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Think Before You Click - Facebook's “Like” Button

Jun 14, 2012
Maggie Tamburro

It's about a four-letter word

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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?

This article was originally published in BullsEye, an expert witness and litigation news blog published by IMS ExpertServices. IMS ExpertServices is a full service expert witness and litigation consultant search firm, focused exclusively on providing best-of-class experts to attorneys. We are proud to be the choice of nearly all of the AmLaw Top 100.

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