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Hiding in Plain Sight

December 30, 2011 – There is an important distinction in media law between "public figures" and ordinary private citizens. Public figures face much higher hurdles in bringing defamation and invasion of privacy claims than private citizens. For example, in defamation cases, public figures need to prove that the defendant made a statement about them with "actual malice" – i.e., with knowledge that the statement was false or reckless disregard as to its truth or falsity. Private figures only need to prove that the defendant was negligent, a much easier standard to meet.

One rationale for this legal distinction is that by "voluntarily thrusting themselves into the public eye" (a familiar phrase that appears in various forms in many court decisions), public figures such as celebrities and politicians have made a conscious decision to seek publicity, and should not be too surprised to find the media taking pot-shots at them. Ordinary citizens, on the other hand, who have made an effort keep their lives private, are not fair game, and should have an easier time bringing an action for false or invasive statements about them.

Social media, however, are rapidly making this distinction obsolete. When a "private citizen" creates a public Facebook profile, and constantly posts details of his or her day-to-day life, has that person "voluntarily thrust" him- or herself into the public eye? In an analogous situation, courts have held that participants in reality TV shows should be treated as public figures in media litigation (for a good discussion of this topic, see D. Green, "Almost Famous: Reality Television Participants as Limited-Purpose Public Figures," 6 Vanderbilt Journal of Education and Technology Law (2004)). Is Facebook essentially a continuous, real-time, digital reality show for media law purposes?

Courts are beginning to grapple with this issue. In Fraley v. Facebook Inc., the plaintiffs are suing over the practice of "sponsored stories." Facebook – which seems determined to develop new applications that are certain to trigger lawsuits – launched the "sponsored stories" feature in January 2011. Essentially, sponsored stories appear on a Facebook member's profile page, and typically consist of the name and profile picture of a "friend" of the member (possibly a former friend after the sponsored story appears!), and an assertion that the friend "likes" a particular advertiser. These stories are typically generated when the friend clicks the "like" button on a company's Facebook page.

The plaintiffs claim that the sponsored story program violates California privacy law. In response, Facebook's motion to dismiss argues among other things that Facebook users are public figures – at least with respect to their Facebook friends – and therefore their "likes" and "dislikes" are public information. On December 16, 2011, the federal court in California denied Facebook's motion to dismiss and allowed the case to proceed. A copy of the court's ruling can be found here: http://www.scribd.com/doc/75987198/Fraley-v-Facebook-Ruling-on-Motion-to-Dismiss

If the law evolves in such a way as to allow social networking activity to become a factor in the public/private figure determination, this is not such a bad thing for E&O insurers. Claims attorneys have known for years that the determination of whether the plaintiff is a public figure is often the critical moment in media litigation. If the plaintiff is found to be a public figure, the media defendant has a very good chance of winning the case. If not, it is time to start settlement discussions. You can be sure that good media claims attorneys have begun to scour plaintiffs' social media accounts looking for any information that will help tilt the balance in favor of public figure status.