Social Media

A three-member panel of the National Labor Relations Board (NLRB) found that it is impermissible for Costco’s social media policy to ban employees from making electronic postings that damage the reputation of the company or anyone else.  The NLRB held that policy was not permissible because Costco employees could reasonably assume that it prohibited communications protected by the National Labor Relations Act (NLRA), such as communications critical of the company’s treatment of its employees.Continue Reading NLRB Finds Costco Social Media Policy Unlawful

A court in Texas recently dismissed a lawsuit it described as “an aspiring class action against a veritable who’s-who of social media companies.”  The Plaintiffs in Opperman v. Path claimed that the Defendants improperly used their smartphone apps to copy, upload, and store Plaintiffs’ address book information without their consent.…

Continue Reading Judge Dismisses Putative Class Action Against “Who’s-Who of Social Media Companies”

Earlier this week, Twitter appealed a New York state judge’s ruling that required the company to produce an Occupy Wall Street protestor’s tweets, email address, and certain subscriber information.  The trial court judge had reasoned that the public nature of Twitter meant that the defendant lacked privacy interests in his…

Continue Reading Twitter Appeals Ruling Requiring It to Produce User’s Tweets and Subscriber Information

This week, Facebook and the American Civil Liberties Union (ACLU) have filed amicus curiae briefs in the Fourth Circuit U.S. Court of Appeals arguing that using Facebook’s “Like” button is speech protected by the First Amendment.  The court of appeals is considering whether to overturn a decision by Eastern District…

Continue Reading Facebook, ACLU Argue that “Like” Button is Protected Speech

On August 1, Illinois became the second state in the country to prohibit employers from requesting or requiring employees to provide their passwords for social networking accounts.  As reported in this blog, Maryland adopted similar legislation in April.  The bill (HB 3782) was signed into law by Illinois Governor…

Continue Reading Illinois Prohibits Employers from Requesting Employees’ Social Networking Passwords

The European Data Protection Supervisor (“EDPS”) has issued an opinion on Europe’s strategy for protecting children on the Internet.  The European Commission consults with the EDPS on a variety of data protection issues.  However, the opinions of the EDPS are not legally binding. 

Among other things, the EDPS expressed support for: 

  • The implementation of technical tools, such as age-appropriate default privacy settings, to enhance the privacy of children online.     
  • Clear notice about the impact a change to a default setting would have on a child’s privacy and the potential harm it may cause. In particular, the EDPS suggested that in some circumstances a child might not be permitted to change the default settings, or might change the defaults only with parental consent, stating that the “extent to which a child may change the default privacy settings should also be linked to the age and level of maturity of the child.  It should be explored to what extent, and within which age group, parental consent would be required to validate a change of privacy settings.” 
  • A requirement that service providers inform children about the level of sensitivity of each piece of information they provide when creating an online profile and about the potential risks or harms they may encounter when such information is disclosed to a defined group of people or to the public. 
  • A restriction on industry’s ability to create online behavioral advertising segments that target children.
  • A legal mandate for industry to deploy an EU-wide reporting tool for content that is harmful to children.

Continue Reading European Data Protection Supervisor Issues Opinion on Children’s Privacy

Twitter has announced that it will appeal a New York state judge’s ruling that the company must hand over an Occupy Wall Street protestor’s tweets to the Manhattan district attorney.  The defendant was charged with disorderly conduct for his participation in a protest march in October 1, 2011.  Following that incident, the district attorney subpoenaed Twitter for the defendant’s tweets over several months in the fall of 2011.  The defendant unsuccessfully challenged the subpoena in trial court, and Twitter is taking up the appeal.    

The trial court judge found that the Fourth Amendment did not apply to the government’s subpoena.  The defendant had no privacy interests in his tweets, the judge held, because of the public nature of the Twitter platform.  Pointing out that the “very nature and purpose of Twitter” is to share messages with a broad online audience, the judge concluded that the “defendant’s contention that he has privacy interests in his Tweets . . . [is] without merit.”Continue Reading Twitter to Appeal NY Ruling that It Must Hand over Occupy Protestor’s Tweets

Yesterday, deeming LinkedIn’s motion to dismiss suitable for decision without oral argument, Judge Koh of the U.S. District Court for the Northern District of California dismissed all eight claims in Low v. LinkedIn with prejudice, ending this litigation.  Covington successfully represented LinkedIn in this case, in which plaintiffs alleged that…

Continue Reading Low Case Against LinkedIn Dismissed In Its Entirety

By Brian Ryoo

On May 30, National Labor Relations Board (“NLRB”) Acting General Counsel Lafe E. Solomon issued his third report on employer social media issues, focusing on “overbroad” employer social media policies.  The report expresses concern about “ambiguous [policies] that contain no limiting language or context” and give employees insufficient notice of their protected rights under the National Labor Relations Act (“NLRA”).  The report describes several recent cases in which the agency found employer social media policies to be unlawful, and it appends an example of a social media policy that is lawful from the NLRB perspective. 

Section 7 of the NLRA protects certain employee rights, such as the right to self-organization, to form, join, or assist labor organizations, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.  This protection applies to employees at almost all private employers, whether they have wage or non-supervisory, salaried employees.  NLRB case law interprets the Act to prohibit any work rule that “would reasonably tend to chill employees in the exercise of their Section 7 rights”― a prohibition that it has found implicated by overbroad employer social media policies.

Solomon’s report indicates that NLRB enforcement activity has focused on circumstances in which employers had issued a blanket ban on a broad spectrum of social media activities without including limiting language or clarifying that the rules do not restrict rights protected under Section 7.  Rules that the NLRB will consider lawful “clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity.”Continue Reading NLRB Issues Updated Report on “Overbroad” Social Media Policies

A federal district court in New Jersey ruled this week that an employer might have invaded an employee’s common-law privacy rights by coercing a co-worker into giving the employer access to the employee’s Facebook profile.

The plaintiff, a nurse and paramedic employed by a non-profit hospital service corporation, alleges that her supervisor forced a co-worker who was one of the plaintiff’s Facebook friends to log into Facebook in front of the supervisor so the supervisor could see the plaintiff’s postings. The complaint alleges the supervisor viewed and copied several of the plaintiff’s posts, including a comment implying that paramedics should not have saved a man who shot and killed a guard at the United States Holocaust Memorial Museum in Washington, D.C. The complaint alleges that the employer sent letters about the post to state regulators in a “malicious” attempt to damage the plaintiff’s reputation and employment opportunities. The defendants asked the court to dismiss the plaintiff’s common law invasion of privacy claim and her claim under New Jersey’s Wiretapping and Electronic Surveillance Control Act.Continue Reading N.J. Federal Court: Privacy Claim Based on Coerced Access to Employee’s Facebook Posts May Proceed