Category: Tort Law

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Cardozo and Posner on Contracts and Torts

Several recent inquiries (for example, here and here) investigate aspects of judicial decision making, including empirical studies of influence, reputation and productivity.

Posner picture.jpgA decade ago, I wrote an article inquiring into the comparative contributions to Contract law of Judges Cardozo and Posner. This was inspired by the former’s dominance of Contracts casebooks and the latter’s ascendency. Ranking judges by the frequency with which their opinions were reproduced in Contracts casebooks, Cardozo was firmly number one, followed by Traynor, with Posner a close third, beating out Hand, Holmes, Swan, Peters and other luminaries.

This affirmed Judge Posner’s enormous influence. It also suggested a small bit of formal evidence of a shift from legal analysis characterized by thickly textured doctrinalism to one consciously focused on instrumental and pragmatic method (although Cardozo showed hints of a proto-pragmatist). Notably, Cardozo’s and Posner’s reproduction frequency shared a couple of similarities. Each had an aggregate of 13 opinions reproduced in the casebooks and 6 of each of these had appeared in just 1 casebook apiece. On the other hand, Cardozo had 2 opinions that were clearly canonical, being reproduced in nearly every casebook, while Posner’s most frequently reproduced opinion appeared in only 2/3 of the books.

This summer, I’m beginning a like inquiry on comparative judicial contributions to Torts. Some similarities and some differences from the Contracts study appear in the preliminary data (being ably developed by my research assistants, Matt Albanese, Dana Parsons and Paul Stepnowsky).

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Crimtorts at Widener Law

Chris Robinette passes along this nice website, highlighting Widener Law School’s recent Crimtorts symposium. With guests including Thomas H. Koenig (Northeastern-Anthropology), Michael L. Rustad (Suffolk), Kenneth W. Simons (Boston), Martha Chamallas (Ohio State), Jeffrey O’Connell (Virginia), Byron G. Stier (Southwestern), Frank J. Vandall (Emory), Mark Geistfeld (NYU), Keith N. Hylton (Boston), Anthony J. Sebok (Cardozo), and Catherine M. Sharkey (NYU), it looks like they put together a great event. If you are interested in this area of merging law, and missed it, check out the videos here.

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Does the Roomates.com Case Affect CDA § 230 Immunity for JuicyCampus?

Roommates2.jpgThe U.S. Court of Appeals for the Ninth Circuit (en banc) has just issued a very interesting opinion interpreting a federal law providing immunity from liability for online speech — the Communications Decency Act (CDA), 47 U.S.C. § 230. The case is Fair Housing Council v. Roommates.com, LLC, 2008 WL 879293 (9th Cir. April 3, 2008) (en banc).

The CDA § 230 states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Most courts have interpreted § 230 to immunize the operators of websites or blogs against distributor liability for comments posted by others.

I have been critical about the way that this statute has been interpreted:

Unfortunately, courts are interpreting Section 230 so broadly as to provide too much immunity, eliminating the incentive to foster a balance between speech and privacy. The way courts are using Section 230 exalts free speech to the detriment of privacy and reputation. As a result, a host of websites have arisen that encourage others to post gossip and rumors as well as to engage in online shaming. These websites thrive under Section 230’s broad immunity.

juicycampus3.jpgWebsites such as JuicyCampus, which encourage and facilitate gossip and rumors about college students, exploit § 230 immunity.

The Roommates.com case suggests a limit to § 230 immunity that some might believe creates a way to hold sites like JuicyCamus.com responsible for the gossip and rumors they solicit. In the end, I don’t believe that Roommates.com will save the day and penetrate § 230’s armor for sites like JuicyCampus.

Roommates.com allows users to post listings for roommates. When a user creates a listing, Roomates.com requests particular information from users, requesting preferences for gender, sexual orientation, and kids. Much of this information is solicited via drop down menus which list the various choices. Users can also put additional comments in a section that allows for an open-ended narrative. Two Fair Housing Councils in California sued Roommates contending that the site violated the Fair Housing Act (FHA), 42 U.S.C. § 3601 and state housing discrimination statutes. The FHA prohibits any “statement . . . with respect to the sale or rental of a dwelling that indicates . . . an intention to make [a] preferenc,e limitation, or discrimination” based on certain categories (such as gender or sexual orientation). California law has a related restriction.

Roommates.com contended that it was immune under the CDA § 230. It claimed that it just provided options for its users and is not the “information content provider.” But the Ninth Circuit concluded that § 230 immunity didn’t apply. According to the statute, an “information content provider” is one who is “responsible, in whole or in part, for the creation or development of” the content. Writing for the court, Chief Judge Kozinski noted:

The FHA makes it unlawful to ask certain discriminatory questions for a very good reason: Unlawful questions solicit (a.k.a. “develop”) unlawful answers. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business. This is no different from a real estate broker in real life saying, “Tell me whether you’re Jewish or you can find yourself another broker.” When a business enterprise extracts such information from potential customers as a condition of accepting them as clients, it is no stretch to say that the enterprise is responsible, at least in part, for developing that information.

The court also held that Roommates.com was not immune for its search system, which allowed users to search according to discriminatory criteria:

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Seinfeld, Language, and Law

Years ago law prof Jedediah Purdy warned us of Seinfeld’s charms. Here’s a reviewer’s account:

The ironic man, whom Mr. Purdy personifies as the sitcom character Jerry Seinfeld . . . is an outright menace. With his ”style of speech and behavior that avoids all appearance of naivete — of naive devotion, belief, or hope,” the individual armored in the irony . . . has withdrawn from the political arena just when it needs him most.

But he’s certainly outfront with lawsuit PR. Now courts may have to wrestle with the polysemic potential of his irony (and humor generally).

Seinfeld was on Letterman last year, and his comments on the woman now suing his wife for plagiarism were not exactly conciliatory. Now he’s being sued for defamation. Here’s the video, which gets interesting 40 seconds in:

Jonathan Turley gives excellent background and analysis; he has the following comment

Seinfeld called Lapine . . . “hysterical.” He said: “Now you know, having a career in show business, one of the fun facts of celebrity life is wackos will wait in the woodwork to pop out at certain moments of your life to inject a little adrenaline into your life experience.” He further noted that Lapine could be dangerous, joking “if you read history, many of the three-name people do become assassins . . . Mark David Chapman. And you know, James Earl Ray. So that’s my concern.”

The Seinfelds are clearly going to defend on the basis that his statements were opinion and not factual representations covered by defamation rules.

A few thoughts below the fold. . .

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Hot Wings and a Waiver To Go: Restaurant Claims Patrons Must Sign A Waiver To Eat Its Wings

habaneros2.JPGApparently a Chicago restaurant has a wing recipe so hot that it will require one “to sign a waiver agreeing not to sue for injuries.” The chili used is not mentioned, but my guess is that it is the habanero or Scotch Bonnet which have high Scoville scale ratings. Whether or not this move is a publicity stunt or is motivated by the infamous Liebeck v. McDonald’s Restaurants case which involved a hot cup of coffee is hard to tell. Most likely the ability to say one signed the waiver will be a badge of honor. In fact if the restaurant wants to increase the marketing aspect of the idea, the customer might get a copy of the waiver along with an “I survived” certificate.

By the way as Dan noted in a recent post, the book Spice: A History of Temptation which I have just started reading is place to learn about the spice trade. As someone who loves spicy food, especially Indian and Chinese food, the fact that the peppers used in those cuisines originated in the Americas yet quickly have become a key part of the cuisines yet in quite different ways fascinates me. I wonder whether despite being imported, the chilies fit so well with the other spices and peppers that it was easier for those countries to incorporate and then adapt them into their recipes than it was for other cultures.

Disparate Impact in the Blogosphere

Danielle Citron gave a compelling presentation at the recent Yale Symposium on Reputation in Cyberspace exploring how group dynamics can deter women from participating online. The Yale Pocket Part has done a symposium on online harassment. Citron moved the discussion forward by analyzing social psychological dynamics in online life and describing how much more likely women are to be threatened by the worst type of comments:

Threats, lies, and the disclosure of private facts discourage women from blogging in their own names. Women lose opportunities to establish online identities that would enhance their careers and attract clients.

Destructive online groups prevent the Web from becoming an inclusive environment. Disappointingly, this phenomenon throws us back to the nineteenth century, when women wrote under gender-neutral pseudonyms to avoid discrimination.

Web 2.0 technologies provide all of the accelerants of mob behavior but very few of its inhibitors. . . . Individuals who feel anonymous do and say things online that they would never seriously entertain doing and saying offline because they sense that their conduct will have no consequences. A site operator’s decision to keep up damaging posts encourages destructive group behavior. Online mobs also have little reason to fear that their victims will retaliate against them.

The AutoAdmit lawsuit is a first step toward addressing the last concern. Making internet intermediaries more responsible may be another.

Given that the Yale conference had been criticized for failing to adequately include women’s voices, Citron’s presentation was especially important. While cyberspace may be liberating for many, the same prejudices that permeate real life can infect the online world. And as more of our life gets conducted online, combating these prejudices is going to need to become not merely a legal, but a cultural project. That issue has a long history, and has sparked many valuable discussions. Citron has already done very important work on making computer systems more accountable, and I look forward to reading her contributions in this area.

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Facebook Listens and Responds

facebook3.jpgI’m quite pleased to learn that Facebook has come to a privacy epiphany. I’ve been blogging a lot lately about the privacy problems with Facebook’s new features — Beacon and Social Ads:

* Facebook’s Beacon: News Feeds All Over Again?

* The Facebook-Fandango Connection: Invasion of Privacy?

* Facebook and the Appropriation of Name or Likeness Tort

* The New Facebook Ads — Starring You: Another Privacy Debacle?

Facebook recently announced that it is changing the way it obtains people’s consent before it uses or discloses their personal information. In particular, its change in policy involves Beacon. According to the AP:

More than 40 different Web sites, including Fandango.com, Overstock.com and Blockbuster.com, had embedded Beacon in their pages to track transactions made by Facebook users.

Unless instructed otherwise, the participating sites alerted Facebook, which then notified a user’s friends within the social network about items that had been bought or products that had been reviewed.

Facebook thought the marketing feeds would help its users keep their friends better informed about their interests while also serving as “trusted referrals” that would help drive more sales to the sites using the Beacon system.

But thousands of Facebook users viewed the Beacon referrals as a betrayal of trust. Critics blasted the advertising tool as an unwelcome nuisance with flimsy privacy protections that had already exasperated and embarrassed some users.

Some users have already complained about inadvertently finding out about gifts bought for them for Christmas and Hanukkah after Beacon shared information from Overstock.com. Other users say they were unnerved when they discovered their friends had found out what movies they were watching through purchases made on Fandango.

Peter Lattman of WSJ blog was one of the ones caught off guard by Beacon, when he discovered to his dismay that Facebook announced to his friends that he bought tickets to Bee Movie on Fandango.

According to the New York Times:

Under Beacon, when Facebook members purchase movie tickets on Fandango.com, for example, Facebook sends a notice about what movie they are seeing in the News Feed on all of their friends’ pages. If a user saves a recipe on Epicurious.com or rates travel venues on NYTimes.com, friends are also notified. There is an opt-out box that appears for a few seconds, but users complain that it is hard to find.

The New York Times story explains Facebook’s change in policy:

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The Facebook-Fandango Connection: Invasion of Privacy?

facebook3.jpgfandango.jpg

Facebook recently rolled out a new advertising program called Social Ads, where Facebook users’ images, names, and words are used to help advertise products and services. I blogged about Facebook’s Social Ads here and here, contending that they are likely a violation of the tort of appropriation of name or likeness as well as the right to publicity tort.

Peter Lattman at the WSJ Blog has a great new post about Facebook that throws in another even more troubling wrinkle:

Last Sunday the Law Blog purchased three tickets to “Bee Movie” on Fandango, the movie site. After we did this, Facebook automatically updated our profile to say, “Peter bought ‘Bee Movie’ on Fandango.”

Huh? Did we want everyone on Facebook to know our movie-buying habits? Not really. But it seems we agreed to this. According to Fandango’s privacy policy, which we agreed to by using the site, “If you are a member of a social network service (such as Facebook, MySpace, etc.) or you use other Internet sites where you have authorized them to gather information about your online behavior on Fandango . . . Fandango may share information regarding your activities . . . with those third parties pursuant to your authorization.”

Then we checked out our privacy settings on Facebook. Under “Privacy Settings for External Websites,” there’s a Fandango icon, indicating that we’ve agreed to have our actions on Fandango sent to our Facebook profile. We changed our profile, mandating that they never — never! — do this again.

This case illustrates why the current legal regime regulating personal information at most websites is so deeply flawed. The default settings are set to allow information sharing and disclosure, with users often completely unaware of how their information is going to be used. Businesses frequently tout how they are protecting privacy by providing users with “notice and choice” about how their information will be collected, used, and disseminated. Yet the system rarely results in informed consumers or meaningful choices.

So imagine: You go to Fandango and buy tickets to see a movie — and then all of a sudden your purchase is being revealed publicly to everybody you know on Facebook. You probably didn’t even know that Facebook had this deal with Fandango. What if more websites like Fandango start to collude with Facebook? Does this mean that every time we visit a website, every time we make a purchase, the information starts showing up in our Facebook profiles and on our friends’ Facebook profiles?

At least Social Ads, as I understood it, involved people publicly stating they liked or used a product. This is still problematic, for the reasons I discussed in my posts — being used in an ad unwittingly is a harm even if one has publicly praised the things being advertised in the past. But now Facebook is taking things one step beyond by exposing people’s personal information to the public. Perhaps Peter Lattman doesn’t want the world to know that he saw Bee Movie. Perhaps he does. But this is something he should decide, not the corporate officials at Facebook or Fandango.

“Poor Peter,” Fandango and Facebook will say, “But you should have read our privacy policies! It’s all your fault Peter.” Fandango’s privacy policy states:

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Facebook and the Appropriation of Name or Likeness Tort

facebook.jpgA few days ago, I posted about Facebook’s new Social Ads and I argued that they might give rise to an action under the appropriation of name or likeness tort. The most common formulation of the appropriation tort is defined in the Restatement (Second) of Torts § 652C: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”

A related tort, a spin-off of appropriation, is the “right of publicity” which as defined by the Restatement (Third) of the Law of Unfair Competition § 46: “One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purpose of trade is subject to liability for [monetary and injunctive] relief.”

These two torts have sometimes been confused with each other, but the basic difference is that appropriation protects one’s dignitary interests in not desiring to have one’s identity exploited and used for another’s benefit whereas the right of publicity protects a person’s property interest in the commercial value of her identity.

Both torts are potentially applicable to Facebook’s Social Ads.

Over at Digital Daily, John Paczkowski discusses my post and adds:

Now Facebook claims no personally identifiable information is shared with an advertiser in creating a Social Ad. “Facebook has always empowered users to make choices about sharing their data, and with Facebook Ads we are extending that to marketing messages that appear on the site,” the company explains. “Facebook users will only see Social Ads to the extent their friends are sharing information with them.” That’s certainly a thoughtful assurance. But it doesn’t exactly address the issue of Facebook appropriating user identities for its own benefit.

At the NYT”s Bits, Saul Hansell discusses the response of Chris Kelly, the chief privacy officer of Facebook:

Mr. Kelly said the advertisements are simply a “representation” of the action users have taken: choosing to link themselves to a product. He added that in many states, consenting to something online is now seen as the equivalent of written consent.

And he argued that it would be difficult for someone used in one of these ads to object because that person had already chosen to publicly identify themselves with the brand doing the advertising.

“We are fairly confident that our operation is well presented to users and that they can make their own choices about whether they want to affiliate with brands that put up Facebook pages,” Mr. Kelly said.

I don’t agree with Kelly’s take on the law. Suppose Michael Jordan says on national TV that he likes Wheaties. Does this allow Wheaties to use his image on its cereal box or in a commercial? The answer is no. The fact that Jordan says he likes Wheaties can be used in a news story; it can be used in a biography of Jordan. But it cannot be used in a commercial advertisement. Comment (c) to the Restatement’s section on appropriation states that “the defendant must have appropriated for his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff’s name or likeness.” That’s exactly what’s being done with Social Ads. They are not merely reporting facts (which is ok under appropriation and publicity); instead, they are using the reputation and standing of people to promote commercial products and services.

The fact that a person publicly states that she likes a product is not equivalent to that person’s consent to be used in an advertisement. Otherwise, Coca Cola could snap a photo of a celebrity drinking a can of Coke and then use the photo in its ad campaign without paying the celebrity. That celebrity’s lawyers would be licking their chops if that were to happen.

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The New Facebook Ads — Starring You: Another Privacy Debacle?

facebook.jpgFacebook recently announced a new advertising scheme. Instead of using celebrities to hawk products, it will use . . . you! That’s right, pictures of you and your friends will appear on Facebook ads to make products more enticing to Facebook customers.

As Facebook’s website describes its new “Social Ads” program:

Facebook Social Ads allow your businesses to become part of people’s daily conversations. Ads can be displayed in the left hand Ad Space — visible to users as they browse Facebook to connect with their friends — as well as in the context of News Feed — attached to relevant social stories. The social stories, such as a friend’s becoming a fan of your Facebook Page or a friend’s taking an action on your website, make your ad more interesting and more relevant. Social Ads are placed in highly visible parts of the site without interrupting the user experience on Facebook.

Here’s the sample ad that Facebook includes on its social ad description page:

facebook-social-ad.jpg

According to the NY Times:

Facebook wants to put your face on advertisements for products that you like.

Facebook .com is a social networking site that lets people accumulate “friends” and share preferences and play games with them. Each member creates a home page where he or she can post photographs, likes and dislikes and updates about their activities.

Yesterday, in a twist on word-of-mouth marketing, Facebook began selling ads that display people’s profile photos next to commercial messages that are shown to their friends about items they purchased or registered an opinion about.

For example, going forward, a Facebook user who rents a movie on Blockbuster.com will be asked if he would like to have his movie choice broadcast out to all his friends on Facebook. And those friends would have no choice but to receive that movie message, along with an ad from Blockbuster.

At this point in reading the article, it seems as though participation in the ads (by the person being used in the ad) is fully consensual. But the article goes on to say:

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