INTERNET LAW BLOG

Entertainment Law:  The New York State legislature enacted a new statute specifically aimed at advertising in the music industry.  The Truth in Music Advertising Act, NY Art & Cult Aff. § 34.01, et seq., was effective as of September 14, 2007 and specifically proscribes that:

Internet Law:  The New Jersey Legislature recently passed the “Internet Safety Dating Act,” making it one of the first states to enact legislation of this nature, aimed at protecting against online predators.  Notably, the law applies to all websites that offer services to New Jersey residents.  A website, even if not based in New Jersey, must comply with the law’s edicts if it will have New Jersey residents that access or otherwise use the website.  The law became effective May 12, 2008.

The Internet Safety Dating Act requires an “Internet Dating Service,” to provide certain disclaimers on its website with regard to whether or not the site conducts criminal background screenings on website members.  Importantly, the Act defines an “Internet Dating Service” quite broadly.  Such a service is deemed to be any “person or entity directly or indirectly in the business, for a profit, of offering, promoting or providing access to dating, relationship, compatibility, matrimonial or social referral services principally on or through the Internet.”  This has been analyzed as including social networking websites.

Subject websites must provide a series of disclaimers, such as:

• • Providing specific safety awareness notifications that, without limitation, include a “list and description of safety measures reasonably designed to increase awareness of safer dating practices.”  Though the Act provides some flexibility in terms of how a website can accomplish this, it provides examples and suggestions for such a notification.

• • If the website will not be conducting criminal background screenings, it must disclose, clearly and conspicuously, to all New Jersey members the fact that it does not conduct such screenings.  The disclosure must be written in bold, capital letters in at least 12 point font.  The law further specifies how the disclosure needs to be sent to members, and mandates that it be sent through at least two of those forms.

• • On the other hand, if the website does conduct criminal background screenings prior to allowing a member to join the site, the website needs to include that as a disclosure on the website.  Again, this disclosure must be written in bold, capital letters in at least 12 point font.  This disclosure needs to be on all website pages used when a New Jersey member signs up.

• Further, if the website does conduct such screenings, it will need to disclose whether it nevertheless allows someone who is identified as having had a criminal conviction to enter the site and communicate with New Jersey members.  The law also mandates that it also provide notice to members that all criminal background screenings are not foolproof, that they may provide a false sense of security, and other disclosures along these lines.

The Internet Safety Dating Act was enacted under New Jersey’s Consumer Fraud statute.  Accordingly, a violation of the Act constitutes a violation of the New Jersey Consumer Fraud Act, and without limitation, a violator may be subject to treble (3x) damages.

We therefore recommend the following:

• • In light of the national (and international) reach of websites, we recommend that all companies that operate a website that might be construed as a dating or social networking site comply with the New Jersey law, regardless of whether it has a direct relationship to New Jersey.  Unless you are expressly prohibiting New Jersey residents from joining or using your site, arguably, by merely launching your website, you are offering your services to New Jersey residents and therefore need to comply with the Internet Safety Dating Act.

• All subject websites should immediately consult with counsel in order to have their screening protocols and disclaimers reviewed to ensure compliance with the Internet Safety Dating Act.

Comments/Questions:

ljm@gdnlaw.com

New Jersey Caselaw: In Suarez v. NJ.com, an unpublished opinion, the New Jersey Appellate Division recently found that a defamation plaintiff must prove damages even when he already proved that the comments were made with actual malice. The Court noted that there are times when a litigant does not need to prove damages in a defamation case but this case did not fall within that exception.

In the Suarez case, a statement alleged that the Ridgefield, New Jersey Mayor, a councilman and several police officers went to the author’s home at six o’clock in the morning, investigating an erroneous anonymous tip that he had an illegal apartment. The posting of this statement spurred numerous additional bloggers, many of whom expressed sympathetic comments. The Mayor of the town sued the anonymous writer for defamation, denying that he was ever involved in any such home inspection and alleging that his reputation had been harmed as a result of the statement. The writer admitted under oath that the statement was not true, confessing that the incident did not occur at his home but that it was merely a story he heard from his attorney and friend who was the prosecutor in the town.

Even though the writer made false statements, the Court did not permit the Mayor to proceed with his defamation case. As a public figure, the Mayor had a greater burden of proof. Essentially, he needed to prove that (a) the writer acted with actual malice in making the statements against the Mayor; and (b) he suffered actual damages as a result of the publication of those statements.

The law provides for added flexibility with regard to speech made about public officials. The First Amendment encourages speech by public officials and therefore requires actual malice by the speaker in order for a public figure to proceed with a defamation claim. Actual malice generally means making a statement with actual knowledge of its falsity or with reckless disregard of whether it was false. Thus, since the statements in this case were “of public concern,” the Court examined those statements more closely.

Nonetheless, the court noted that even if the court found that defendant acted with actual malice in making the statements, the plaintiff would still be required to prove that his reputation was actually damaged as a result. In the end, the court rejected the Mayor’s claims because he failed to provide sufficient information or other evidence as to how his reputation was actually damaged.

This case highlights the difficulty for a public official to win a defamation case with added scrutiny and additional elements that a public official must prove. Any person who believes that a defamatory statement has been made about them should seek the advice of counsel in order to determine whether the claim will be subject to such heightened scrutiny.

Comments/Questions: ljm@gdnlaw.com

© 2008 Nissenbaum Law Group, LLC

New Jersey Caselaw: Through State v. Reid, 194 N.J. 386 (2008), the New Jersey Supreme Court recently issued a landmark holding that Internet subscriber information is protected from disclosure because it is considered confidential. The confidentiality can be overcome by a demonstration of relevancy, however, the person who is the subject of the request must be given a reasonable opportunity to contest the turn over at a judicial hearing.

In Reid, the State prosecuted a case where a company alleged that a former employee was stealing its proprietary information using a confidential Internet password. The underlying act was traced to a Comcast IP address. IP addresses are generally anonymous, and the identity of the person or persons who act through a particular IP address is not generally evident. Comcast refused to provide the user information relating to that IP address when initially requested. However, when a subpoena was issued to it, Comcast revealed the defendant’s Internet subscriber information. Notably, Comcast’s response to the subpoena was without notice to the defendant and without a judicial hearing. The defendant then sought to suppress this information as evidence on the basis that Comcast had revealed the user information in a manner that violated her constitutional right to privacy.

The New Jersey Supreme Court determined that while it might not have violated her privacy right under the United States Constitution, the New Jersey Constitution provides enhanced privacy rights that were violated. Specifically, Article I, Paragraph 7 states that people who live in New Jersey have a right of privacy; while the federal constitution does not explicitly guaranty such a privacy right. In fact, the United States Supreme Court has held that the Fourth Amendment to the Federal Constitution is not violated by a subpoena seeking such information.

However, since New Jersey’s Constitution provides this an enhanced right to privacy, its State and Municipal Courts are required to provide notice to the subject of the subpoena and an opportunity to contest the production. In such a hearing, the relevancy of the material sought is the key to determining whether production is warranted. Importantly, this protection extends to more than just Internet service provider records, but also long-distance phone billing records and bank records, as well. In reaching this holding, the Court noted the sensitive and personal information that can be communicated through these methods of communication that are now ingrained into our daily lives.

Comments/Questions: ljm@gdnlaw.com

Commentary: School bureaucracies have one overriding goal: to exert control over student life sufficient to create an atmosphere conducive to learning. However, when that control is exerted outside school premises, students may legitimately question whether it is wise or even legal for the school to have such authority.

Internet bullying is a perfect case in point. There are many examples of the ways in which it can invade the process of learning: the teacher in Florida who was the subject of a sexually demeaning post by her student (resulting in a $1000 judgment); or the principal in Pennsylvania who sued over a MySpace posting that posted derogatory comments about him (suspension of the student was upheld by the trial court and is now on appeal).

However, there have also been cases in which a student has sued the school district for impairing his First Amendment rights. This has involved everything from a student who was forced to leave the school because he posted rap songs that the school district found objectionable to a young man who was temporarily forced to leave a school because he posted negative comments about the school administration. Each of these instances resulted in an award or settlement involving money damages to the student.

The dividing line seems to be whether a credible case can be made that the student’s Internet posting is linked to disrupting the school’s efforts to create an atmosphere conducive to learning. In other words, although the behavior occurs outside of school, could its impact boomerang back to the scholastic environment? Without that element, it appears that the courts will generally favor the student’s First Amendment rights to Internet speech. In such instance, the courts appear reticent to enforce the school’s right to regulate the extracurricular behavior of its students.

Comments/Questions: ljm@gdnlaw.com

Download “Wrongful Posting on the Internet: The Privacy You Save Could be Your Own”, NJ Lawyer Magazine, April 2008