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64 — The Elon Journal of Undergraduate Research in Communications • Vol. 1, No. 2 • Fall 2010

tion they had created.27 What’s more troubling is that Grimmelmann reports, “Facebook has trouble control- ling its own employees, who treat access to profile and user-activity information as a ‘job perk.”28 This kind of unwanted disclosure has recently led to a number of state and appellate cases, which will be discussed in greater detail below. As indicated earlier, the courts have received little guidance from the federal government in ruling on this issue.

VI. “Cyberbullying:” a product of unwanted disclosure

“Cyberbullying” has emerged as a prominent Internet safety concern over the course of the past several years. A United States research center dedicated to the study and prevention of cyberbullying has de- fined it as, “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices.”29 Therefore, cyberbullying clearly constitutes as a violation of the privacy rights that protect against the disclosure of private facts that would be considered highly offensive to a reasonable person, and the plac- ing of someone in a false light. Facebook and MySpace are two mediums where cyberbullying has occurred quite frequently. The lack of website surveillance, and an effective legal response, has aided in facilitating this type of behavior. This has resulted in the filing of a number of recent lawsuits. The most current being, Finkel v. Facebook.30

There, teenager Denise Finkel sued four high school students, their parents, and Facebook argu- ing that they were liable for the production of defamatory statements made about her. The suit began after Finkel discovered that the four students had created a Facebook group entitled, “90 Cents Short of a Dollar.” Statements made within the group declared and implied that Finkel “was a woman of dubious morals, dubi- ous sexual character, having engaged in bestiality, an ‘IV drug user’ as well as having contracted the H.I.V. virus and AIDS.”31 Finkel asserted in her complaint that Facebook should be held accountable for allowing the defamatory material to be published on its website claiming, “[Facebook] should have known that such statements were false and/or have taken steps to verify the genuineness of the statements.”32 Predictably, the court granted Facebook’s motion to dismiss the charges as a result of the protection supplied under Sec- tion 230 of the CDA. However, Finkel’s attorney’s response raised an interesting argument. They chose to highlight that in its terms of service Facebook claims ownership of the material posted on their website. As a result, “Facebook wants to use the CDA as a shield to immunize itself form being sued for defamation due to any postings of its users while also claiming ownership of the content posted on its site.”33 To a large extent, these assertions are meritless and the court rejected this response due to the fact that “Ownership of con- tent plays no role in the Act’s statutory scheme.”34 Ultimately, there is no precedent to support Finkle’s claim that ownership should establish liability under Section 230 of the CDA. However, this argument shows that Facebook has been permitted to, as the cliché goes, have its cake and eat it too. Policies should be enacted to prevent Facebook from claiming ownerships over its materials and at the same time being absolved of responsibility over the very material it owns.

Current federal policy has also ineffectively punished individual users who have abused their use of 27 I-Newswire, The Shocking Truth of Facebook. 28 Grimmelmann, “Saving Facebook” 1183. 29 Cyberbullying Research Center. Web. <http://www.cyberbullying.us/index.php>.

30 “Finkel v. Facebook.” Citizen Media Law Project. Berkman Center for Internet & Society, 3 Mar. 2009. Web.

31 “Finkel v. Facebook.” Cmplt. ¶ 23. 32 “Finkel v. Facebook.” Id. ¶ 28.

33 Altschul, Mark M. “Finkel Opposition to Facebook Motion to Dismiss.” Letter to Supreme Court of the State of New York. 16 Feb. 2009. Citizen Media Law Project. Citizen Media Law Project. Web.

<http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-03-26-Finkel%20Opposition%20to%20Face- book%20Motion%20to%20Dismiss.pdf>.

34 Alonso, Morris D. “Notice of Motion to Dismiss.” Letter to Altschul & Altschul & Orrick Herrington & Sut- cliffe. 23 Apr. 2009. Citizen Media Law Project. Web. <http://www.citmedialaw.org/sites/citmedialaw.org/ files/2009-04-23%20Finkle-%20Schwartz%20notice%20of%20motion%20to%20dismiss.pdf>.

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