New Georgia Laws

It is no surprise to litigators in Georgia and across the country that unguarded messages are often sent by people that later come back to damage their cases. For this reason, discovery of these damaging messages are a top priority in civil lawsuits. Of note, people tend to post intimate information on their social media pages. For this reason, social media has become a particular target in civil litigation and lawyers can try to go after those of opposing parties and witnesses in two ways — through formal discovery procedures or self help.

Seeking Social Media Content Through Formal Discovery

Courts across the country have held that social media providers (think FaceBook, Instagram, Twitter, and LinkedIn, among others) are barred under the federal Stored Communications Act (SCA) from responding to civil subpoenas requesting social media content. That being said, some courts have ordered the opposing party to consent to the social media company’s disclosure agreement and have a consensual request sent to the provider. Without this workaround, social media content is only discoverable from the individuals who posted or received the information.

Notably, restricted social media content is neither private nor privileged in a legal sense, and those who delete or destroy accounts during litigation to avoid discovery have faced sanctions for spoliation of evidence. That being said, courts are hesitant to allow broad requests through all of a person’s private social  media content. Generally, discovery of social media content is allowed when the content directly sheds light on the disputed facts in the underlying lawsuit; if needed, the discovery can be subject to a protective order.

Using Self-Help to Access Social Media Content

It is true that there is no specific ethical rule that prohibits lawyers from looking online at publicly available social media content of opposing parties or witnesses. That being said, seeking private social media content that has been restricted to a limited audience can result in issues. An attorney can ask a friend of the opposing party or witness — meaning, someone who has been granted online access to the private content — to voluntarily share the information. This can not be done through misrepresentation, trickery, or any other unethical methods, though. Attorneys should not ask staff to engage in any activity that would be prohibited if the attorney were conducting it him or herself. Indeed, unauthorized access to private social media content may result in a claim under federal law — specifically, the SCA or Computer Fraud & Abuse Act (CFAA) or applicable state law.

The Atlanta-based 11th Circuit Court of Appeals rejected how CNN and other medial companies demanded the special dismissal provision found in Georgia’s anti-SLAPP statute in a defamation case. The loss of this important appeal will – at the minimum – make it easier to file suit against the media in federal court particularly in Alabama, Florida, and Georgia. CNN is headquartered in Atlanta, Ga.

The Underlying Case

The appeal to the Eleventh Circuit is the result of several reports on Anderson Cooper 360 in June 2015 on the infant mortality rate for open-heart surgery at St. Mary’s Medical Center – a West Palm Beach, FL hospital. The show claimed St. Mary’s death rates were three times the national average. The reporting sparked defamation lawsuits from the former chief executive at the hospital who was forced to resign as a result of CNN’s report. The executive claimed that CNN made an unfair comparison of hospitals that conduct both open-heart and closed-heart surgeries which, had it been properly made, would have adjusted for risk and changed the death rates.

CNN argued that the plaintiff could not meet the “of and concerning” standard required by a defamation suit because executive was not mentioned by name in the series. CNN also argued an “academic” disagreement that the methodology of how to calculate the mortality rates is a non-actionable opinion. These arguments, however, were placed on the back burner as a result of the standard that the Georgia federal judge must decide whether or not the case should be dismissed. Like other states, Georgia has tried to reduce frivolous First Amendment lawsuits by passing an anti-SLAPP statute. SLAPP stands for Strategic Lawsuits Against Public Participation. Under the statute, the plaintiff bears a higher evidentiary burden above and beyond those imposed by the federal rules of civil procedure. Accordingly, the 11th Circuit held the SLAPP statute should not apply. Notably, other federal circuits around the country – including the First, Second, Fifth, and Ninth – have ruled that state SLAPP laws should apply in federal courts.

Defamation Explained

Defamation of character is a term that encompasses any statement that hurts another’s reputation. When this happens in writing, it is referred to as “libel”; when it occurs in verbal form, it is referred to as “slander.” While defamation is not a crime, it is a civil wrong – or a tort. An individual who has been defamed has a private right of action to sue the person (or entity) who did the defaming for monetary damages.

Nevada’s law that governs defamation tries to balance two competing interests: People should be able to speak freely without fear of litigation over each mistake, insult, or disagreement, while a person’s life should not be ruined by lies that are told about them. While defamation is governed by state law, and varies from state to state, a victim of defamation must establish that the statement was published, is false, was injurious, and is unprivileged in order to succeed in a defamation lawsuit. Because the public has the right to criticize them, public officials have less protection from defamation. In addition to proving the four elements previously mentioned, a public official must also prove the defendant acted wit

It was only a matter of time until social media websites like Facebook, Twitter, Instagram, and LinkedIn would pose some complex legal issues.

In a 4-3 decision, the Florida Supreme Court held that a judge does not automatically need to recuse him or herself from hearing a case because of a Facebook friendship with one of the lawyers. A Florida law firm sought to force the recusal of a Miami-Dade Judge because she was Facebook friends with a lawyer representing a potential party to the lawsuit as well as a potential witness. The Court affirmed a decision last year by the state’s Third District Court of Appeal.

The Decision

The Florida Supreme Court reasoned that, in the most basic sense, an online social media friendship is a digital connection between people. The two may not be friends in the more traditional sense of the word. It is common for Facebook and other social media friendships to be more casual than traditional friendships. Likewise, they often are less permanent than traditional friendships. The Florida Supreme Court noted the connection on Facebook and other social media “may be as fleeting as the flick of a delete button.” The Court noted that a mere existence of a Facebook friendship between an attorney and a member of the judiciary – without more – does not reasonably equate a close friendship. Writing for the majority decision, Chief Justice Charles Canady ultimately concluded that no reasonably prudent person would be afraid that he or she could not receive an impartial and fair trial solely based on the fact that a judge and an attorney were Facebook friends.

Justice Jorge Labarga, concurring, strongly urged the judiciary to not participate in Facebook. Justice Barbara Pariente dissented, stating she would adopt a strict rule mandating that judges recluse themselves in such circumstances.

Past Cases

The Florida Supreme Court’s decision falls in line with other Florida precedent addressing the issue of traditional friendships. Under Florida law, the mere allegation of a friendship between a member of the judiciary and an attorney or a litigant, in and of itself, is not sufficient for disqualification.

Judges should not friend lawyers on social media if they appear before them in court, according to advice from the Florida Judicial Ethics Advisory Committee (FJEAC). The Florida Supreme Court said, however, that the FJEAC position is in the minority. The Court went so far as to note that the committee’s concern regarding friendships on social media sites to be “unwarranted.”

While nursing mothers have had to endure shaming whilst breastfeeding in public – something that is likely not going to end any time soon – now they have the law on their side. Earlier this year, public breastfeeding became legal in all 50 states. This became possible thanks to two states – Idaho and Utah – that passed laws that protect breastfeeding mothers, according to a news report published by USA Today.

National Breastfeeding Month

August is National Breastfeeding Month. Accordingly, below is a list of rights and protections nursing mothers have in the United States.

• Mothers can now breastfeed anywhere, any time, in all 50 states, as well as the Virgin Islands, Puerto Rico and Washington, D.C.;
• 17 states have laws on the books that address breastfeeding mothers who are called for jury duty; some allow postponement of jury duty while others allow an outright exemption;
• Under ACA, the cost of breastfeeding pumps is covered at no cost to the mother, although the insurer can choose the brand and type (electric, manual or rental) that is covered under the policy;
• Lactation consultant costs are also covered at no charge by health insurance under ACA, including meetings with in-network consultants, domestic violence counseling, and gestational diabetes testing;
• Employers must provide break time for nursing mothers and a place to pump breastmilk, for up to one year after the baby’s birth, according to the Department of Labor;
• 29 states, in addition to the District of Columbia and Puerto Rico, have laws on the books regarding breastfeeding in the workplace;
• Six states, in addition to Puerto Rico, have encouraged the development of or implemented breastfeeding awareness education campaigns. These include California, Illinois, Minnesota, Missouri, Mississippi and Vermont.

Under Nevada law, the statutes note that breastfeeding a child is not considered a violation of indecent exposure laws, and that a mother may breastfeed in any private or public location, where the mom is otherwise allowed to be located.

Other Protections for Mothers

It is estimated that at least 180 countries across the globe have laws that guarantee some type of paid maternity leave. Only nine countries do not provide this benefit – Papau New Guinea, Surinam, six Pacific island nations, and the United States. In America, four states – California, New Jersey, New York, and Rhode Island – offer paid leave that is funded through payroll taxes.

The Bureau of Labor Statistics (BOL) reports that more than 41 million U.S. workers can not take a paid sick day to care for a child who is ill; moreover, a mere 12% have access to paid leave. According to the Atlanta-Journal Constitution, the state of Georgia ranks 44th in the nation when it comes to working mothers. And, under Georgia state laws, maternity leave is not mandatory; neither mothers nor fathers have extensive rights under its laws. Moms generally have the option to buy short-term disability insurance before getting pregnant – and this is how they are able to earn maternity leave after the baby is born. That being said, dads are unable to file a short-term disability claim under these insurance policies for parental leave.