Privacy for the PeepleOctober 27, 2015
Public reaction to the latest app startup, Peeple, and its CEO, Julia Cordray, has been universally negative, despite the CEO’s earnest insistence that the app’s central purpose is “positivity.” The concept behind the idea (and the public’s discomfort with it) has been trending on almost every social and mainstream media outlet for weeks, and has been collectively referred to as the “Yelp for People.”
The app’s purpose is to allow users to rate individuals much the way they would a restaurant: one a one-five star rating system. Users must be over the age of 21 and have a Facebook account. All reviews must be posted under a user’s real name. As originally conceived, anyone you had ever given your phone number to, or anyone who could locate it in a directory, could create a Peeple profile for you. Once your profile was created, any user can post a review of you, whether you gave them your phone number or not and regardless of whether you yourself used the application.
Beyond the social morass associated with the basic concept of reducing the value of a human being to a star rating system, many critics were extremely concerned about the fact that there was no way to opt out of the app, and the privacy issues this would raise. However, stung by the public backlash against the inability to opt out of the application, Peeple’s CEO walked back her proposal, now insisting that users must opt in to have a profile, may opt out at any time and that only reviews approved by a user will be posted publicly. Many aspects of the application are still unclear, as the Peeple representatives have not completed beta testing, and the app will not be released until at least November 2015.
Though the ability to opt out of the app and preemptively approve or deny reviews addresses the foremost concerns that led to a 7,000 signature petition against the app last week, the issue of privacy in the public space of social media is still worth reviewing.
A Safe Haven for Peeple
Upon learning of the application, many have asked “how is this even legal?” Answer: Section 230 of the Communications Decency Act of 1996. Peeple will be able to take advantage of the same legislation that protects other social media sites like Facebook and Twitter from liability for the negative actions of their users. The Communications Decency Act (“CDA”) provides immunity from claims against a web host for statements posted by a third party user, provided that the web host does not serve as the provider of, or assist in the provision of, the libelous content. What the CDA does in practice is to direct liability away from the providers of interactive computer services, such as web hosts (Facebook, Twitter, soon to be Peeple) who provide online forums for content created by others. Such liability is directed instead to “the information content providers” who create and upload content to websites, i.e.; you, the user, the author of comments and reviews.1
The CDA will provide Peeple with a powerful defense as an interactive service provider (“ISP”). Courts have consistently ruled that short of copyright infringement or the posting of obscene materials, ISPs have no liability for content provided by a third party. Peeple’s escape from liability for the anticipated storm of hatred and bullying following its launch does not mean, in practical terms, that Peeple would escape related contingencies and inconveniences. Though the CDA would likely allow Peeple to prevail should a disgruntled victim of its reviews sue, the time and financial resources necessary to defend against such claims is not altogether negligible, and given the pre-unpopularity of the as yet non-existent app, it seems likely that more than a few cases could come up.
Concerns for Posters
While the CDA will raise serious barriers to aggrieved parties seeking satisfaction from Peeple, it does pin the liability on the author of the review. It would behoove such authors, and those on any website, application or social media forum that allows for comments, posts and reviews, to be aware of the causes of actions individuals have against each other. There are several tortious causes of actions available, including defamation and the invasion of privacy, among others.
Defamation: “A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him”2. Such communications appearing in print are referred to as libel; spoken communications are referred to as slander.
- a false and defamatory statement concerning another;
- an unprivileged publication to a third party;
- fault amounting to at least negligence on the part of the publisher; and
- either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
No cause of action exists when statements are expressions of an opinion rather than fact.5 This is a blurry line when it comes to online reviews. Is it an opinion that service at this restaurant is slow, or is it a fact that the service at this restaurant is slow? Is it an opinion that your former intern was a womanizer, or is it a fact that the intern was a womanizer?
Further, even if the author of a review is caught making a false statement, the author must be at least negligently, if not intentionally, posting a false statement. If the author makes a false statement that to the best of the author’s knowledge is true, or if the author acts with the level of care that someone of ordinary prudence would have exercised under the same circumstances, then the author will not be held liable.
While the CDA prevents a cause of action against the Peeple’s app, libelous language posted to the app does give rise to a cause of action against the individual poster. As such any party posting a “review” should carefully think about a) whether they are stating a fact or opinion and carefully draft their language to reflect which one they are communicating, b) whether what they are posting is actually true, and whether they can prove its true, and c) whether making the statement would potentially cause special harm to the subject of the review or comment.
Invasion of Privacy: One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.6
- Unreasonable intrusion upon the seclusion of another. “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another [or that person’s] private affairs or concerns, is subject to liability to the other for invasion of [that person’s] privacy, if the intrusion would be highly offensive to a reasonable person.”7
- Appropriation of the other’s name or likeness. “One who appropriates to [that person’s] own use or benefit the name or likeness of another is subject to liability to the other for invasion of [that person’s] privacy.”8
- Unreasonable publicity given to the other’s private life. “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of [that person’s]privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”9
- Publicity that unreasonably places the other in a false light before the public. “One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of [that person’s] privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”10
Unlike defamation, truth is not a defense against an invasion of privacy. As such, if an injured party can prove injury due to a disclosure of private information, there is a strong cause of action against the poster. Social media users should think twice before dragging private individuals into the limelight.
For more information on privacy concerns, please contact Faith D. Kasparian.
1 Xcentric Ventures, L.L.C. v. Smith, 2015 U.S. Dist. LEXIS 118143, *40 (N.D. Iowa Sept. 4, 2015)
2 Restatement (Second) of Torts § 559 (1977).
3 Restatement (Second) of Torts § 558 (1977).
4 New York Times v. Sullivan, 76 U.S. 254 (1964) (For public officials, the burden of proof is that the plaintiff must show the defendant made the statement with knowledge that was false, or in “reckless disregard”. Actual Malice is required.)
5 Gertz v. Robert Welch, Inc. (1974)
6 Restatement (Second) of Torts § 652(A-E) (1977)
7 Restatement (Second) of Torts § 652(B) (1977)
8 Restatement (Second) of Torts § 652(C) (1977)
9 Restatement (Second) of Torts § 652(D) (1977)
10 Restatement (Second) of Torts § 652(E) (1977)