  Relying on a Facebook profile as a source of information may create a number of legal risks, typically - although not exclusively - concerning the profile owner’s privacy and intellectual property rights. 

To illustrate these types of risks, imagine this:  There is a blogger who writes about everything there is to know about the State University football team.  She loves being the first to know - and post - the inside scoop.  Her newest idea is to Facebook friend some of the guys on the team to see if she can find anything in their profiles to include in her blog. 

First, she looks up the starting quarterback and, because his privacy settings are not turned on at all, she is able to see his relationship status (“It’s complicated”), a recent status update (“Watch out, got me some new juice!”), and a series of photos he said he took on a recent trip. 

Next, the blogger searches Facebook for a high school sophomore whom she knows is already being recruited by the State U team.  Because of his privacy settings, his profile can only be viewed by friends.  On a whim (or maybe because she got the idea here), the blogger creates a new Facebook profile, using a fake name and a racy photo.  From this profile, she sends the high school recruit a friend invite in which she implies that she met him at a recent party.  Surprisingly (or not so), the recruit friends her.  The blogger reads through his wall and sees a post in which the recruit wrote something that suggested he was part of a support group for child victims of sexual molestation.  She also sees that the recruit has 15 Facebook friends. 

Privacy Rights.  One potentially significant legal issue that the blogger should evaluate before posting anything she found on these profile pages is whether she could legitimately be accused of violating either football player’s right of privacy.  A so-called “publication of private facts” claim allows an individual to seek financial compensation from someone who posts “private” but true information about that individual on a blog if doing so would be considered “highly offensive” and the information is not of “legitimate public concern.”  (See previous privacy post, below.)

The first requirement for this claim is that the information is “private.”  In the above scenarios, if the blogger were to republish the quarterback’s comment about his relationship status (“It’s complicated”), it would be unlikely trigger a successful privacy claim - both because the statement is not the type of “highly offensive” or intimate detail that is usually covered by the tort and because the comment itself isn’t “private” in any meaningful sense, as it can essentially be viewed by “any person with a computer” because the quarterback’s privacy settings are not turned on at all.

In contrast, it is less clear whether the blogger’s republication of the high school recruit’s statement about the support group could possibly give rise to a privacy claim, but greater caution is called for here.  Although facts about sexual abuse may be intimate details of one’s private life, particularly that of a minor, whether those facts are legally “private” within the meaning of the tort can still turn on how many people know about them and whether their revelation would be “highly offensive” under the circumstances.  In addition, the information might be of legitimate public concern or otherwise non-actionable if it had also been disclosed in the context of a legal proceeding.

In the off-line context, at least one court has concluded that facts related to sexual molestation could remain “private” within the meaning of the tort if shared only with select individuals - immediate family and close friends.  But, in the online context, this reasoning may not hold.  In other words, while a court may conclude that a person maintains an expectation of privacy after personally sharing intimate details with close friends and relatives face-to-face, a court might conversely find an expectation of privacy lacking when the same information is broadcast to a group in a format in which it can be quickly and easily forwarded to an even larger group.  Here, keep in mind too that the recruit has shared this information with the blogger, someone whom the recruit presumably believes he only recently met at a party.  And we do not know who the recruit’s other 15 Facebook friends are or their relationship to him.

At bottom, given these factual circumstances, the recruit’s claim may fail even before he reaches the point where he would also need to establish that the blogger’s republication of this information is both highly offensive and not of legitimate public concern.  But, where information on a social network site appears to be intimate in nature and it appears to be shared only with a limited group, there is more reason to believe that privacy issues potentially lurk.

Intellectual Property Rights.  A second legal issue facing the blogger involves the law of copyright.  Even though the quarterback likely could not advance a privacy claim, the blogger still needs to know that the quarterback may have legally-protectable intellectual property rights in the photographs he posted on his Facebook page.  As we described below, copyright protection applies to all manner of expression once that expression is captured in a tangible form, such as in photographs.  Before the blogger does anything with those photos, she should consider whether the use she is contemplating is legally permissible. 

Copyright law, speaking generally, provides the quarterback the exclusive right to reproduce, distribute, or publicly display his photographs.  With some exceptions, if the blogger were to download and repost the photos on her own website and allow others to download them, she may be infringing upon the quarterback’s copyright in the photos.  To minimize the risk of a copyright claim, the blogger could instead post a link to the photos on the quarterback’s profile or could post the photos in a context that would constitute “fair use” (See previous post, below.) under federal law. 

Fraud, Misrepresentation, or Trespass.  Third, although the law is still evolving in the Internet world in this regard, it is theoretically possible that the use of a fake profile to friend the high school recruit and to access his profile could raise an issue of fraud, misrepresentation, or trespass.  Courts have rarely considered how these theories apply to Internet-based conduct - or have done so in circumstances that likely shed little light on the potential for liability under the facts imagined here.  In one high-profile case, a woman created a fake MySpace profile - and pretended to be a 16-year-old boy - to retaliate against a 14-year-old girl who had a falling out with her daughter.  In the course of this ruse, the “boy” developed a romantic interest in the girl but then abruptly ended the relationship; shortly thereafter, the girl committed suicide.  The woman was convicted of a misdemeanor under a federal computer fraud statute for violating the MySpace terms of service - which obligate members to provide truthful registration data and prohibit harassment - in order to obtain information and for doing so in furtherance of tortious conduct, i.e., intentional infliction of emotional distress.  Commentators have roundly criticized the prosecution as pursuing a dubious legal theory.

Traditionally, courts have demonstrated a marked reluctance to impose liability on journalists who misrepresent their identities to obtain entry to a location or to obtain and publish truthful information.  In many cases, the damages alleged are found not to flow from the alleged trespass or fraud - but instead from the plaintiff’s own conduct or from the publication of the information which is entitled to the full protection of the First Amendment.  Analogously, courts should be equally reluctant to impose liability on a blogger who uses a fake profile to obtain and publish truthful information, especially where the information is of legitimate public concern.

Defamation.  Fourth, if the information the blogger reposts is not true and injurious to reputation, she may face a different legal problem.  As the blogger already knows, Facebook profiles are easy to create.  What if she were to write, on the sole basis of the quarterback’s reference to using “juice” (and, say, despite all other evidence to the contrary known to her) that he was using steroids - and then discover that the whole profile was a prank? In that case, the blogger could face a claim of defamation, i.e., publication of a false statement about another person that tends to harm his reputation so as to lower him in the estimation of the community and that was made in reckless disregard of the probable falsity of the statement. 

All in all, while Facebook may offer a wealth of information, under certain circumstances caution may be warranted with regard to how that information is accessed or used.  To reduce risk, the safest route for journalists and bloggers with questions based on their specific situation is to consult an attorney with experience in this area. 

From Geanne:  Thank you Levine Sullivan Koch & Schulz for considering Facebook and reporting and publishing-related legal risk.