Contracting Correctness: A Rubric for Analyzing Morality Clauses

Morality clauses give a contracting party the right to terminate if the other party behaves badly or embarrassingly. A curious product of twentieth-century Hollywood, these contract clauses have traditionally been used to control the antics of entertainers and athletes. The current politically-sensitive historical moment, combined with the internet’s ability to broadcast widely and permanently, has put everyone’s off-duty speech, conduct, and reputation under the microscope. Media reports detailing people’s digital falls from grace abound. For fear of negative association, businesses are more attuned than ever to the extracurricular acts of their agents and associates—and are increasingly binding them to morality clauses that allow for abrupt separations. However, morality clauses have largely escaped judicial and academic scrutiny. Perhaps due to the hefty bargaining power of their traditionally famous parties, most courts have generally found these clauses enforceable with fleeting analysis. Outside of the sports and entertainment industries, academic literature on the morality clause is scant. We ignore morality clauses at our peril. Like non-compete clauses, which suffer from well-documented overuse and overbreadth, morality clauses can be socially harmful. Their unrestricted use allows and invites unpredictability, bad faith, and broad limitations on expression, privacy, and other liberties. This is especially true when imposed on low-profile agents with little bargaining power. Unlike the well-trodden area of non-competes, there is no uniform rubric for assessing whether and to what extent morality clauses are enforceable, fairly imposed, and lawfully interpreted. This Article addresses this gap, offering to courts and jurists alike a five-factor test by which to determine the validity of morality clauses in a world where reputation pervades and the line between home and office is blurred

Digital Self-Ownership: A Publicity-Rights Framework for Determining Employee Social Media Rights

Imagine an upandcoming company hires you as one of its first employees. Passionate about your employer, you put in long hours doing everything from marketing to accounting to event planning. You are also proud of your employer\u27s product, so you begin to publicize it to your friends through your social network accounts. (In fact, the company\u27s founder is also one of your Facebook friends.) You tell your friends about the product launch, invite them to marketing events, and eventually blog about your industry, amassing a significant social media following while creating buzz about your employer. But one day, during layoffs unrelated to your own efforts, you are fired. As you walk out the door, your supervisor asks you to return the office keys, your parking pass, and...administrative rights to your social media profiles. Can this be

Two Notions of Privacy Online

Users of social networking websites tend to disclose much personal information online yet seem to retain some form of an expectation of privacy. Is this expectation of privacy always unreasonable? How do users of online social networks define their expectations of privacy online? These questions were the impetus behind an empirical study, the findings of which are presented in this Article. The project, simultaneously conducted in Canada, at Ryerson University, and in the United States, at the University of Miami, consisted of a survey regarding personal information protection and expectations of privacy on online social networks (OSNs). Approximately 2,500 young adults between the ages of 18 and 24 were surveyed about the personal information they post online, the measures they take to protect such information, and their concerns, if any, regarding their personal information. Respondents also reacted to several hypothetical scenarios in which their privacy was breached on an OSN by measures both within and beyond their control. The theoretical assumption underlying this research project is that two prevalent and competing notions of privacy online exist: one rooted in control and the other in dignity. Of the two, the idea of privacy as control over one\u27s personal information has, to date, been predominant. Legislation, regulation, corporate policy, and technology are often analyzed and evaluated in terms of the measure of control offered to individuals over their personal information. Leading OSNs, such as Facebook and MySpace, propagate a notion of privacy as user control. However, online social networking poses a fundamental challenge to the theory of privacy as control. A high degree of control cannot preclude the possibility that online socializers would post unflattering, defamatory, or personal information about each other, and that this information would in turn be available to a large, if not unrestricted, online audience. Many online socializers post personal information seemingly without much concern over the loss of control, yet it seems that online socializers react with indignation when their personal information is accessed, used, or disclosed by individuals perceived to be outside their social network. The findings presented here indicate indeed that online socializers have developed a new and arguably legitimate notion of privacy online, that if accepted by OSNs, will offer online socializers both control and protection of their dignity and reputation. We call this notion network privacy. According to network privacy, information is considered by online socializers to be private as long as it is not disclosed outside of the network to which they initially disclosed it, if it originates with them, or as long as it does not affect their established online personae, if it originates with others. OSNs, as businesses profiting from socializing online, are best positioned to offer online socializers, often the young and vulnerable, effective protection in accordance with their notion of network privacy above and beyond regular measures of personal information control, and they should be required to do so

The Right to be Forgotten: Who Decides What the World Forgets?

In May 2014, the Court of Justice for the European Union ( CJEU ) surprised the global cyber law community by holding that search engines like Google are controllers of the processing of personal data under the European Union Data Protection Directive. This means that they are obliged in some circumstances to remove links from search results that pertain to information that infringes on an individual\u27s rights under the Directive. This obligation has come to be referred to as an aspect of a digital right to be forgotten. The search results in question related to a mortgage sale of property in a bankruptcy that had taken place in 1998. In 2010, links to a Spanish newspaper\u27s advertisement of the sale showed up prominently in Google search results and were no longer relevant and arguably damaging to the data subject. The case sparked global debate about who should ultimately be responsiblefor the protection and erasure ofprivate information online. The practicalresult of the decision leaves much discretion in the hands of online entities, such as Google, Bing, and Yahoo!, to implement their own internal proceduresfor protecting personal data on the basis of individual complaints made to them. There is little to no governmental or judicial oversight of these procedures. This Article examines the impact of the recent CJEU decision on global privacy protection. In particular, it canvasses questions about who should bear responsibilityfor the protection of privacy, ultimately arguing that it is unbefitting and socially undesirable for unchecked businesses to act as the ultimate arbiters ofprivacy. However, the pendulum may now have swung so far in this direction that the only meaningful approach to protecting online privacy going forward is for governments and interest groups to assist such businesses in making appropriate privacy-protective decisions

In Honor of Walter O. Weyrauch: The Ubiquity of Greed: A Contextual Model for Analysis of Scienter

Some securities fraud plaintiffs contend that greed—in the form of perpetuating a prestigious executive position, ensuring a gainful bonus, or maintaining the appearance of corporate profitability—is a bona fide motive evidencing scienter. But currently, no single judicial standard or analytical rubric guides the analysis of whether allegations of greed indicate scienter in these cases. The Private Securities Litigation Reform Act of 1995 (PSLRA) requiresthat the complaint state “with particularity” facts giving rise to a “strong inference” that the defendant acted with the scienter required for the cause of action. Plaintiffs have long established scienter through “motive and opportunity” pleading: facts demonstrating the presence of a motive in tandem with the perpetrator’s opportunity to commit the fraud. As part of motive and opportunity pleading, some plaintiffs have contended that greed can be a manifestation of scienter. Such allegations have met disparate and somewhat unreasoned fates. This Article draws from the over one hundred reported circuit court cases interpreting the “strong inference” standard in a variety of factual settings to propose a framework for more orderly analysis of allegations of corporate and personal avarice. Guided by the way some courts analyze the role of insider stock transactions in scienter pleading, the contextual model identifies three dimensions—magnitude, timing, and atypicality—that can heighten ordinary profit-seeking activities to suspicious or unusual conduct and can provide a motive that properly gives rise to a strong inference of scienter

In Honor of Walter O. Weyrauch: The Ubiquity of Greed: A Contextual Model for Analysis of Scienter

Some securities fraud plaintiffs contend that greed—in the form of perpetuating a prestigious executive position, ensuring a gainful bonus, or maintaining the appearance of corporate profitability—is a bona fide motive evidencing scienter. But currently, no single judicial standard or analytical rubric guides the analysis of whether allegations of greed indicate scienter in these cases. The Private Securities Litigation Reform Act of 1995 (PSLRA) requiresthat the complaint state “with particularity” facts giving rise to a “strong inference” that the defendant acted with the scienter required for the cause of action. Plaintiffs have long established scienter through “motive and opportunity” pleading: facts demonstrating the presence of a motive in tandem with the perpetrator’s opportunity to commit the fraud. As part of motive and opportunity pleading, some plaintiffs have contended that greed can be a manifestation of scienter. Such allegations have met disparate and somewhat unreasoned fates. This Article draws from the over one hundred reported circuit court cases interpreting the “strong inference” standard in a variety of factual settings to propose a framework for more orderly analysis of allegations of corporate and personal avarice. Guided by the way some courts analyze the role of insider stock transactions in scienter pleading, the contextual model identifies three dimensions—magnitude, timing, and atypicality—that can heighten ordinary profit-seeking activities to suspicious or unusual conduct and can provide a motive that properly gives rise to a strong inference of scienter