Web 2.0: The Unwanted Friend Request of Litigation

The rising star of Web 2.0 has brought the dawn of social and professional networking sites such as Facebook, MySpace and LinkedIn.  These free services have grown in popularity so that it’s rare to find a person under the age of 35 who doesn’t have some type of personal Web page.  With the dawning of these networking groups has come the dawning of numerous lawsuits.

 

 The Indiana Supreme Court recently rendered an opinion on the intricacies of MySpace.  A 14-year-old student was adjudicated delinquent on what would have been criminal harassment charges had the student been an adult.  The student was charged because of statements she posted about her school principal in a MySpace private group and on a separate profile.[1]

 

 

 The Indiana Supreme Court undertook a detailed discussion of how MySpace operates, how only members of a group could see specific postings, and if a profile were set to “private,” only “Friends” could view it.  Additionally, the Court took issue that the State offered no witness to address how MySpace actually works. 

 

 The Indiana Supreme Court held that the State failed to prove that the student made the MySpace statements with the intent required for criminal harassment.  The Court’s analysis covered in great detail that a message posted on a personal profile or available only to a private group with only members having viewing rights did not prove the student’s intent to harass.  The student did not reasonably expect the principal to view any postings by either joining the private group or viewing her public profile. 

 

 The main thrust of the Indiana Supreme Court’s opinion was an understanding of how MySpace operates.  A party’s failure to understand how these social networking sites actually work can break their case. 

 

 The Supreme Court of Iowa also weighed in on a social networking case.  The case’s key issues centered on proving the elements of a criminal conspiracy as well as the conspiracy exception to the hearsay rule.  The hearsay at issue was party invitations sent from Facebook.[2]

 

  A group of college students were holding a house party, for which they posted an invitation on Facebook. The college students planned to charge admission and split the party profits.  The students bought beer and made JELL-O shots for the partygoers.   

             

 One attendee, a-20 year-old student who drank at the party, later killed another person on her drive home.  The college students who planned the party were charged with serving alcohol to persons under the legal drinking age.  The charge also stated that the party hosts knew that the invited partygoers would include people under the legal drinking age. 

 

 On discretionary review, the Iowa Supreme Court addressed the elements to criminal conspiracy and the conspiracy exception to the hearsay rule.  The Iowa Supreme Court held that the co-conspirator exception to the hearsay rule applied to agreement to do a lawful act in an unlawful manner; in this case, sending out party invitations on Facebook.

 

 State courts are actively facing cases involving social networking sites.  These cases will continue to grow in number, ranging from defamation, trade secret violations and everything else that fuels both criminal and civil litigation.  Lawyers can expect courts to require expert testimony on how social networking sites work.  Without this evidence and intimate knowledge of how the sites operate, parties might fail to prove their cases. 

 

 

 

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[1] A.B. v. State, 885 N.E.2d 1223 (Indiana, May 13, 2008 )

[2] State v. Tonelli, 2008 WL 2152529 (Iowa, May 23, 2008))