CalBizLit posted last Wednesday here about renowned attorney Mark Lanier's privacy law suit against Facebook, which was met with the derisive hoots it certainly deserved. But there's a more serious issue about Facebook, MySpace and other social network sites that is important for everyone in the world of product liability and other personal injury litigation. The questions are these: when is the defense entitled to the plaintiff's ostensibly private, or at least restricted, social networking postings, and what is the process for getting them?
The Ninth Circuit decision in Gordon v. Virtumundo (9th Cir., 2009) ___ F.3d ____ (No. 07-35487) is in a case that actually originated in the District Court for the Western District of Washington, not from California at all. But it shows such common sense and spine on the part of both the District Court and the Ninth Circuit in wading into uncharted legal waters that I want to talk about it anyway. The question is whether an individual can make himself a bounty hunter for purposes of enforcing the CAN-SPAM Act(15 U.S.C.
§7701 et seq.) by buying a domain name, setting up an e-mail address on leased server space, registering for a bunch of online promotions and giveaways and then allowing the e-mail address's inbox to collect the inevitable spam. For those of you who are interested in this question, but not all that interested, the answer is "no."
For those with more interest, there's more after the jump.
Man, Silicon Valley is a strange place. One of the weirder sideshows there over the past few years has involved a couple of former Varian Medical Systems employees, Delfino and Day, published large numbers of internet bulletin board messages about Varian and two of its two executives. Varian and the executives sued, and Delfino responded with more messages, posting over 13,000 such messages on various bulletin boards and promising to continue to do so until they died. A jury awarded $775,000, the Court of Appeal affirmed, and the Supreme Court took it away.
So now, meet son of Varian v. Delfino and Day, yesterday’s Court of Appeal decision in Delfino et al. v. Agilent Technologies, Inc. First District Court of Appeal No. H028993. This case actually has significance for any California business running a network and providing internet access to employees (which is to say, just about all companies). Fundamentally, the facts are these: an Agilent employee, upset with Delfino and Day, sent them a bunch of threatening e-mails using his Agilent e-mail account. Delfino and Day sued Agilent for intentional and negligent infliction of emotional distress. Citing Section 230 of the Communications Decency Act of 1996, and several state and federal cases applying it, the Court held that an employer who provides internet service to its employees is “a provider or user of an interactive computer service” for purposes of the act, and that it was absolutely immune from suit for its employees postings using that service.
A good discussion of previous California and Federal cases on Section 230 appears in the California Supreme Court's recent decision in Barrett v. Rosenthal.
