Monday, January 16, 2012

Everybody's Public to Somebody?: Social Media and the Public/Private Divide

"Everybody's Public to Somebody?: Social Media and the Public/Private Divide

Posted January 12th, 2012 by John Sharkey
in California Defamation Legal Threat Privacy Right of Publicity Social Media

First Amendment doctrine is sort of obsessed with the idea of a public/private divide – the idea that we can clearly slice society up into those things that are "public" (about which we want robust discussion, so we protect that discussion with the Bill of Rights) and those that are "private" (less societally important, so less protected). It's always been a line difficult to enforce in practice – at what point is something, or someone, "public"? – but it at least makes a certain conceptual sense.

But (at the risk of turning this into a hackneyed "social media changes everything!" post), social media (maybe) changes (at least some) things. As we take more and more information that the law would traditionally see as "private," and begin publishing it online, the public/private divide is only going to get blurrier.

I'm thinking of Fraley v. Facebook, one of the pending class-actions against our favorite blue friend. A few weeks back, the federal district court denied Facebook's motion to dismiss (full CMLP threat entry here, .pdf of the order here), and there's all kinds of interesting stuff going on (including some chin-stroke-worthy Section 230 stuff, but the Rule 12 stage is too early to say anything on that score). I'd recommend giving the threat entry a skim, but to briefly knock out the need-to-know for my purposes:

The lawsuit surrounds Facebook's introduction of a "Sponsored Stories" ad system, through which Liking companies on Facebook can appear as advertisements to your friends. (The Like shows up as it normally would in your timeline, and also appears verbatim in the right-hand-side ad bar under a "sponsored stories" header.) The plaintiffs are alleging a violation of California's commercial misappropriation statute, which protects against companies using your identity for commercial gain without your consent. Facebook, as you'd expect, has plenty of defenses lined up, but the one I'm interested in here is the "newsworthiness" defense.

The California statute has an exception for "newsworthy" content, which makes sense – news organizations are businesses, so any time they report on someone famous they're doing it for "commercial gain" (i.e. more readership and more money). At this point, for our purposes the statute more or less falls away: as the court says, the "newsworthiness" exemption exists for First Amendment reasons (i.e. the statute would be unconstitutional without it) and it "tracks the constitutional right to freedom of speech[.]"

Facebook raised two arguments as to why the newsworthiness exemption applied to the Sponsored Stories, and it's these, especially the first, that I want to think about here: 1) that Facebook users "are 'public figures' to their friends," and 2) that any "expressions of consumer opinion" are newsworthy in and of themselves. Roll that phrase over in your head for a second: "public figures to your friends." Even granting the ambiguity ("Facebook friends" vs. "actual friends"), the oxymoron-ish-ness of being public to my select group of friends is enough to send me spiraling into an existential crisis. If something is only public to some people, and not to others, what does "public" even mean any more?

The Fraley court (understandably) dodges the chance to call 40 years of public/private First Amendment doctrine into question. (Instead, the court falls back on 9th Circuit precedent saying that using people's identities purely for advertising purposes doesn't qualify for the exemption – also interesting, but that takes us on a detour into the land of Commercial Speech, and I'd prefer to avoid that road for now.) But that seems to be the implication of Facebook's argument: within the walls of Facebook, nothing you do is private.

And in a certain light, it sort of makes sense. Let's take defamation law, since that's the 900-pound gorilla whenever you're talking public/private stuff: your basic Sullivan tells you that public figures can only win defamation cases if they show "actual malice," not just negligence. So, play it out: Say you and I are friends on Facebook. I post something about you, and you know it's false. You feel defamed. You sue me. But if you're a "public figure" in the Facebook world, and that's where my post is seen (let's pretend it doesn't leak out into the real world), then you'd have to show that I posted about you with actual malice. (This hypothetical gets complicated quickly: Are you a public figure to your Facebook friends? Mine? The ones we have in common? For simplicity's sake, we'll say: To anyone who sees the post on Facebook.)

One of the classic justifications for "public figure" status, making it harder for famous people to win defamation cases, is that putting up with false statements about you is part of the deal. When you put yourself into the public light, you have to put up with the consequences – among them, people saying false stuff about you. Sometimes, you'll see people make the related claim that famous people can more readily fight falsehood by accessing mass media (e.g. it's easier for Jay-Z to disseminate his side of the story than it is for you and me (unless you are in fact Young Hov, in which case, thanks for reading; big fan))."

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