What’s the value of a word?
Amid the barrage of headlines concerning Facebook’s initial public offering, one seemingly harmless four-letter word has been causing a very different kind of legal commotion.
The word: Like.
What is it about Facebook’s little blue “Like” button that’s so alluring? Why is the “thumbs up” image so irresistible? And why do ramifications over its use incite such furor in some who yield to their urge to click?
Those questions prompted us to look at two recent (albeit very different) cases which have placed use of Facebook’s “Like” button under the legal microscope. Both cases underscore the importance of choosing your words – and clicks – carefully.
What’s In a Click?
The first case serendipitously settled just days after Facebook’s widely publicized initial public offering.
According to a May 22, 2012 report released by Thomson Reuters, Facebook recently agreed to settle a class action lawsuit involving use of the word “Like” which had been quietly brewing in the U.S. District Court for the Northern District of California. Plaintiffs were apparently perturbed with the way in which their names, photographs, and likenesses were used when they clicked on Facebook’s “Like” button.
In the case, Fraley v. Facebook Inc., plaintiffs claimed their clicking the “Like” button resulted in unauthorized, nonconsensual personal endorsements by plaintiffs of the “Liked” products, services, or goods, without the ability to “opt out,” generating advertising revenue to Facebook.
Contrary to the plain meaning of the word “like,” plaintiffs alleged that a user’s click on the Facebook “Like” button doesn’t always correlate with actually having an affinity for something.
A Right to “Like”?
Clicking the “Like” button not only caused some legal headaches in the Fraley case, but also allegedly caused the firing of a Hampton Sheriff’s Office employee in Virginia, prompting him (and others) to file an action against the Sheriff there last March.
The case, Bland v. B.J. Roberts, concerned claims that one of the plaintiffs was fired in retaliation for exercising his constitutionally protected right to freedom of speech when he “Liked” the Facebook page of the Sheriff’s election opponent. In this April 24, 2012 opinion, the U.S. District Court for the Eastern District of Virginia examined whether “Liking” something on Facebook constitutes constitutionally protected activity.
In a Memorandum Opinion & Order spelling out its rationale, the court boldly concluded that “Liking” something on Facebook is not free speech protected under the First Amendment.
The court’s decision has some legal commentators scratching their heads. It’s a good bet we haven’t seen the end of this decision, with others like it certain to follow (no pun intended). Many suspect the decision to be headed to appeals court.
The Power of a Four-Letter Word
Given the recent controversies over what “Liking” something means in the age of Facebook, we decided to do the obvious – we turned to a dictionary for help. According to the Miriam-Webster online dictionary, words related to the verb “like” include:
adore, delight (in), dig, enjoy, fancy, groove (on), love, relish, revel (in), welcome; covet, crave, desire, die (for), hanker (for or after), wish (for), yearn (for).”
Those are some strong emotional associations tied to one little four-letter word.
Perhaps Mark Twain said it best, “A powerful agent is the right word … Whenever we come upon one of those intensely right words … the resulting effect is physical as well as spiritual, and electrically prompt.”
In the age of Facebook and social media, it’s wise to know what legal ramifications exist when you “Like” something.
The Facebook “Like” button and the changing ways in which we choose to communicate our preferences to others has pushed to the legal forefront fundamental questions regarding free speech, privacy rights, and the right to use another’s public image.
That’s quite an impact for one little word.
Knowing that one click can convey such a world of information certainly causes one to exercise a little more caution before doing so.
Do you think “Liking” something on Facebook should be protected speech under the First Amendment?
Latest posts by Maggie Tamburro (Posts)
- Social Media & the Law – Beyond Big Brother? - 2013/05/10
- No Damages Expert … No Relief? - 2013/05/06
- Surviving a “Gatekeeping” Challenge – Expert Rulings Shed Light - 2013/04/30
Related posts:
10 Responses to “Think Before You Click – Facebook’s “Like” Button”
Sorry, the comment form is closed at this time.
I ‘Like’ this blog
Always interesting and incisive.
Bob,
Thank you for your feedback. We always “Like” to hear from our readers also!
Protection under free speech provision of the first amendment???
This is the internet and as such it is nearly as ubiquitous as standing on a street corner and espousing “liking” something from a soap box. So in that context it should be protected. But by clicking a “Like” button is not the same as saying you like it. I realized early on that once you put it out there on the web it is almost there forever, whereas words spoken from a soap box on the corner is transient (well almost considering smartphones and You Tube, etc.). So an individual should beware of snares they can fall into.
Bottom-line: Clicking a button on the web carries more responsibility for the clicker to use judgment and discretion because he/she does not know the ultimate use and visibility of the action as a result.
Often it seems as though the law struggles to play catch-up to technology. This is one great example.
Very interesting and thought provoking content. Thank you.
Facebook doesn’t have an “interest” or “connect” button. There is no way to connect with another’s page (say, to stay updated on the status of a particular candidate, pro or con) without “liking” it. In this case, it would seem that “like” doesn’t really mean “like” in the traditional sense, but it is merely a label for the software trigger (button) that connects one facebook user to another, for whatever purpose they wish. It isn’t “liking” so much as “linking”. Not sure why the legal system can’t recognize such a simple technical concept (no money in that, I suppose).
Facebook users also need to understand that we are not Facebook customers. We are Facebook’s raw materials. Now that they have to deliver on all those lofty pre-IPO promises, expect to be utilized as such on a much more blatant level now.
Doug,
You raise an interesting point. It makes one wonder if, following its IPO, Facebook will now consider offering other click options – much like the ones you suggest. Thanks for a thought-provoking comment.
Yes, it is protected speech, not unlike a ballot check.
I wish the article had discussed more examples to relieve its vague blandness.
Larry,
We are always interested in hearing our readers’ comments and opinions. Thanks for sharing yours.
We try to keep our “lighter” and less academic posts, (which we do about once a month), a little shorter and fun to read.
For an additional example of the first amendment and Facebook, some courts have extended constitutional protection to Facebook posts, (as the Bland decision points out), but the difference is that generally those statements have been specific posts that became part of the evidentiary record.
For example, the Bland decision cites Mattingly v. Milligan, No. 4:11CV00215 JLH (E.D. Ark. Nov. 1, 2011), in which the court extended constitutional protection to a specific post on plaintiff Mattingly’s “wall” about the firing of certain employees.
Bland distinguished the Mattingly case, stating that, unlike a specific post, no such statement existed in “liking” a Facebook page.
This is a developing area of law and one would certainly expect to see more legal activity on constitutional protection and social media in the future.
Update: As reported by Forbes in an August 7th article, the ruling discussed above in Bland v. B.J. Roberts has indeed been appealed to the 4th Circuit. Facebook (among others) filed an amicus brief, arguing that the Facebook “Like” button is “speech” that should be afforded constitutional protection. The 4th Circuit’s opinion will be one to watch.