Internet/ Social Media
This is a guide to some important internet related laws that generally apply to residents of California and businesses who serve residents of California. As always, speak to a lawyer before taking any major actions (or decisions not to act) based on this information.
HERE’S WHAT YOU SHOULD KNOW ABOUT LAWS REGARDING THE INTERNET, EMAIL, AND SOCIAL MEDIA IN CALIFORNIA
Spam/Junk email: Companies or organizations may not send you deceptive or abusive commercial emails.1CAN SPAM Act, 15 U.S. Code Chapter 103
Can a company or organization send me unsolicited emails?
They CAN send you unsolicited commercial email, but the email must:
- identify that the message is an advertisement
- include a valid, physical address of the sender
- provide a way to easily opt-out of future emails (like an “unsubscribe” link). Once you opt-out, they can’t email you again unless you explicitly give them permission.2CAN SPAM Act, 15 U.S. Code Chapter 103
2. Social Media & Employers
Is my employer allowed to restrict my right to use my personal social media on my own time?
In some ways, yes. If you complain about your employer on Facebook, etc., they may be able to legally fire you. But you DO have the right to use social media for the purpose of getting coworkers to join together to address work-related issues and share information about pay, benefits, and working conditions.3National Labor Relations Act
NOTE: This applies whether you are in a union or not.
3. Making threats on social media
It is illegal to use social media to make a serious threat to harm or kidnap another person. The penalty is up to 5 years in prison.418 U.S. Code Sec 875(c) But the person making the threat must actually intend it as a threat, rather than simply “expression.”
4. Privacy and the Internet/Social Media
Can someone post a picture of me that I don’t like?
If you are in a public place, people have the right to take photos of you and use them for noncommercial purposes. The definition of what is public vs private gets very context specific, but a private place is generally one where most people would have an expectation of privacy. But whether in public or not, if someone tries to make money from a photo of you without getting your consent, then you can probably sue them for that.
Is my employer or prospective employer allowed to ask for my personal social media passwords or to have me access my social media while he/she watches?
NO. In California, whether you are an employee or prospective employee, your (prospective) employer may not require or request you to disclose your username or password for any social media, emails, texts or other similar communication. Your employer also may not ask you to access these in their presence so they can see it.5Cal. Labor Code Sec 980
Exceptions: your employer may do these things if part of an investigation into misconduct, or if necessary to access an employer-provided device.
Personally identifiable information includes any of the following: first & last name, address, email address, phone #, Social Security #, any other contact information.
If a website gets hacked, and someone gets my personal information, does the website or company need to notify me?
Yes.7Civil Code Sec 1798.82 Companies and websites must notify you when they experience a data breach and someone steals your information, including
- your name in combination with an account number8including social security #, Driver’s license #, bank account #, credit/debit card #, medical information, or health insurance info
- your username or email address, in combination with a password
Posting nude photos of someone on the Internet
It is illegal to take nude photos of someone without that person’s consent (unless the person is nude in public).9Cal Civil Code Sec 1708.8(b)
- Even if you didn’t take the photos, it’s illegal to pay the person who took the photos, knowing that the pictures were taken in violation of the person’s privacy, and then post the pictures online.10Cal Civil Code Sec 1708.8(f)(1)
- It is NOT illegal for a different person to repost the photos once they have already been posted.11Cal Civil Code Sec 1708.8(f)(3)
- Revenge porn: If you agree to have someone take nude pictures of you, where you have an understanding that the photos will remain private, it is illegal for that person to then post the photos online (or otherwise send them to people) intending to cause you emotional harm.12SB255, codified at Cal Penal Code Sec 647(j) It is a crime with the possibility of up to 6 months in jail and/or $1,000 fine; may suspend driver license. You can also sue a person for it beginning July 1, 2015.13AB2643, to be codified at Cal Civil Code Sec 1708.85
Privacy of Children on the Internet: See our Key Laws to Know for Parents
SEE MORE ON PRIVACY RIGHTS IN CALIFORNIA
5. Jamming wi-fi or cell
It is illegal for any person or company to jam, block, or interfere with another’s Wi-fi or cell signal.1447 U.S.C. Sec 333, also see FCC’s jammer enforcement
You have the right to protection against stalking and cyberstalking that makes you fear for your life or health. The police have an obligation to investigate any such stalking, and if they find a credible threat, to prosecute the offender. (Unfortunately, if the offender lives outside the U.S., there is little law enforcement can do at this time).1518 U.S. Code Sec 2261A
7. Copyright & the Internet
Do I have rights to content I create and put on the internet or social media?
In general, yes. Copyright law applies fully to the internet, but it does get tricky, particularly for social media. The original content you create and post on the internet and social media, including blog posts, status updates that you write*, or photos/videos that you have taken or created**, is generally your property and you own the copyright. This means you get to decide what to do with the content, and what others do or don’t do with it.
*Writings need to be a substantial length to be given copyright protection. There is no exact number of characters or words to qualify; a tweet probably is too short, but it’s not impossible to copyright a tweet.
**You generally own a photo when you have pressed the button to take the photo. It doesn’t matter if you are in the photo or not. However, make sure the subject matter of the photo doesn’t violate privacy law.
Can I post someone else’s picture, video, or writing on my social media?
Simply retweeting/clicking “share” under a Facebook post is most likely fine, as it can be implied that the creator granted permission by putting it on social media (and many social media Terms of Service say that by posting something, a user grants others a license to share it).
But if someone has NOT put their work on social media, you should probably not do it for them. You can’t use someone else’s content without their permission, unless it falls under “fair use.” If you can’t get the creator’s permission, stating who created the work (“attribution”) and linking to the creator’s website is a very good idea. Although even doing this, your post could still violate the creator’s rights. But it’s up to the creator of the content to decide whether to enforce their rights.
What should I do if I see a website stealing my copyrighted material?
You have the right to require that any website that displays your copyrighted materials without your permission quickly remove it from the site.16Digital Millennium Copyright Act Find out when you “own” material, and more at our Copyright page.
To get your copyrighted material taken down from a website, you simply need to send the website or host of the website a “DMCA Takedown Notice.” See here for details on takedown notices.
Help! I think I’ve been hacked! What do I do?
If you have evidence of a hacking and can identify who did it (or is continuing to do it), the law allows you to get authorities to take immediate action to disable the hacker.17Computer Fraud & Abuse Act; Cal Penal Code Sec 502 Contact local law enforcement or the Internet Criminal Complaint Center (see below).
9. Online shopping
Shipping time: When you buy something on the internet, the seller must ship the goods within the time frame it gives you (or within 30 days), otherwise you have the right to cancel the purchase. 18Federal Trade Commission rule found at Code of Federal Regulations, Title 16, Part 435
Cybersquatting is when someone buys a domain name that is the same or similar to someone else’s trademark, for the purpose of taking financial advantage of that trademark. Find out more here.
11. User generated content
Is a website (like facebook) legally responsible for the comments or posts that other people make?
Generally, no, a website, social media, or other online platform would probably not be held liable for posts, comments, etc by its users which may violate various laws.19Communications Decency Act Section 230 For example, if someone posts illegal threats of violence, or defamatory statements, the website or other online platform would generally not be liable for these.
Specifically with regard to users’ violations of intellectual property, such as copyright or trademark, the website would be protected as long as it complies with DMCA takedowns (see above for more).
12. Internet Service Providers & Net Neutrality
Can my internet service provider (ISP) charge me different rates based on the websites I visit or even slow down or block certain websites?
As of December 14, 2017, yes they can. Before this date, the law in place was based on “net neutrality” which prohibited internet service providers (such as cable or cell phone company) from treating data differently based on the content. But on December 14, the Federal Communications Commission (FCC) decided to repeal net neutrality and allow ISPs to have more control over the content consumers can access. ISPs can now create pricing structures similar to cable TV packages, or simply make it much slower and more difficult to access (or even block) certain websites or data.20https://www.nytimes.com/2017/12/14/technology/net-neutrality-repeal-vote.html
Related story: 22 states have sued to block the FCC’s repeal of net neutrality. We will keep you updated on how that goes.
I have a website. Can an ISP charge me for the right to allow its customers to access my website?
As mentioned above, because the Federal Communications Commission got rid of Net Neutrality, now ISPs can force website owners to pay to ensure that the ISP’s customers can access the website. Or they can even block your website altogether!
EXERCISE YOUR RIGHTS
- If you believe you have been hacked, contact local law enforcement (use non-emergency number unless your physical safety is at risk) and/or file a complaint with the Internet Criminal Complaint Center
- File a complaint about wi-fi or cell signal jamming
- Find a social media lawyer, privacy lawyer, or copyright lawyer
- If you are a victim of stalking or cyberstalking, you can report it to local police or to the Department of Justice.
- If the product you bought online didn’t ship when the seller said it would, file a complaint here.
- File a complaint about spam email here.
References [ + ]
|1, 2.||↑||CAN SPAM Act, 15 U.S. Code Chapter 103|
|3.||↑||National Labor Relations Act|
|4.||↑||18 U.S. Code Sec 875(c)|
|5.||↑||Cal. Labor Code Sec 980|
|6.||↑||California Online Privacy and Protection Act, Business & Professions Code 22575-22579|
|7.||↑||Civil Code Sec 1798.82|
|8.||↑||including social security #, Driver’s license #, bank account #, credit/debit card #, medical information, or health insurance info|
|9.||↑||Cal Civil Code Sec 1708.8(b)|
|10.||↑||Cal Civil Code Sec 1708.8(f)(1)|
|11.||↑||Cal Civil Code Sec 1708.8(f)(3)|
|12.||↑||SB255, codified at Cal Penal Code Sec 647(j)|
|13.||↑||AB2643, to be codified at Cal Civil Code Sec 1708.85|
|14.||↑||47 U.S.C. Sec 333, also see FCC’s jammer enforcement|
|15.||↑||18 U.S. Code Sec 2261A|
|16.||↑||Digital Millennium Copyright Act|
|17.||↑||Computer Fraud & Abuse Act; Cal Penal Code Sec 502|
|18.||↑||Federal Trade Commission rule found at Code of Federal Regulations, Title 16, Part 435|
|19.||↑||Communications Decency Act Section 230|