Facebook Not Required to Remove Negative Posts about Celebrity Country Artist

facebook suit

If it is True and a Matter of Public Interest, Facebook Does not have to Remove the Post

JASON CROSS et al., Plaintiffs and Appellants, v. FACEBOOK, INC.,

Plaintiffs are Jason Cross, also known as Mikel Knight, a country rap artist, and two entities affiliated with him. Defendant is Facebook, Inc. (Facebook). The dispute arises out of a Facebook page called ―Families Against Mikel Knight,‖ which page, plaintiffs claimed, incited violence and generated death threats against Knight and his team. Plaintiffs sought to have the page removed, Facebook refused, and plaintiffs sued, in a complaint that alleged six causes of action. Facebook filed a special motion to dismiss all six causes of action, arguing that they arose from protected activity and that plaintiffs could not show a probability of prevailing on any of them. The trial court held that the complaint was based on protected activity, that plaintiffs could not prevail on the first three causes of action, and granted the anti-SLAPP motion as to them. The trial court denied the motion as to the three other causes of action—claims alleging statutory and common law claims for violation of Knight‘s right of publicity, along with a derivative unfair competition law (UCL) claim—concluding that Knight had shown a probability of prevailing on them.

In order to promote his work, Knight’s marketing efforts included hiring of independent contractors who would travel throughout the country in vans that featured Knight‘s name and logo, promoting his music and merchandise. On June 9 and 16, 2014, two vans were involved in separate accidents when the drivers fell asleep at the wheel. The accidents had tragic consequences, including two deaths and one serious injury. Shortly after the accidents, a publicly available Facebook page called ―Families Against Mikel Knight‖ was created, apparently by a person (or persons) related to the victims. As to plaintiffs‘ version of what followed, their brief describes it this way: ―numerous commenters began posting statements inciting violence and death threats against Knight and members of his record labels . . . . Because of these comments, numerous members of Mr. Knight‘s promotion team were verbally threatened and physically assaulted. [¶] In addition to these threats and assaults, the unauthorized Facebook page also severely impacted Knight and 1203 Entertainment‘s business deals. In 2014 and 2015, Knight was in negotiations with numerous companies to sign lucrative deals involving his music. But once representatives from these companies, which included Nielsen SoundScan and the Dallas Cowboys football team, reviewed the content of the unauthorized Facebook pages, they backed out of these negotiations.‖ Sometime in late 2014, Knight informed Facebook of the comments and threats. And on June 5, 2015, Knight‘s attorney sent a letter to Facebook demanding that it remove the pages. Facebook refused. A lawsuit followed which alleged six causes of action, styled as follows: (1) breach of written contract; (2) negligent misrepresentation; (3) negligent interference with prospective economic relations; (4) breach of Civil Code section 3344; (5) violation of common law right of publicity; and (6) unlawful and unfair business practices, Business and Professions Code section 17200 (the UCL claim).

Facebook filed a demurrer, and a special motion to strike (anti-SLAPP motion). The anti-SLAPP motion contended that the complaint arose from the exercise of the constitutional right of free speech in connection with an issue of public interest, and that plaintiffs could not show a probability of success for two reasons: (1) the claims were barred by the Communications Decency Act; and (2) even if not, the claims were not viable under California law.

Finding that the lawsuit involved an issue of Pubic Interest and that the Plaintiff failed to demonstrate a likelihood of prevailing on the merits of their claims, the Appellate Court affirmed in part and reversed in part and remanded the case to the trial court with instructions to (1) enter an order granting the anti-SLAPP motion in its entirety and striking the complaint, and (2) hold a hearing, following further briefing, to award Facebook the attorney fees to which it is entitled under section 425.16.

Eric Papp, Esq. 

Visit: www.ca-nvlaw.com



Private Facebook information Remains “Private” – So Far

Quiet Court in Session“Private” Facebook Posts are “Private” 

FACEBOOK, INC., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; LANCE TOUCHSTONE, Real Party in Interest – (9/26/17)

Here, in Facebook v. Touchstone, a subpoena seeking to obtain “private” Facebook information is at stake. In this regard, real party in interest Lance Touchstone is awaiting trial in respondent San Diego County Superior Court (the trial court) on a charge of attempting to murder Jeffrey R. (the victim). (Pen. Code, §§ 664/187, subd. (a).) After the shooting incident, the victim has been active on his personal Facebook, Inc., (Facebook) account. He posted updates of his physical recovery from the hospital, requesting private messages over the Facebook messaging system. On the public portion of his Facebook page that is visible to all Facebook users, the victim posted updates of court hearings in this case, asking his friends to attend the preliminary hearing. In public posts the victim also discussed his personal use of guns and drugs, and described his desire to rob and kill people.

Believing nonpublic content of the victim’s Facebook account might provide exculpatory evidence helpful in preparing for trial, Touchstone served petitioner Facebook with a subpoena for the subscriber records and contents of the victim’s Facebook account, including timeline posts, messages, phone calls, photos, videos, location information and user-input information from account inception to the present date. Facebook filed a motion to quash the subpoena on the ground the Stored Communications Act (SCA) (18 U.S.C.2 § 2701 et seq.) prohibited disclosure of the victim’s account contents. In an accompanying declaration, counsel for Facebook stated that Touchstone could obtain the requested contents directly from the victim or by working with the prosecutor to obtain a search warrant based on probable cause. Touchstone opposed the motion on the grounds he had a plausible justification for requesting the contents of the victim’s account, he should be allowed to obtain the contents because law enforcement could do so by a search warrant, his constitutional right to a fair trial trumped the SCA, and he could not obtain the contents from other sources because the victim was uncooperative and the prosecutor had not obtained a search warrant. At oral argument, defense counsel represented that the prosecution refused to issue a search warrant for the material and that she has been unable to locate the victim to serve him with a subpoena. The trial court denied the motion to quash and ordered Facebook to produce the contents of the victim’s account for in camera inspection by a certain date.

In the end, the Court held, “The SCA expressly prohibits electronic communication service providers from “knowingly divulg[ing] to any person or entity the contents of a communication.” (§ 2702(a)(1).) This statutory prohibition is subject to limited exceptions, none of which apply. (§ 2702(b)(1)-(8).) As we have discussed, Touchstone’s constitutional challenges to the SCA lack merit. Accordingly, the supremacy clause (U.S. Const., art. VI) prohibits enforcement of the trial court’s order because “California’s discovery laws cannot be enforced in a way that compels [a provider] to make disclosures violating the [SCA].” (Negro v. Superior Court, supra, 230 Cal.App.4th at pp. 888-889.).”

Until the California Supreme Court finally decides the matter in Facebook1, which is pending before the High Court, Facebook “private” information will remain private.

Eric Papp, Esq.

Visit: www.ca-nvlaw.com