Welcome to the newest issue of Socially Aware, our Burton Awardwinning guide to the law and business of social media. In this edition— which we have dubbed the "like" issue—we look at several topics surrounding the proverbial online thumbs up, including the emerging legal status of Facebook likes and similar social media constructs; Facebook's recent prohibition of the popular business practice of offering discounts, exclusive content and other incentives in exchange for liking a company's Facebook page; and Facebook's crackdown on the practice of buying phony likes. We realize though that likes aren't everything, so we also explore the legal framework for moving personal data to the cloud; we examine clickwraps vs. browsewraps in relation to the implementation and enforcement of online terms of use; we discuss the new California privacy law revisions impacting website and mobile app operators directing their services to minors; we take a look at the new infringement exceptions in the United Kingdom; and we highlight a recent decision in the UK granting a website-blocking order against certain ISPs in a case involving counterfeit goods.

All this—plus an infographic about—what else?—Facebook likes.

WHAT'S IN A LIKE?

By Aaron Rubin and Cara Ann Marr Rydbeck

In the pre-Facebook era, the word "like" was primarily a verb (and an interjection sprinkled throughout valley girls' conversations). Although you could have likes and dislikes in the sense of preferences, you could not give someone a like, claim to own a like or assert legal rights in likes. Today, however, you can do all of these things and more with Facebook likes and similar constructs on other social media platforms, such as followers, fans and connections. This article explores the emerging legal status of likes and similar social media constructs as the issue has arisen in a number of recent cases.

LIKES AS PROTECTED SPEECH

One of the early cases to delve into the legal status of likes was Bland v. Roberts, which addressed the issue of whether a Facebook like constitutes protected speech for purposes of the First Amendment. In Bland, five former employees of the Hampton Sheriff's Office brought a lawsuit against Sheriff Roberts, alleging that he violated their First Amendment rights to freedom of speech and freedom of association when he fired them, allegedly for having supported an opposing candidate in the local election. In particular, two of the plaintiffs had "liked" the opposing candidate's Facebook page.

Although—as we discussed previously— the district court held that merely liking a Facebook page was insufficient speech to merit constitutional protection, on appeal the Fourth Circuit reversed and held that liking a Facebook page does constitute protected speech. The Fourth Circuit looked at what it means to like a Facebook page and concluded: "On the most basic level, clicking on the 'like' button literally causes to be published the statement that the User 'likes' something, which is itself a substantive statement." The Fourth Circuit also found that liking a Facebook page is symbolic expression because "[t]he distribution of the universally understood 'thumbs up' symbol in association with [the] campaign page, like the actual text that liking the page produced, conveyed that [the plaintiff] supported [the opposing candidate's] candidacy." The court analogized liking the opposing candidate's Facebook page as the "Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."

LIKES AS PROPERTY

Perhaps most interestingly from a business perspective, various cases have explored the question of ownership of a like—and similar concepts, such as a Twitter follower or LinkedIn connection. In Mattocks v. Black Entertainment Television LLC, the plaintiff Mattocks created an unofficial Facebook fan page focused on the television series The Game, which at the time was broadcast on the CW Network; BET later acquired the rights to The Game from the CW Network. BET eventually hired Mattocks to perform part-time work for BET, including paying her to manage the unofficial fan page. During the course of that relationship, BET provided Mattocks with BET logos and exclusive content to display on the fan page, and both Mattocks and BET employees posted material on the fan page. While Mattocks worked for BET, the fan page's likes grew from around two million to more than six million. Mattocks and BET began discussions about Mattocks' potential full-time employment at BET but, at some point during these discussions, Mattocks demoted BET's administrative access to the fan page. After losing full access to the fan page, BET asked Facebook to "migrate" fans of the page to another official Facebook fan page created by BET. Facebook granted BET's request and migrated the likes to the other BET-sponsored page. Facebook also shut down Mattocks' fan page. Mattocks then sued BET in the Southern District of Florida, alleging, among other things, that BET converted a business interest she had in the fan page by migrating the likes. Mattocks argued that the page's "significant number of likes" provided her with business opportunities based on companies paying to have visitors redirected to their sites from the page. BET moved for summary judgment.

The district court granted BET's motion for summary judgment on Mattocks' conversion claim, holding that Mattocks failed to establish that she owned a property interest in the likes. The court explained that "liking" a Facebook page simply means that the user is expressing his or her enjoyment or approval of the content, and that the user is always free to revoke the like by clicking an unlike button. Citing Bland (discussed above), the court stated that "if anyone can be deemed to own the 'likes' on a [Facebook page], it is the individual users responsible for them." Given the tenuous relationship between the creator of the Facebook page and the likes of that page, the court held that likes cannot be converted in the same manner as goodwill or other intangible business interests.

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Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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