Facebook, My Space and Pre-Sentencing Reports

From Law.com, a very thorough survey of the emerging importance of defendants' social media postings in sentencing dispositions by U.S. criminal courts:

Embarrassing Facebook photos and regrettable MySpace statements are starting to become commonplace in pre-sentencing reports and disposition hearings. At the same time, defendants and their advocates are acknowledging the power of social media as a tool to generate mitigating evidence.

...How deeply must defense attorneys delve into social media in representing their clients at sentencing? The U.S. Supreme Court in Townsend v. Burke, 334 U.S. 736, 741 (1948), cautioned that defendants ought to be guarded from punishments based on false or misleading information. It would seem that this injunction compels counsel to challenge sentencing information drawn from the social centers of cyberspace.

Due process must temper the unchecked use of aggravating social media evidence at sentencing, as well as arraignment and other proceedings. At the same time, these online forums are opening unprecedented opportunities for developing mitigating evidence that can provide courts with a fair picture of the person appearing for sentence.

Read the article by Ken Strutin, director of legal information services at the New York State Defenders Association: The Role of Social Media in Sentencing Advocacy.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Neilson: Facebook Is Social Media Leader

Lawyers looking for the optimal point of entry into Web 2.0, take note.  Neilson reports Facebook still holds the web's social networking crown.  But Twitter is growing quickly:

According to Nielsen’s research, Facebook is still top dog when it comes to social networking, amassing approximately 13.9 billion user minutes in April, which is year-on-year growth of 699 percent when gauged against the 1.7 billion it gathered during April of 2008.

My Space sits in second position on the popularity scale, although the News Corp-owned service has seen its appeal eroded significantly in the last 12 months. In April of 2009, total user minutes logged on MySpace fell to 4.9 billion, which equates to a sizable drop of 31 percent against April 2008’s 7.3 billion minutes.

...Sitting in fifth place on Nielsen’s results, user minutes attributed to Twitter during April 2009 hit 300 million, which is a miniscule figure compared to Facebook. However, the service’s year-on-year improvement hit a staggering 3,712 percent when viewed next to the lowly 7.8 million minutes it logged in April of 2008.

...Blogger emerged as April’s leading blog-based platform, sitting in third behind Facebook and MySpace with 30 percent growth and 583 million total monthly minutes, while Tagged.com secured fourth with an impressive 998 percent growth and 328 million minutes.

The remaining players on the top ten list are MyYearbook (269 million minutes), LiveJournal (204 million), LinkedIn (202 million), SlashKey (188 million), and Gaia Online (144 million).

See Tech Herald's Nielsen: Twitter surges, MySpace plummets, Facebook still dominant: 

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Facebook, Disclosure, Leduc and Ontario Employment Law

Management lawyer Michael Fitzgibbon picks up on our March 4 discussion of the Leduc case, in which an Ontario personal injury Plaintiff was essentially ordered to make full disclosure to the defence of the contents of his private, friends-only Facebook pages.

Mr. Fitzgibbon contends the case has enormous implications for employment law litigation:

This is a very important case for those who practice in the area of employment law.

For example, an employee is terminated, sues and claims damages for wrongful dismissal.  Mitigation is always an issue in these cases.  If the former employee maintains a Facebook account or participates in other social-networking sits (MySpace or the increasingly popular Twitter) the contents of those sites may be highly relevant to that issue.  

There are enumerable examples but defence counsel should not overlook this important source of information on discovery and through the litigation and investigation, and plaintiff counsel will be well advised to consider this case when advising their client and preparing their Affidavit of Documents.

While Mr. Fitzgibbon may have taken a small leap of faith in his suggestion that Facebook postings are likely to be generally relevant on the specific issue of mitigation, his ultimate conclusion is sound.

Online postings at social media sites are now fair game for disclosure in Ontario civil litigation.

- Garry J. Wise, Toronto

Update - March 24, 2009:  Law.com also covers Leduc today - see: Electronic Discovery and Facebook

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

MySpace Ruling: Intentional Violation of a Website's Terms of Service is a Federal Crime

One of the many perversities to arise from today's misdemeanour conviction of Lori Drew in the so-called "My Space Suicide Trial" is summed up by Orin Kerr at Volokh:

The government's theory in the Lori Drew case is that it is a federal crime to intentionally violate the Terms of Service on a website, and that it becomes a more serious crime — a felony rather than a misdemeanor — if the Terms of Service are violated to further a criminal or tortious act. The tortious act the government alleged is intentional infliction of emotional distress, which in this case was alleged to have led to Meier's suicide.

The jury agreed that it is a federal crime to intentionally violate the Terms of Service on a website, and that Drew directly or indirectly did so, but it acquitted Drew of having violated Terms of Service in furtherance of the tortious act. That is, the jury ruled that Drew is guilty of relatively lower-level crimes for violating MySpacs Terms of Service (for being involved in the setting up of a fake MySpace account). It acquitted Drew for any role in inflicting distress on Meier or for anything related to Meier's suicide... (emphashis added)

A federal crime to violate the Terms of Service of a private website?

If this surprising ruling stands (it will be appealed, of course), each website's Terms of Service will effectively be elevated to a status of virtual equivalency with Criminal Code legislation.

Thus, noms de plume online may hereinafter land you in the slammer if used on websites such as MySpace that publish service terms requiring that an actual name be provided.

By extension, how about time behind bars for those who "finesse" their ages or weight on online dating sites?

Talk about slippery slopes.

Law.com also pipes in on the decision:

Drew was not directly charged with causing Megan's death. Instead, prosecutors indicted her under the federal Computer Fraud and Abuse Act, which in the past has been used in hacking and trademark theft cases.

Among other things, Drew was charged with conspiring to violate the fine print in MySpace's terms-of-service agreement, which prohibits the use of phony names and harassment of other MySpace members.

"This was a very aggressive, if not misguided, theory," said Matt Levine, a New York-based defense attorney and former federal prosecutor. "Unfortunately, there's not a law that covers every bad thing in the world. It's a bad idea to use laws that have very different purpose."

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

MySpace Subpoenaed in Grand Jury Investigation

The New York Times reports that social networking site MySpace has been subpoenaed in a Federal Grand Jury investigation into whether the conduct of a mother who sent allegedly harassing messages to a 13 year old Missouri girl while posing as a teenage boy constitutes fraud.

The case attracted international attention after the recipient of the harassing messages, Megan Meier, committed suicide. The last MySpace message sent to her before Meier hanged herself was “The world would be a better place without you”.

In Missouri, the case against the mother who was sending messages through MySpace was dropped, “ because current state statutes on harassment did not address Internet communication.”

Vnunet.com reports:

Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation who specialises in privacy and free speech issues, suggested that the potential of this case to set legal precedent criminalising online speech is worrying.

"The right to speak freely online is hugely important. Whistle-blowers create pseudonyms," he said.

"So do many people who anonymously report on corporate or government bad practices."

Social networking sites are becoming increasingly central to many legal battlegrounds. In addition to our continuing posts concerning freedom of expression, this case will be an interesting one to follow.

We will continue to keep you posted on developments in this area.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE