In January of this year, I wrote an article for Mashable called "5 Predictions for Social Media Law in 2012." As the year comes to a close, I'm happy to report that all five came true. Let's take a look:
1. Facebook Litigation Brings New Attention to the Right of Publicity. A year ago, a federal judge in California had just refused to dismiss Fraley v. Facebook, a class action lawsuit alleging that "Sponsored Stories" infringed users' publicity rights. Sponsored Stories are computer-generated banner ads that tell Facebook users what their friends are liking and doing. The case continued to make a splash in 2012, with the same court (but different judge) first rejecting, and only recently approving, a proposed settlement that will see Facebook pay $20 million.
As predicted, the issue has drawn a wealth of attention this year. "Social Media and the Right of Publicity" was a featured story in the most recent issue of Landslide magazine, and its publisher, the ABA IP Section, recently held a teleconference on the subject. Law firms have been jumping on the bandwagon to issue alerts on the subject, and I have a law review article on it that will soon be published by the Syracuse Law Review. And under the Fraley deal as approved, that money will go directly to Facebook users. So you can bet the case--and the topic--will continue to draw attention well into 2013.
2. Better Guidance on “Concerted Activity.” One of the hottest areas of social media litigation has been--and continued this year to be--the right of employees to critically discuss their workplaces online. As expected, we saw continued development of this topic over the course of the past year, with multiple decisions coming from the National Labor Relations Board itself (as opposed to its administrative law judges.) We also got new guidance from the NLRB's Acting General Counsel, and saw Wal-Mart held up as an example of the One Social Media Policy to Rule Them All.
3. Standardized Privacy Rules. With all the legal uncertainty regarding the privacy rules that apply online, I predicted that we'd begin to see "some order emerging from the chaos." We still have a long way to go in this field, but 2012 did see some progress in the direction of predictability and uniformity. In March, for example, Google consolidated its 60 existing privacy policies into one. But more interesting is the rise of private entrepreneurs offering a variety of services to fill the void left by privacy laws. PrivacyFix inserts a "healthbar" into your browser that measures the privacy levels of each website you visit in easy-to-grasp colored displays. SetMyPrivacy offers a similar dashboard widget to allow easy adjustment of privacy settings.
4. More Use of Social Media Evidence in Courts. This one's easy. Search any database of reported court decisions for "Facebook" or "social media" and you'll find an increasingly diverse range of cases in which social media evidence played an important role. Perhaps surprisingly, one of the most reliable sources of online evidence continues to be MySpace, which prosecutors continue to mine for pictures of gang activity. But social media evidence has found its way into IP, advertising, employment, securities regulation, education, commercial, family, sports, disability, tax, and immigration cases, just to name a few.
5. No Brightlines to Govern Students’ Use of Social Media. High school students being who they are, the intersection between First Amendment rights and school discipline online will always be a hot topic in social media litigation. But I predicted that the Supreme Court would be in no hurry to decide the issue. And just days later, the Court did indeed turn down an appeal from the then-most closely watched student social media case. There hasn't been any indication since that the Court is eager to get involved.
So hey. look at that: 5 for 5 on my predictions for the year. On this day when thousands of people worldwide are waking up disappointed because the world didn't end along with the Mayan calendar, it's good to know that at least some predictions do come true.
