Legal issues

The Brave New World of MySpace and Facebook

College students are flocking to social networking sites on the Internet in stunning numbers, often unaware of the potential dangers that can arise there. These dangers primarily arise from posting personal information online that can be viewed by criminals, potential employers, and school administrators, which can result in identity theft, loss of job opportunities, and violations of school rules. Campus administrators should inform their students about the potential dangers of using social networking Web sites -- but they should be cautious not to do so in ways that could make them liable if the students engage in illegal behavior.

Students view social networking Web sites as private databases that permit them to communicate using a multimedia-based approach, but many don’t realize the potential dangers that accompany this type of activity. Because of this, colleges must provide their students with information regarding three major concerns in sharing information online: (1) the threat of criminal behavior; (2) how they might be seen by potential future employers; and (3) possible violations of their institution’s student code of conduct.

Although many students believe the personal information they share on social networking sites is not viewed by others, that information can provide criminals with enough detail to identify the student.  In doing so, a student who posts personal details online can give criminals enough information to commit crimes such as stalking or identity theft.  Because of the high risk of such crimes when personal information is posted on social networking Web sites, colleges should advise their students not to share private information online, such as names, addresses, email addresses, birthdates and phone numbers.

Information that students may think is personal could be viewed by potential employers if posted on social networking sites.  As a result, colleges and universities should warn their students not to post inappropriate messages or photographs that could negatively influence an employer’s perception.  Many employers are aware of social networking Web sites, and some use these sites to check for negative attributes of an applicant.

A recent New York Times article highlighted this concern: “[N]ow, college career counselors and other experts say, some recruiters are looking up applicants on social networking sites ... where college students often post risqué or teasing photographs and provocative comments about drinking, recreational drug use and sexual exploits in what some mistakenly believe is relative privacy.” Because the information posted by students on social networking Web sites is often publicly viewed, colleges should remind their students that the information they post on these sites is not private, and that potential employers could use that information to form crucial first impressions about student applicants.

Much of the information that would create concern among potential employers if viewed on a social networking Web site could also violate a school’s code of student conduct. These student rules and restrictions are often found in a student handbook or similar school publication. The Syracuse Post-Standard described this issue as “a growing trend where officials nationally are paying attention to what their students are posting on the Internet.”

Students have been found guilty of violating these student regulations at numerous schools.  At Pennsylvania State University, students created a Facebook group entitled “I rushed the field,” to which students joined and posted photographs and names of people on the field after the school’s win over Ohio State in football.  After accessing the Facebook group’s Web page, university police used that information to identify more than 50 students who violated the school’s policy by rushing the field after the football game.

In addition, a growing number of universities are creating policies to regulate their athletes’ use of social networking Web sites.  Athletes present a unique public image for the university, and schools could be embarrassed if athletes post information online about participating in illegal activities.

In May 2005, students on Louisiana State University’s swim team were reprimanded after athletic administrators discovered the students belonged to a Facebook group that included disparaging comments about swim coaches. One student transferred to Purdue University to avoid being reprimanded and expressed surprise that administrators had found the postings online. Athletic administrators at Florida State University and the University of Kentucky recently warned their athletes to be careful what they post.

Challenges for Colleges, Too

Just as social networking sites pose a set of potential risks for students, they create a set of questions and potential problems for institutions as well.

Although most colleges do not currently monitor their students’ online activities, university police often investigate tips received about information posted on the Internet. As a result, university police and school administrators may learn about information posted on social networking Web sites that violates the school’s code of student conduct.

Three primary questions arise in the context of monitoring these activities. First, is the college monitoring its students’ online activities regularly? A college that doesn’t monitor its students’ online activities should analyze whether monitoring is necessary.

Second, if the institution monitors this activity, why has it chosen to do so?  If a college monitors its students’ online activities to assure that students act in accordance with its mission, such as a military or religious institution, then it may create a “duty of care” toward its students. A duty of care would obligate a college to take all reasonably practicable steps to prevent its students from harm. If a college with a duty of care toward its students does not take all reasonably practicable steps to prevent harm to its students, the college’s actions may be negligent and could expose the college to lawsuits. But colleges that do not regularly monitor their students’ online activities and only investigate tips of potential crimes online may be free to continue periodic monitoring without assuming a duty of care.

Third, has the college informed its students of its policy toward monitoring? A school that informs all incoming students of its policy of monitoring students’ online activities during orientation or posts this information prominently on campus may be more likely to assume a duty of care toward its students. If most students are not informed of a school’s policy of monitoring such activities, however, the school may be less likely to have assumed a duty of care toward its students, because there is likely a lower expectation that the school would monitor these activities.

In addition, the specificity and clarity of a school’s statements informing students of the school’s monitoring policy should be considered.  If the school’s policy statement is ambiguous or its scope is unclear, students may be less likely to rely upon schools to prevent illegal acts resulting from online activity. Statements that clearly state the school’s policy of monitoring, including its scope and application to specific online activities, such as social networking Web sites, are more likely to create a duty of care for the school.

Colleges and universities must inform students about the particular dangers they face online. But if schools actively monitor their students’ online activities and students are aware of this policy, they may have a duty of care that includes preventing any illegal acts committed as a result of information posted online.

Thus, schools should inform their students about the potential dangers of using social networking Web sites, but should also be careful not to become liable if the students engage in illegal behavior.

Sheldon Steinbach and Lynn Deavers
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Sheldon E. Steinbach and Lynn M. Deavers are lawyers in the higher education practice at the Washington law firm Dow Lohnes

A System for Fighting Digital Defamation

Part I of this two-part series argued that it was inappropriate for colleges and universities to assume responsibility under in loco parentis for protecting college students from anonymous digital defamation, and that institutions should instead empower students by educating them on available strategies and resources.

In this essay, we discuss a disaggregated solution for addressing digital defamation and the resulting disaggregated harms it causes. By establishing a database-driven Web-based litigation system, we can empower students and level the playing field so that interested students can defend themselves, and hopefully deter future digital defamation.

The Digital Defamation Problem

Juicy Campus, the anonymous gossip site that closed its doors in 2009, and its replacements, such as College ACB and Campus Gossip, allow anyone with an Internet connection to post almost any content about a student, true or otherwise. The sites themselves do not necessarily target students. Instead, these sites become a clearinghouse for disaggregated, defamatory statements that cause emotional distress. The sites structure themselves by college and then by topic or victim, making it likely that the poster lives within a few miles of the victim.

Gossip may be posted freely and anonymously across these gossip sites, but it has actual victims and real costs. After reading degrading statements about themselves, victims often feel helpless, and some engage in, or consider engaging in, self-harming activities. Victims of cyber-sliming can fight back -- but for hundreds or thousands of dollars a month. Those with financial ability can hire Web services such as Reputation Defender (a service that, for a fee, minimizes the search ranking of negative postings about the client while boosting the search ranking of positive information) or specialist attorneys (who, for a fee, will investigate and file the necessary lawsuits to clear one’s reputation).

Lawsuits can be effective. Two years ago, two Yale students saw some success in identifying and pursuing those who smeared them on the Web site AutoAdmit. If they had not been represented by lawyers without charge, their partially successful pursuit would have come at significant cost. Recently, a model, represented by counsel, successfully sued Google in New York state court to reveal the identity of an anonymous blogger who called her a “skank” on a Google-hosted blog. With the blogger’s identity revealed, the model dropped her suit.

Yet many college students who fall victim to such anonymous defamation cannot afford high-priced reputation-clearing services or legal representation, and can fall victim to these brutal attacks with few options for fighting back. While the weapons for anonymously hurling invective across cyberspace have decreased in cost to where they are almost free, the solutions for, and protections from, defamation remain costly. To that end, we envision a system that allows victims of defamation to fight back, at a lower cost, with the hope that the market further lowers the costs of such protection to a level that deters anonymous cyber-sliming.

A Disaggregated Solution

Due to the disaggregated nature of anonymous defamatory attacks against students, even colleges who would welcome their role in loco parentis cannot take on these Web sites or their anonymous posters. Due to mirror sites and easy off-campus Internet access, blocking access to such sites is ineffective in the long term. Rather, the most effective and practical method is for colleges to educate students on how to protect themselves against digital defamation.

To that end, we propose a disaggregated digital solution to this disaggregated digital problem: a database-driven, Web-based litigation system that would allow students to file suit using fill-in-the-blank legal forms. When student affairs staff members are approached by student victims, in addition to offering counseling, they can direct the student to a system where the student can engage in self-help.

Establishing such a system will come at significant cost – a cost that can only be borne by a large organization possessing the funds to develop and host the site and the staff to keep it updated as laws and standards change, to provide technical support to student victims, and to ensure that it does not violate state rules against improper practice of law.

Possible candidates include the Anti-Defamation League, national student advocacy groups and national student affairs professionals groups. Other candidates include law school clinics whose students could design such a site and assist student victims in reclaiming their reputations. Likewise, for-profit private sector entrepreneurs may find an opportunity here.

The system’s goal is to educate students about the general laws of defamation, and guide them through the process of bringing a lawsuit in the proper court. While most lawsuits would be for false and libelous defamation, even true statements can sometimes be so vile that they qualify under certain state laws governing intentional or negligent infliction of emotional distress (I.I.E.D.).The beauty of a database-driven system is that it could equally provide for an I.I.E.D. claim in those states where such a claim is allowed.

Defamation suits must be brought in state court except in rare, complicated cases. Which state’s court is appropriate depends on several factors. Since most of these claims will result from postings in forums dedicated to the college or university that the victim attends, that state’s courts will likely assert jurisdiction over the matter.

Gossip sites like Juicy Campus or College ACB “do business” in any state in which they establish a forum for gossip at a college located there. Further, the publication would occur in that state (among others) while the victim, and most likely the harasser, live in the same state. Like all lawsuits, these suits will not succeed every time, and some courts may decline jurisdiction. But, for many students, the system will take them down a path toward discovering the identity of their harassers and pursuing legal remedies against them.

The System for Fighting Back

The first step a student must take after viewing a cruel gossip post is to analyze the content of the post -- honestly. Although something is hurtful, it might not qualify as defamation. Truth is not defamation. Additionally, laws typically require that the poster had to know, or reasonably should have known, that the post was false when he or she posted it. Further, the post must be a factual statement; opinions are usually fair game. The student must differentiate between “John Jones is a drug addict” (claim of fact) and “John Jones acts like a stoner” (opinion).

Admittedly, this is a difficult line to draw for Constitutional scholars, and it will not be easy for college students without assistance. A well-designed system could include a “wiki”-style guidance document where those who bring successful cases or bring significant knowledge of defamation law can help students determine if a statement meets the definition. As cases progress, sharper definitions of defamatory statements may emerge. If the student concludes that the comments are really opinions, but they are “extreme and outrageous” enough to cause severe distress, the student might still have a claim against the poster for I.I.E.D.

The second step for a student is to see if they can determine who the poster is. If so, the path is easier. If not, the system would present them with a fill-in-the-blank “John Doe” lawsuit and subpoena for the gossip site hosting the comments. Using a database, the system can offer different forms and filing options depending on the state. Some states allow electronic filing while others require printing and mailing.

Once the victim sends the subpoena to the gossip site, the third step for a student is to provide some notice to the poster. One way is to post the subpoena in the same forum used for the defamatory post. If the site cooperates and releases the Internet Protocol (I.P.) address for the offending poster, the next step is to use the Internet “Who Is” database to determine the poster’s Internet Service Provider (I.S.P.), and subpoena that I.S.P. for the poster’s identity. If the I.S.P. cooperates and identifies the poster, the victim can amend the suit’s defendant to name the poster.

Some Reasonable Criticisms

It should be noted that this system is neither perfect nor free from criticism. For every success, there will be failures: paperwork lost, I.P. addresses destroyed or not captured, deadlines missed, and sites and I.S.P.’s uncooperative. It may be that few cases go to trial. Many will die on the vine due to technical or substantive problems. The successful cases, however, may result in large judgments, especially in the cases of the most malicious and untrue gossip. These cases, even if rare, may provide a deterrent against future libel. The examples of a few bright students who declare bankruptcy, cannot buy a home or have their wages garnished to pay a defamation judgment may dissuade future harassers.

A prime criticism to this system is the position that the Internet is a bastion of free speech and nothing should stand in the way of unabashed free speech. Yet, defamation and speech intended to inflict severe emotional distress is not First Amendment protected speech. States can and do regulate this type of speech. We are not seeking a new regime that silences free speech on the Internet; rather we hope to apply the same standards to the Web that govern in the real world.

Another criticism is that this system will only work to the extent that Web sites capture I.P. addresses and submit to jurisdiction. Further, some posters will use anonymizing software or post from locations that do not capture I.P. addresses. This criticism is valid, and admittedly, the system will not work entirely for every student.

However, while some sites may choose not to capture I.P. addresses, sites may begin to receive so many of these subpoenas that they comply for the sake of cost-saving efficiency. Alternatively, Congress or trial judges may begin to find bad faith in quickly deleting I.P. addresses simply to shield malicious posters from the legal system, and the legal and legislative marketplace may, thus, correct that difficulty.

Additionally, this system will not necessarily work for non-student defamation victims. The system is aimed at college students, because these sites construct forums for individual schools. Thus, it is likely that the poster and victim live in the same state (if not the same residence hall). It will not necessarily work for those targeted from other states or countries and may not help victims of attacks on personal blogs.

Further, contrary to the successful cases discussed above, courts in some states have declined to force anonymous posters to reveal themselves. Concurrently, the system will not protect against statements that do not meet the technical legal definitions of defamation or I.I.E.D., but nevertheless impose significant harm on victims. Of course, even if the system works and some victims win massive judgments, these suits may induce no more deterrence among students than did the music industry’s lawsuits.

Such a system also presupposes that a victim is willing to go on the record in suing the poster. The requirement to file openly may discourage some victims. The Second and Ninth Circuits of the federal court system, as well as many state courts, allow anonymous filing of lawsuits when, among other things, the matter is very sensitive or personal, there is a possibility of retaliation for filing suit, the prejudice to the defendant is less than the harm of identification, and when the public interest is served by such anonymity. Such a standard could be used in these cases, even recognizing the irony of filing an anonymous suit to expose an anonymous poster. At the same time, courts must be vigilant at the dismissal stage, to protect against those who seek to use the system as a weapon by filing false claims.

Establishing such a system will be expensive and difficult. It cannot be accomplished without the support of a large organization and volunteer attorneys or law students. Defamation cases are complicated and based on differing state laws. The same could be said about the thousands of pages of federal and state tax codes. Yet, companies like TurboTax and H&R Block offer database-driven Web services that allow most taxpayers to quickly and accurately file federal and state returns without ever opening the tax code.

Reclaiming a Reputation

We recognize that establishing such a system will not be an easy sell. Even considering the above, and other valid criticism, we believe that our system will empower the many student victims who have no method of fighting back against anonymous posters. It will not be perfect, yet we cannot let the perfect be the enemy of the good. Colleges and universities can educate students on ways to employ this and other disaggregated solutions; encouraging the development of this system and educating students on its use can be part of that mission.

The attractiveness of such a system is that it would help student victims help themselves. The individualistic nature of the Internet, where amateur journalists pen millions of blogs while Wikipedia entries outnumber traditional encyclopedia articles many-fold, is not well-served by a super-regulator censoring content to protect defamation victims.

Colleges cannot protect students from all of the dangers imposed by the Internet. Rather, student victims need an inexpensive, user-friendly tool to level the playing field. Developing and marketing such a system will grant victims a much-needed gift: the opportunity to take back their reputations and return to living their lives.

Benjamin Bleiberg and Joseph Storch
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Benjamin Bleiberg is a judicial clerk in the United States District Court of the Eastern District of Pennsylvania. Joseph Storch is an attorney in the State University of New York’s Office of University Counsel. In addition to campus representation, he concentrates his practice on the legal issues surrounding emerging technologies. The views expressed here are their own and do not represent the views of the State University of New York or the federal court system.

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