Tag Archives: Twitter

Why A Twitter Block May Violate The First Amendment

The New York Times article covering the letter written by the Knight First Amendment Institute at Columbia University lays out a fascinating case for how the President’s blocking of Twitter users may violate the First Amendment.

The vast majority of times someone claims their First Amendment rights were violated on social media it is correctly pointed out that the First Amendment doesn’t usually apply.  Platforms like Facebook and Twitter and others aren’t subjected to the same limitations as the government–the First Amendment covers government, not private, action.  We’ve seen instances where Facebook removes posts or pictures and someone cries “First Amendment!” and someone else (maybe me) says “Nope.”  There are some interesting theories on why the First Amendment might apply to broad platforms such as Facebook.  But for now the more mainstream view is that the First Amendment doesn’t apply to platforms.

But the First Amendment does apply to government, including the President.  And as the letter spells out, the President’s decision to block certain users on Twitter could face legal challenges.  This is because blocking a user on Twitter does more than just hide that user’s tweets–it also stops that user from seeing the blocking account’s tweets or searching for them.

If blocking an account on Twitter only allowed blocker to not see the content, the analysis might be simpler.  The President can, for example, cancel his subscription to a newspaper he doesn’t like.  But blocking a user does more than that–it actually prevents that user from seeing the content in the first place.

Granted, there are workarounds.  You can create another Twitter account.  You can log out of your existing account on Twitter and just use a web browser to see public (like the President’s) posts.  But that kind of analysis doesn’t defeat the initial issue of government censorship.  If the government stops one person from speaking, does it matter that others can say the same thing?  Yes, the message gets out, but that one person has had their rights violated.

This is a novel approach to a common social media function, no doubt due to the new and often tumultuous political/social media world we live in today.  Will it force the President to unblock accounts?  Will it compel Twitter to create a new function that silences tweets without blocking the user?  Bear in mind that back in 2013, Twitter changed the block feature to allow blocked users to see posts from people who blocked them.  After public outcry, largely from people who claimed they blocked users for harassment and didn’t want their harassers to continue to see their content, Twitter quickly reversed that change.

Will this latest issue force a politician or a platform to change?  Stay tuned.


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Filed under First Amendment, Laws, Social Content, Twitter

So You Want To See A Social Media Law Final? (2016 Edition)


Cower before my mad shop skillz.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law.  Having just submitted my grades today, I’m now pleased to share with you this year’s final exam.  I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months.  Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:


Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.


ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.


Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.

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Filed under Celebrities, Commercial Activity, Consumer Protection, CopyFUD, Copyright, Email, Employment, Facebook, Fair Use, First Amendment, FTC Endorsement Guidelines, Google, Identity, Informal Tone, Instagram, Laws, Personal Live Streaming, Privacy, Social Content, Social Marketing, Social Media and the Law, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking, Terms and Conditions, Trademark, Twitter

So You Want To See A Social Media Law Final? (2015 Edition)

Readers who were smart enough not to attend law school (congrats on that!) may not realize that a law school final is serious business.  The vast majority of your classes during those three years will have you reading and discussing cases and listening to a professor for an entire semester; then you get one test and that’s your grade.  No repeats.  No making it up down the road.  One and done.  Scary stuff.

Readers of this (increasingly infrequent, sorry) blog also know that I teach a class on Social Media Law at the University of Texas School of Law.  This past year was the third time I offered the class and it’s always interesting to see the issues that have emerged from year to year or even during the year I’m teaching.  I also spend a lot of time thinking about the final, both because I want it to be interested and because I want the students to have ample opportunity to show what they’ve learned over the entire semester.

Below is the final from my 2015 class.  (Here’s the final from last year and here’s the final from 2013 if you’re curious.)  I wanted to post it now to give you some time to think about it (or discuss in the comments).  Later I’ll post what ended up being the top grade in the class’ answer (yes, I asked for and received permission to post it).

Before I get into the text of the final, let me thank the inspiration for elements of these questions: my work SMaC team for pulling social media lessons from the movie Chef, the movie Real Genius, my youngest son Isaac who thinks “Poo-poo” is the funniest word ever (he’s not wrong), and many real world examples that I tweaked for this exam.

And now, the final exam:


Fresh out of law school and after passing your Bar exam, you are quickly snapped up by a hot new company called Pop-Up Pop-Ups (PU2).  PU2 has a unique business model where they partner with other companies to create mobile marketing experiences.  In the past, PU2 has worked with a volleyball company to hold an impromptu volleyball tournament in the middle of a city block.  PU2 has also worked with fashion companies to hold flash mob style runway shows in unexpected locations such as rooftops and swimming pools.  PU2 prides itself in organizing events that shock its audience and get people talking.

PU2 picks the locations for its events by identifying certain key social media users and targeting an experience around this individual, hoping that the individual will then be the origin for a cascade of social media posts that gets the word out about the event.

The CEO of PU2, Mr. Knowslittle, lets his staff handle the social media elements of the business.  This past year he saw the movies Chef and Catfish and now thinks social media might be a risky area for him but he knows his team relies on social media to conduct their business.  He has asked you to advise him on any practical or legal risks his business might face due to social media and to put them in perspective with the potential benefits his company could receive.  Since he has never used any social media platforms but really enjoyed the movies Chef and Catfish, he would like you to use examples from these movies to help illustrate your points.

Compose an email to your CEO advising him about his company’s social media risks and potential rewards.


PU2’s latest marketing stunt involved building a giant pyramid in Times Square.  An actor wearing sun-god robes stood on the top of the pyramid while a hundred other actors stood at the base of the pyramid and threw little pickles at the sun-god.  Your CEO is unclear what this event was supposed to promote but it did receive a lot of attention on social media.

During the event, the well-known action movie star Arnold Schwarzeblecher (“Arnie” for short), was filming Total Recall 2: Totaller Recall nearby.  Seeing all the commotion, he came to Times Square and proceeded to take part in the event.  He laughed, he cried, he said it was better than Cats as he stood and threw little pickles.  Several bystanders saw Arnie participating in the event and they all took pictures and videos and posted their content to social media.

When Arnie returned to his trailer he had several urgent messages from his public relations team.  They saw all the posted content and, even worse, so did a number of entertainment websites who are now running articles that Arnie is working with PU2 to promote…whatever the pickle throwing event was supposed to promote.

Arnie’s team is demanding you pull down all content using Arnie’s image.  Your CEO, Mr. Knowslittle, has received some of these demands as well.  Not only does he want to keep the content up but he’d also like to start posting some of these pictures and videos directly from all PU2 social media accounts (“Whatever those are,” he says, because he still doesn’t really get it).

Compose an email to your CEO addressing the demands from Arnie’s public relations team as well as Mr. Knowslittle’s desire to post this content from PU2 accounts.


Your CEO, Mr. Knowslittle, has sent the head of Human Resources to speak to you about an employee matter.  The Marketing Department had extended an offer to a new Event Manager, Helen Clueless, a week ago.  Helen accepted the offer almost immediately and the team had been thrilled to bring in their newest team mate.

Some of Helen’s strengths which carried her through the interview process were her extensive social media skills and ability to build online communities.  She had built her personal brand on Twitter and had an account with over 20,000 followers at the time of her interviews.  The hiring manager, unsure of how to handle Helen’s Twitter account during the interview, was especially careful not to read the content of Helen’s tweets and ensured that everyone involved in the hiring process did the same.

After the Times Square pickle throwing, Helen tweeted out several messages that are highly critical of PU2.  Some examples include:

  • I cannot believe I’m starting a job next week with this company. #picklethrowing
  • Sure, the job pays well, but am I going to work on stupid events like this for the rest of my life? #picklethrowing #worstjobever
  • Please, Twitterverse, find me a job before I start working for these morons. #picklethrowing #willworkfortweets
  • Just wish my last gig hadn’t fired me for that drug bust. #justpot #legalizeit

The last tweet caught the attention of HR in particular and they then reviewed the content of her Twitter account.  They discovered dozens of tweets referencing drug use and other behaviors that are clear violations of your Code of Conduct.

To make matters worse, now other people are starting to reply to Helen’s tweets and including PU2, asking your company if they really hired someone who is just going to insult her employer before she even starts her job.  HR would like to know what options they have regarding Helen.

Compose an email to your head of HR and CEO advising them on what they can do about Helen and if there is anything they should change in their hiring practices to mitigate this risk in the future.


Filed under Celebrities, Commercial Activity, Consumer Protection, CopyFUD, Copyright, Email, Employment, Facebook, Fair Use, First Amendment, FTC Endorsement Guidelines, Informal Tone, Instagram, Laws, Privacy, Social Content, Social Marketing, Social Media and the Law, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking, Trademark, Twitter

YES PLeaSe: A Legal Guide To Periscope And Meerkat

meerkat-vs-periscopeFor the first time in several years we have some significant new entries to the social media application world in the form of Meerkat and Periscope.  Both of these applications allow users to quickly and easily provide Personal Live Streaming (PLS), meaning they can start shooting video and instantly sharing it on social media.  No shooting video and uploading to YouTube/Instagram/Vine, this is an ongoing live stream complete with user interaction.  In all likelihood this is a function that other platforms can provide as well, especially as our handheld technology continues to grow in processing power and our wireless bandwidth continues to grow.  But for now these are two significant players in an emerging space that come with some intriguing legal issues.

After experimenting with the two applications, including an hour-long live cast of my podcast (all about geek culture, if you’re interested you can check out the podcast on iTunes or our website) I put together this quick look at some of the high level legal concerns for brands and organizations who are thinking about getting involved with PLS.  Is it too much to say as brands develop a Go-To-Meerkat strategy?  It is?  Sorry.

Because I’m a lawyer there are, of course, three main risks to be concerned about.  And, oh, how convenient, they spell out YES so we can make a great blog post title.  Those three concerns are YouTube+/-Engagement, and Saved Streams.  Okay, I guess technically that would spell YESS but that sounds reptilian and I’m trying to avoid that easy lawyer joke.  So YES it is.

Because professional courtesy.

Because professional courtesy.

Also please know this is a highly dynamic area.  Meerkat was first to market but Twitter had already acquired Periscope and was preparing its own launch while Meerkat was getting tons of press at SXSW.  So Twitter cut off some important access to Meerkat (both apps use Twitter for crucial functions).  This kind of activity may continue for others that try to create a similar service on the backbone of an existing one, and we’re sure to see completely independent services start up that tout their protection from such antics.  But in a new field with this much attention we are bound to see significant moves in functionality and usage over the next several months, so stay tuned for additional posts on the subjects.


Personal Live Streaming is a video stream and so it carries most of the same legal concerns as any video content an organization would post on YouTube.  But the live component of PLS makes for some interesting additions and subtractions to your standard legal analysis of video content.

On the plus side, or additional analysis you should do, you will need to consider the environment in which the stream will be recorded.  Since these streams go out live you will not be able to review them for their content prior to publication.  That video your marketing team did with that catchy, unlicensed Top 40 hit?  Yeah, you can review that before it goes on YouTube so that Marvin Gaye’s estate doesn’t sue you for $7 million but you can’t review it before it streams.  So the environment and context of the video stream should be considered for any legal threats with the team putting the stream together–you won’t get a chance to fix it later.  Consider copyrights, trademarks, privacy concerns, licensing issues, and please at least briefly discuss defamation law with your on-screen talent/broadcaster.

On the minus side, or some mitigating factors that YouTube doesn’t traditionally have, these streams are not intended to be permanent.  Risky activity could be mitigated by the fact that the videos are generally only visible while they are being created (except see our third part, Saved Streams, below).  If someone on camera says “Top Hollywood Celebrity explicitly endorses Company Product!” during a live stream, hopefully the live and non-recorded nature of the film could mitigate any potential rights of publicity claims (or at least damages).  By the way, don’t invite that streambomber to your next livestreams.

Unless it's a dolphin.  Dolphins can photobomb or streambomb all they want.  It's the law.

Unless it’s a dolphin. Dolphins can photobomb or streambomb all they want. It’s the law.


Both apps provide similar ways to engage with stream watchers.  Stream watchers can like a stream or send a comment to the broadcaster and those watching.  Both apps also have no moderation abilities at this point–so if someone starts spamming your video broadcast with explicit text or spam there is nothing you can do.

One crucial way in how the apps differ on engagement is the comments.  Meerkat comments are sent via Twitter–they are sent as Twitter replies to the original tweet announcing the Meerkat broadcast.  This can be both good and bad in terms of monitoring and recording the comments and in who can see the posted comments.  Periscope comments are limited to the video stream itself, also with its own benefits and drawbacks.  One consideration organizations should make when using PLS is whether they will have an individual conduct the streams or a small team.  The single user and video shooter can be very effective and personal, but it can also be difficult to engage an audience based on personal content (a speech, a demonstration, etc.).  Having one person operating the camera (well, phone/tablet camera) while another is being filmed will help to monitor video issues and comments, or you may even want to separate the duties between people to operate the camera and another to watch the comments.  There’s no right answer, it’s just something to think through.

Unless you have one of these.  Because now you have extra fingers to use and you are awesome.

Unless you have one of these. Because now you have extra fingers to use and you are awesome.

Saved Streams

PLS is mostly about current video but both apps have some replay abilities that may bring legal risks or make you consider which application your organization may conduct its own experiments.  Meerkat streams are public and they had to issue a quick fix recently to prevent anyone from hijacking another user’s stream.  That security issue aside, Meerkat faces another legal risk in terms of recorded sessions.  Meerkat gives broadcasters the option to save the video to their phone/tablet at the end of the session but there is already a service that will allow any user participating in a Meerkat stream to send out a single hashtag that will record the stream and then post it to YouTube.

The idea that some third party can record and post your stream even if you yourself do not feels quite risky depending on the content that is being sent out.  In many ways this is no different than a user sending a photo on Snapchat that will be deleted but the recipient uses their phone’s operating system to take a screen capture of the image.  But if your organization doesn’t use Snapchat to send out photos then that may not be an analysis you’ve done.  So it’s something to consider.

Pictured: extensive legal analysis.

Pictured: extensive legal analysis.

Periscope, on the other hand, does not currently have a way for third parties to easily record your stream and post it (although there could certainly be a way to record video sent to watcher’s phones/tablets/computers).  The app will, however, allow you to upload the video to Periscope’s servers and allow other users to watch or re-watch the stream for a period after it was filmed.  That at least gives the broadcaster some control over how long the video will live but is also something that should be considered.


It’s exciting to see a new function and communities spring up in the social universe.  We haven’t had a significant new step like this since Pinterest many years ago.  Whether this remains a thriving independent community or more of a feature that everyone will enable (like checking in from a few years ago) remains to be seen.

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Filed under Copyright, Personal Live Streaming, Pinterest, Privacy, Trademark, Twitter

Three Legal Risks In The Year Of The Hashtag

And if you want to read more about Hashtag gang signs…I mean hand signs, check out http://www.briansolis.com/2011/06/hashtag-this-the-culture-of-social-media-is/

2013 is the year of the hashtag.  Forget all of those silly predictions we made for this year in social media just a few short months ago, the number one trend for the next 9 months is the total domination of the hashmark.

Hashmarks (the actual symbol #) have been used on the internet for decades although it was never quite rescued from obscurity the way email brought the @ symbol back from the brink of death.  The most common use of hashmarks prior to social media was their use in IRC, an Internet chat technology, where hashmarks were used to label chat channels people could join.

But hashmarks became popular in the social media age thanks to Twitter users.  For a platform where everyone spoke to everyone else at the same time, users needed a way to differentiate between different topics and conversations.  The proposal to use hashmarks combined with a word or phrase to create a hashtag was first proposed by Chris Messina in August, 2007 but the concept really took hold a few months later when the hashtag #sandiegofire was used for updates on the massive fires that hit San Diego in October, 2007.  After that real fire, hastags caught virtual fire and spread across Twitter.

Fast forward to 2013 and not only has Twitter integrated the hashtag into their platform (many years ago they made all hashtags automatic search terms just by clicking on them) but other platforms have integrated the same function.  Google+ launched with it, Instagram uses hashtags, so does Pinterest and several others.  The biggest holdout is rumored to be caving as Facebook is reported to be adding hashtag functionality.

A fantastic analysis of social integration in this year’s Superbowl ads shows how hashtags have caught on amongst marketers as well.  Every kind of social integration in a television commercial (showing a link to a Facebook page, showing a link to a corporate website, or even use of niche technologies like Shazam’s audio tagging) were down except for the use of hashtags which were up a whopping 31%.  Why hashtags instead of more specific links?  Probably because hashtags are about conversation topics rather than platforms–if I’m a brand and I start using a specific hashtag I might see that topic pop up on Twitter, photos posted with the topic on Instagram, related links pinned to Pinterest with the hashtag, even longer posts about the topic placed on Google+.  Hashtags are platform-neutral, although some platforms make it easier than others to discover.

Commercial incorporation of the hashtag and social conversation has been a fascinating evolution to watch.  It started with traditional “Follow us @account” messages on commercials and TV shows.  Then it became “Tweet us and we’ll show it on the air!”  Then we saw several shows try to use their name as a hashtag to promote conversations while the show was on.  The latest move is to have several hashtags appear during the show or commercial, often around key moments.  The TV show Survivor will now display hashtags like #immunitychallenge rather than a more general #survivor topic.

However, with this evolution and broader hashtag use comes a few legal risks which brands should keep in mind.

Hashtag contests can go places you don’t want to go

Back when hashtags were largely a Twitter-only function, it was possible to run social media contests by asking people to post their entry using a hashtag.  Both the brand and the entrants largely understood that meant posting on Twitter only.  But now that hashtags are supported on so many platforms, brands must be careful about using more than just hashtags to denote the proper place for entries.  Google+, for example, has hashtag functionality but does not allow contests to take place on their platform.  So be clear about entry places beyond just hashtag.

Hashtags as consent probably still don’t work

I’ve seen some promotional efforts that ask users to post a comment or picture using some unique hashtag like #UareDbest2013WhatWhatHolla!  Then the picture or content or even user avatar associated with that post will be used by the brand on a web page, as a contest entry, or even as a printed ad.  Brands need to be especially careful about treating these hashtags as consent without some other kind of communication.  First, it’s unclear if the platform you are pulling the content from will allow that under their terms.  Second, while the hashtag may be so unique that it can only originate from someone who wants to participate in your event, it’s also possible one of their friends will see it and start using it or sharing it without knowing that was supposed to carry a consent to participate.

Now might be a good time to refresh your social media team about using hashtags wisely

It’s been a while since Kenneth Cole posted some stupid tweets about #Cairo.  Or since a small boutique posted some stupid tweets about #Aurora.   Or since Quantus airlines stupidly timed a promotion around #QuantusLuxury.  Or since Entemann’s stupidly tried to create a trend around #notguilty the day the Casey Anthony verdict was rendered.  Or since British furniture retailer Habitat stupidly tried to participate in every trending topic to sell some product.  The list goes on and on.  Now that hashtags are a hot topic, it may be time to get the right people in a room to go over the right way to use hastags so your brand doesn’t end up on this list.


Filed under Commercial Activity, Facebook, Instagram, Pinterest, Social Content, Social Marketing, Social Platforms, Twitter

Can Social Media Help You Break The Law In A Country You’ve Never Visited?

The world of free speech.

Yesterday was international Data Privacy Day–if you had no idea then it succeeded. Ironically, this annual campaign to increase awareness over data privacy falls right in the middle of one of the most interesting cases to impact social media privacy and personal data in many years.

The case deals with a number of anti-Semitic tweets that were being posted in French, allegedly by French users of Twitter. Unlike the United States which is highly permissive of hate speech (so long as the speech does not incite violence or is considered fighting words, among the few exceptions), France has specific hate speech laws that provide for both civil and criminal actions against those who defame or insult people based on ethnicity, nationality, religion, race, sexual orientation, or if they are handicapped.

Although the case ends in France (for now), it actually began in Germany when a Neo-Nazi group had access to their Tweets blocked to German users of Twitter in October 2012. At the start of 2012, Twitter rolled out functionality that allowed them to block specific content to countries with laws preventing those kinds of speech. Although initially subjected to scorn for this action by free speech advocates, Twitter pointed out that prior to this feature their only option was to take down tweets globally or leave them up globally. This new feature allowed a more targeted approach but also brought greater emphasis to the national differences in free speech protection.

This new feature was used by Twitter to block the Neo-Nazi group in October.  It was almost immediately followed up by requests from French organizations against similarly anti-Semitic tweets. Twitter complied with the requests and blocked the tweets to French users.  One of the groups involved with the French blockage was not content to merely have the tweets out of circulation–they wanted to go after the individuals posting the hateful content. The French Union of Jewish Students filed suit against Twitter in France demanding the personal information for specific Twitter accounts posting the anti-Semitic content. A judge heard the group’s argument last week and issued a ruling in their favor demanding that Twitter turns over the personal information for these accounts.

Twitter is reportedly considering the court’s decision.  They are not obligated to follow the order–Twitter has no offices in France so there’s no place for authorities to show up and demand action.  Twitter does, however, have many French users and sell advertising to companies in France–so there’s always the potential for the issue to escalate and impact Twitter’s operations within France.

But the case brings up some interesting questions and social media and the differences in legal protections.  We are accustomed to thinking of social media as knowing no boundaries but laws certainly know boundaries.  Speech that is legal in your country may be illegal somewhere else.  Whose law applies?  The country you live in?  The country Twitter operates in?  The country where the person who read your content lives?

Most of my readers are from the United States where we take freedom of speech for granted.  So think of it this way–what if one of your tweets was enough to have you sentenced to death by the courts of a foreign country?  And then that country asked Twitter for all the information they had on you.

Yeah, that’s a bit scary.

And it isn’t so far from the truth.  Egypt did sentence an American citizen to death for his role in a movie critical of Islam.  Given this individual’s reputation, he probably intended the movie to be a bit controversial.  But what if it happened to someone not trying to stir things up and then the foreign country asked Twitter to hand over the information?

I’m not saying this has happened or Twitter would comply.  Twitter has said that they comply with 63% of government requests which is a good amount shy of 100%.   Google just posted a great entry about how they handle government requests.  I do not envy them the work that must go into reviewing those requests.

Still, this French request is not without precedent.  In 2011, Twitter was served with a subpoena to turn over personal information for some users in the UK.  The request was made in relation to a case against some anonymous bloggers and was made two years after the case was initially filed (the case did mention the blogging platform but not Twitter, this seemed to be more of an angle to uncover information on the anonymous blogger).  Twitter told their user of the request and that the user had a few weeks to respond but when he didn’t Twitter turned over the information.

The catch is that the case involved some local politicians in the UK against an anonymous blogger in the UK but the lawsuit was filed in California (where the blogging platform and Twitter operate).  The user could have objected to Twitter turning over the information but would have needed a lawyer in California to make the objection.  Maybe we like that rule–California has some great sushi restaurants and some decent free speech protections.  But the concept of a court action that compels your information taking place thousands of miles from your home that would incur significant expense if you wanted to defend the release of that information is a bit concerning.  Granted, here there was a case in California (defamation and libel, mostly) and California doesn’t sentence people to death over speech, but the underlying notion of a case pending against you thousands of miles from your home is a bit alarming.

Social media has given us all a global stage for speaking to the world without the realization that the entire world might actually be listening and that our speech might be a crime.  While the world celebrated Data Privacy Day yesterday (somebody did, I’m guessing) we should keep an eye on a huge exception to privacy–court cases that can trigger the release of personal information based on laws in a country you’ve never visited.




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Filed under Cyberbullying, Europe, First Amendment, Google, Laws, Privacy, Social Content, Social Platforms, Twitter, UK

My Five Bold And Totally Baseless Social Media Predictions For 2013

Look…into the FUTURE!

Not since Nostradamus first tweeted about the McRib sandwich will you find a post filled with more bold and totally baseless predictions for the future. Bold because I’m not going with the obvious (for example, an obvious prediction would be a platform will change its terms of service/privacy policy and some people will be really upset for no good reason, or a major brand will do something incredibly stupid on a social network, or I will eat some bacon) and baseless because, you know, they’re predictions.  I’ve also included a brief discussion on the legal risk that might follow such a bold and baseless prediction if it came true.  Because that’s what I do.

Facebook will announce the end of Timeline

It’s been a year since the announcement/rollover from the Wall to the Timeline. In vase you’ve forgotten, this was heralded as the worst Facebook move of all time and it was going to allow Google+ to take over. Not by me–even I’m not so bold. But a year later and your Timeline is basically a two column Wall. Some people built out some photos, added some events, but it didn’t revolutionize the way we interact with our personal information.

This is a problem for Facebook. Now that they’re public they need to make more money and the best way to do that is through advertising. Facebook also knows that the highest rates for ads are the most personalized ones–and wouldn’t the user’s Timeline be the best place to present highly relevant, micro-targeted ads? Problem is that most people spend time on their stream of news, not their Timeline. That’s why we see ads in our feeds now. But Facebook will change that.

I predict Facebook will announce a new personal gateway in Facebook in 2013 designed to be your landing page rather than your feeds. It will incorporate items posted by your friends (that’s why you’re on Facebook, after all) but also present more topical news, local information, even highlight some of your relationship activity when a friend pops up. All designed to keep you glued to the page and see the lucrative ads Facebook will display. You may be outraged and you will be swamped with petitions to bring back Timeline, but ultimately you will change over and forget about it by 2014.

Legal risk: Little given Facebook’s terms, but if they alter Timeline enough to lose life events that people want tracked without a way to export that data, there could be some nuisance lawsuits over the lost functionality.

Twitter will focus on users who don’t tweet with new notification system or content aggregation

Twitter continues to grow and there’s a huge population who send a barrage of content into the Twitterverse. But the majority of activity on Twitter is reading, not posting. And there is a sizable population that don’t post any content but just read other tweets. Some projections have that group as high as 40% of all Twitter accounts.

Given Twitter’s increasing advertising revenue and a large group that are just consuming content, it makes sense for Twitter to offer new features for these users. Not that they’ll focus exclusively on these consumers–you have to keep the content rolling in–but I expect to see a more robust notification system to replace the current minimal approach. Perhaps a merging with the Discover tab (Twitter’s first attempt at content aggregation) or an expanded effort to show users what information is trending based on who they follow or topics they’re interested in. We’ve seen growth over the years of content aggregation social platforms like paper.li and storify. Twitter has a giant amount of content–if they can figure out how to present it in expanded ways to their consuming population, we could see some huge changes in the platform next year.

Legal risk: Also little here, although I could see some groups within the Twitter consuming community that might get upset if their usage data is being sold to advertisers.  There’s no predicting who will get upset over something (well, there is–everything will upset somebody) but a group who publishes less information on a platform may have a greater expectation of privacy (realistic or not) that could result in more hurt feelings if something changes.  And hurt feelings is the first step to nasty lawsuit.

Groupon will go out of business

Groupon famously brushed off a $6 billion buyout offer from Google just two years ago. At the time, prospects seemed high and one year later Groupon went public and saw its shares rise over 30% the first day.

And when was the last time you bought one?

A flood of copycats combined with all the interesting deals getting used up that first year has turned social coupons from cool to exhausting. Add more focus on regulations and a mix of class actions and I think Groupon is one large mistake from disappearing.

I predict that mistake will happen in April when they mistakenly publish a deal to a large retailer who didn’t approve the offer leading to so many refunds, complaints, and lawsuits that they’ll shut down for good.

Legal risk: Groupon has been the single throat to choke when their deals go wrong thanks to a local business going under or a deal getting fouled up.  If Groupon goes under leaving no way for the local businesses to redeem the offers I could see a slew of extra lawsuits over the leftover Groupon crumbs.

Foursquare will enter the mobile payment business

Foursquare has connected with American Express and local businesses to offer promotions when you check into a business and make a purchase. With enough experience under its belt, Foursquare will start providing its own mobile payment service. Probably in partnership with another provider because payment tech is a lot of work.

This will open up a number of interesting offers beyond the convenience. Imagine checking into a local store, paying from your smartphone screen, then being offered the chance to post about your purchase for 50 cents off the total. Or a special 10% coupon broadcast to all your friends within a few miles of the store.

Legal risk: Thinning the line between purchasing and marketing/endorsing a product/store can be dangerous.  While such seamless activity could provide some unique revenue streams, it could also create some legal risks if a security setting goes amiss or offers are sent out without consent.

Google will buy Pinterest

Google has done some great things with Google+.  The problem is that not enough people know about it.  The +1 button has great metrics–the rest, not so much.  And while the site design is clean and modern, the content is a bit stale outside of tech and social media topics. Pinterest, on the other hand, has engaging content but not great ways to interact with it.  And it attracts a demographic that Google+ probably doesn’t have a lot of.  All good ingredients for an acquisition.

Google would gain the references that Pinterest famously produces, not to mention the content that could feed into search results.  Pinterest could also break through into a major network as opposed to a site for wedding dresses, craft ideas, and recipes.

Legal risk: Pinterest has a number of copyright concerns and if it expands more than those issues could be brought to the forefront.  Google is best equipped to address those concerns, however, but the resulting lawsuits could be large and expensive.


So those are my predictions for 2013.  Another prediction: None of these five will actually happen in 2013.

What’s your bold and baseless prediction for social media in 2013?


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