On July 29, 2019, the Court of Justice of the European Union (“CJEU”) handed down its judgment in the Fashion ID case (Case C-40/17).   The CJEU found that when a website operator embeds Facebook’s “Like” button on its website, Facebook and the website operator become joint controllers. The case clarifies the relationship between website operators

Last Friday, the National Labor Relations Board (“NLRB”) ruled that two employees of a sports bar and restaurant were unlawfully discharged for their participation in a Facebook discussion criticizing their employer.  In the Facebook discussion that prompted the firings, a former employee complained in a status update that she owed more taxes than expected because of withholding mistakes by the employer.  The employee commented on the status, “I owe too.  Such an asshole,” and was discharged.  A second employee, who “liked” the former employee’s status, was discharged as well.

Section 7 of the National Labor Relations Act provides, in relevant part, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”  At issue in this case was not whether the employees’ Facebook activity was “concerted” or whether the employees had a statutorily protected right to engage in a Facebook discussion about the employer’s tax-withholding practices.  Rather, the case centered on whether, as a result of their actions on Facebook, the two employees adopted the allegedly defamatory and disparaging statements contained in the former employee’s Facebook status and therefore lost the protection of the Act.
Continue Reading NLRB Finds Employee’s Facebook “Like” and Comment Protected By Labor Law

A New Jersey federal court recently held that an employee’s Facebook wall posts were protected by the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., in one of the first cases to analyze the SCA’s application to the Facebook wall.  Ehling v. Monmouth-Ocean Hospital Service Corp.., No. 2:11-cv-3305 (WMJ) (D.N.J. Aug. 20, 2013).  An important factor in the court’s ruling was the fact that the employee had configured her privacy settings to restrict her posts to her Facebook “friends.”

The court found that the employer had not violated the SCA by viewing the employee’s wall, however, because a co-worker, who was one of her Facebook friends, showed the post to their employer without any prior prompting by the employer.  

This ruling provides further reason for employers to avoid unauthorized access to an employee’s social media activities.  The court’s holding is consistent with the passage by 11 states of laws prohibiting employers from demanding social media passwords from employees.  But employers that learn of social media activity by employees through passive means may still be able to take action based on that information.


Continue Reading Federal Court Finds Stored Communications Act Applies to Facebook Wall Posts

Last week, Judge Ware of the Northern District of California denied a motion to amend his November 2011 dismissal, with prejudice, in In re Facebook Privacy Litigation, a case in which plaintiffs had argued that Facebook improperly transmitted users’ personal information, including User ID numbers or usernames, to third party advertisers.

In his most recent Order, Judge Ware reaffirmed his prior holding that plaintiffs had not stated a claim under the Stored Communications Act (“SCA”) based on an exception to the statute that allows a service provider to divulge the contents of a communication to, or with the lawful consent of, “an addressee or intended recipient” of the communication.


Continue Reading Court Won’t Undo Dismissal of in re Facebook Privacy Litigation

Last week, the FTC announced that it has agreed to end its 18-month investigation of Facebook’s privacy practices, with a settlement that involved a twenty-year compliance plan and specific steps to formalize privacy within Facebook’s organization.  Though the proposed settlement, which will now be open for public comment, has met with a range of reactions, what we’re hearing most are questions about what the development means for the rest of the industry.

In its investigation, the FTC focused on a number of privacy practices that it claimed were misleading.  For example, the agency looked at changes that Facebook made to its privacy practices in 2009 that the FTC alleged led to changes in the privacy status of certain information.  The FTC also argued that Facebook hadn’t done enough to explain to users when their information might be shared with apps by their friends and how Facebook handled deletion of information.

In settling these charges, Facebook didn’t agree to these allegations or admit that it violated the law.  Instead, the company explained in a blog post that it signed the agreement to formalize its “commitment to do the things we’ve always tried to do and planned to keep doing — giving you tools to control who can see your information and then making sure only those people you intend can see it.”  Facebook also said that it agreed to “embrace [the FTC’s] ideas” about how it could enhance its internal privacy practices.

So what lessons can you take from the Facebook agreement if you’re not Facebook and aren’t directly obligated to comply with its terms?


Continue Reading Facebook’s FTC Agreement: What Does It Mean For Me?