In the June 16, 2022 edition of The Legal Intelligencer, Edward T. Kang co-authored, “‘Depp v. Heard’: Public Trials and the Social Media Era.“

Over the past few months, the world has found itself embroiled in several compelling crises; the war in Ukraine, crushingly high inflation and the ongoing COVID-19 pandemic. Despite these weighty and important issues, one story has dominated the headlines like no other: the Depp v. Heard trial. Naturally, this story about a Hollywood power couple and the salacious allegations made against each other quickly became a tabloid favorite.

For those unaware, this case centered around the tumultuous and ill-fated marriage of actors Johnny Depp and Amber Heard. After their divorce, Heard made several public statements and published an op-ed claiming to be a “public figure representing domestic abuse” who “spoke up against sexual violence.” While not expressly named in these publications, Depp sued, claiming that these statements were defamatory statements about him and had damaged his career.

At trial, the evidence presented painted a tale of addiction and acrimony throughout the pair’s five-year relationship before their eventual divorce. Depp’s attorneys won praise for exposing inconsistencies in Heard’s case, and by the end of the trial, public support was decidedly in his favor. The jury awarded Depp $10 million in compensatory and $5 million in punitive damages. The jury also awarded Heard $2 million for one of her counterclaims for certain statements made by Depp’s attorney, but declined to award any punitive damages.

Public reaction to the verdict has not been uniform, although most agree that this has been a public relations victory for Depp. Beyond the substantive legal matters at issue, one procedural aspect of the trial has also generated significant attention; namely, that the entire proceeding was livestreamed for the public. We discuss below the pros and cons of such coverage, the history of recording devices in courtrooms, as well as provide recommendations for balancing the countervailing concerns at issue.

The basic argument supporting broadcast coverage of court proceedings is that it enhances the public’s ability to watch court proceedings, allowing millions to see what would otherwise be limited to the capacity of the courtroom itself. By doing so, supporters of this practice argue that the public becomes more engaged and informed as to the legal system and its operation. No doubt, these are laudable goals.

Critics of the practice point to the perverse incentives that public scrutiny can sometimes bring, the risk of improper juror influence, and the corruption of the legal system itself. In much of this country, including Pennsylvania, judges and prosecutors are elected. While everyone hopes that this would not come to bear, the presence of cameras in the courtroom may motivate these individuals to act in a way that promotes their political profile, and not the interests of justice. Similarly, if parties to the case know that the proceedings will be televised, they may attempt to use the legal system for purposes beyond enforcing and protecting their legal rights. For instance, most would agree that the public relations aspect of Depp v. Heard was at least as important to the parties as the substantive legal matters involved.

Relatedly, widespread media coverage can sometimes lead to a consensus effect, where the public quickly chooses a side, and dissent becomes heresy. The jury in Depp v. Heard was not sequestered and, while admonished by the judge not to conduct their own independent research, the media barrage accompanying the case made this a Herculean task. These concerns are exacerbated in the social media era, where information can spread faster and echo chambers can form more easily, providing a modern twist to an age-old dilemma. You did not need to go looking for the trial coverage, it came to you via many different means of the social media. In all likelihood, the jurors in Depp v. Heard found themselves in the same position as the general public, bombarded with constant trial updates and reactions.

The controversy surrounding media presence in the courtroom, especially in criminal cases, is almost as old as the camera itself. One of the first cases to confront this issue, State v. Hauptmann, 180 A. 809 (N.J. 1935), dealt with the kidnapping and murder of the Lindbergh baby. Everything about this case seemed assured to bring about a media circus: a celebrity couple, a contemptible crime and a tangled web of circumstantial evidence. The accused, an illegal immigrant who had fought against the United States in World War I, was not a particularly sympathetic character in the public eye. Hundreds of reporters descended on the Flemington, New Jersey courthouse in a scene that resembled a feeding frenzy more than a judicial proceeding. And while the New Jersey Supreme Court rejected any contention that this violated the defendant’s right to a fair trial, the ABA would amend its advisory Canons of Judicial Ethics two years later to forbid broadcast coverage of trials.

Decades later, in Estes v. Texas, 381 U.S. 532 (1965), another highly publicized case would reach the Supreme Court. Billy Sol Estes, a close friend and political ally of President Lyndon Johnson, was charged with “swindling” in a case that garnered nationwide coverage. Radio, television, and news photography were permitted at various times throughout the trial, and the recordings of these proceedings “clearly illustrate that the picture presented was not one of that judicial serenity and calm to which petitioner was entitled.” While the court emphasized the importance of public trials in the Anglo-American tradition, it also recognized that a certain level of publicity is so distracting and intrusive that it violates a defendant’s right to a fair trial. According to the court, this was such a case, and Estes conviction was overturned.

Following Estes, there was some confusion as to whether the court had announced a total prohibition on the broadcast coverage of trials, or if its holding was motivated by the particularly disruptive media presence in that case. In Chandler v. Florida, 449 U.S. 560 (1981), the court would answer this question in another sensational case. The defendants in that case, two Miami Beach police officers, were accused of robbing a popular local restaurant. Under a recently enacted Florida law, broadcast media were allowed to film these proceedings, subject to certain restrictions. These restrictions included limiting the media presence to one camera and one camera technician operating from a fixed location, a prohibition on recording the conversations between lawyers, and the judge’s discretionary power “to forbid coverage whenever it may have a deleterious effect on the paramount right of the defendant to a fair trial.” A unanimous Supreme Court held that these restrictions were sufficient to safeguard due process, and the convictions were upheld.

Since Chandler, states have created a patchwork of rules governing what type of recording devices are allowed in courtrooms and in what contexts. In Pennsylvania, the rules governing recording equipment in the courtroom are governed by 201 Pa. Code Rule 1910. This section announces a criminal prohibition on the use of recording devices “within a judicial facility” absent express approval of the judge. The statute then carves out exceptions, such as for the presentation of evidence or educational purposes. For nonjury civil proceedings, Rule 1910(B)(4) announces a more flexible standard, and arguments before the Superior Court are regularly livestreamed for the public.

Recently, due to the COVID-19 pandemic, the Pennsylvania Supreme Court issued Emergency Order of Statewide Judicial Administration Nos. 531 and 532. These provided that in proceedings where the public would otherwise have a right to spectate, “provision must be made to ensure some reasonable means of access.” The court specifically stated that “with respect to a proceeding conducted using audio-visual means, such public access may be effectuated during the proceeding by providing live-stream access …” For a short while, Philadelphia was one of the jurisdictions that allowed the livestreaming of trials, although this practice was quickly discontinued due to concerns of witness intimidation and harassment.

Between the extremes of secret tribunals and trial by TikTok, there exist a range of compromise options. For instance, some courts allow video or audio recording of proceedings, but mandate that these recordings only be released after the proceedings have concluded. Other courts allow livestreaming of arguments, but forbid recording these proceedings, a prohibition that relies largely on the honor system. Some jurisdictions will draw a distinction between jury and nonjury cases, and the right of a criminal defendant to a fair trial is especially sacrosanct. Overall, most jurisdictions give trial judges broad discretion as to when and how to allow recording equipment in their courtroom.

While it is likely that there is no Goldilocks solution to this conundrum, courts should be especially wary of allowing live coverage of proceedings in the social media era. Often, courts find themselves in a Catch-22; the select few cases that the public actually wants to watch are the ones where the risk of impropriety is highest. Courts should be more selective about which proceedings are broadcast, and should be especially concerned about media interference in jury trials if the jury is not sequestered.

Public access to court proceedings is worth protecting, but so is the right to a fair trial. And while these concerns are particularly acute in the criminal context, that is not to say that they are not also present for civil proceedings. Especially when the parties know that a case will generate significant public attention, there is always the risk that the legal system would be weaponized to pursue claims for reasons beyond their substantive merit. Trials are already invasive enough for litigants, and they should not have to litigate parallel proceedings in the court of public opinion.

Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.

Kang Haggerty associate Ryan Kirk served as co-author of this article.

Reprinted with permission from the June 16, 2022 edition of “The Legal Intelligencer” © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Whether you bring a suit over a complicated product like a social media network or a simple tangible product, like an apple, a relevant product and geographic market must be defined properly to succeed.

In the March 17, 2022 edition of The Legal Intelligencer, Edward T. Kang wrote “What Makes a Market, a Market, Anyway? A Look at Social Media.”

Picture an antitrust action against an apple farmer who supplies almost all the apples in America. If you were bringing the suit for antitrust violation, how would you define the market for an apple? Is it the market for a snack? For healthy snacks? For healthy handheld snacks? For fruits? The list could go on and on. Defining the market for an antitrust analysis becomes far more complicated for products or services that are newer, such as the market for social media networks. When it comes to the Sherman Act one may think that because it has been combatting monopolies for over a century, there can be no room for interpretation about what constitutes a monopoly, much less a market for one. In the past 100 years, however, new markets and questions about those markets have risen. Social media networks probably did not come across the minds of the Sherman Act’s drafters in 1890.

Section 2 of the Sherman Act explains that “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a felony.” The U.S. Supreme Court has defined two elements of a monopoly under Section 2: “the possession of monopoly power in the relevant market and the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” See United States v. Grinnell, 384 U.S. 563, 570–71 (1966). Monopoly power is defined as the ability to control prices and exclude competition in a given market.

Recently, after granting the motion to dismiss the original antitrust complaint, the U.S. District Court for District of Columbia denied Facebook’s (now Meta’s) motion to dismiss the FTC’s amended antitrust complaint against Facebook. The court determined that the amended complaint stated a plausible claim for relief under Section 2 of the Sherman Act. The court noted that the FTC adequately defined the relevant in the amended complaint and, therefore, refused to grant the motion to dismiss.

This decision serves as both a guiding light and a cautionary tale for plaintiffs bringing an antitrust suit involving the contemporary and unique market for social media networks. It illustrates how difficult it is for a plaintiff to define the relevant market for a modern “good” like social media and how complicated it is to address monopoly power in that modern relevant market. Defining the relevant market is intertwined with determining whether a defendant has monopoly power since that power is often inferred when the defendant’s share exceeds a certain threshold in the defined relevant market (usually at least a 60% market share). It is important for practitioners to understand how to properly define both requirements for the latest goods like social media networks as the future holds countless possible actions involving similar markets.

Before alleging that Facebook had monopoly power, the FTC had to sufficiently define the relevant market for social media networks and did so by applying the following traditional relevant market principles to modern times. The relevant market encompasses both the relevant product market and geographic market. When determining whether a plaintiff properly defined the relevant product market, courts look to see what products are reasonably interchangeable to the product at issue. Reasonable interchangeability relates to a product’s price, use and quality. See United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 400 (1956). The outer boundaries of a product market are determined by the cross-elasticity of demand between the product itself and substitutes for it. See Brown Shoe v. United States, 370 U.S. 294, 325 (1962) (emphasis added). Cross elasticity of demand means when the price of one good within a relevant product market rises, it causes a greater demand for similar goods in that same product market. See Tunis Bros. v. Ford Motor, 952 F.2d 715, 722 (3d Cir. 1991).

Courts look to see whether the product at issue has interchangeable substitutes or whether it is distinct from other products. For example, the Supreme Court found that the relevant market for cellophane was the market for flexible packaging goods, rather than the market for cellophane alone as the products were not distinct from one another. Similarly, the U.S. Court of Appeals for the Third Circuit decided that Cadillac cars were not so distinct from other luxury cars so as to constitute their own relevant market. See Mogul v. General Motors, 391 F.Supp. 1305, 1313 (E.D.Pa.1975), aff’d without opinion, 527 F.2d 645 (3d Cir.1976). Only in certain unique situations, courts have found a distinct relevant product market. For example, in Eastman Kodak v. Image Technical Services, 504 U.S. 451, 482 (1992), the Supreme Court held that the relevant product market for repair parts and services for Kodak photo copiers was the market for repair parts and services for Kodak machines only as Kodak machines were not interchangeable with parts for other brand copiers.

Regarding the second aspect of the relevant market, courts have found the following factors dispositive in defining the relevant geographic market: the area where the potential customer will look for a product versus the area in which the seller attempts to sell their products; the price of the product; the durability of the product; and the size of the product. For example, as one can imagine, the relevant geographic market for an expensive item like a boat is larger than that of an inexpensive item like an apple.

In the recent Facebook case, the FTC successfully defined the market for Facebook as the market for personal social network (PSN) services consisting of “online services that enable and are used by people to maintain personal relationships and share experiences with friends, family, and other personal connections in a shared social space.” See Federal Trade Commission v. Facebook, (D.D.C. Jan. 11, 2022). The FTC explained three elements that distinguish PSN services from other services including: how PSN services map connections between users and their friends, family, and others; how PSN services have features that allow users to interact with their connections and share their personal experiences; and how PSN services have features that make it easy for users to expand their networks by finding and connecting with other users. The FTC explicitly distinguished how some “types of internet services” are not “adequate substitutes” for Facebook. The FTC plead that “specialized social networking services’ that ‘focus on professional … connections’ (e.g., LinkedIn) are not substitutes because they are designed for and used primarily by professionals for sharing professional content,” as opposed to PSN’s design and primary use of “maintaining personal relationships and sharing experiences with friends, family, and other personal connections.”

This decision also serves as a cautionary tale for plaintiffs alleging a defendant’s monopoly power in a social media market. The specificity of detail of FTC’s allegations of monopoly power was the reason the court granted Facebook’s first motion to dismiss and denied its second as to the FTC’s amended complaint. Originally the FTC alleged solely (and conclusively) that Facebook maintained a “dominant share of the U.S. personal social networking market (in excess of 60%)”, and that “no other social network of comparable scale exists in the United States.” The court found this assertion to be bare, conclusory and that the FTC did not specify what the 60% was measuring. But, for the FTC’s second go around, it included more detailed facts to support its allegations. The FTC’s amended complaint included allegations regarding data about Facebook’s market share of daily average users, monthly average users, and its share of users’ average time spent on PSN services. The FTC even included specific data breaking down the type of device that daily and monthly average users interacted with Facebook on. The FTC alleged that Facebook’s share of daily average users of PSN services exceeded 70% while its competitors never exceeded 30% on any device type during any month. The FTC also incorporated data that Facebook’s share of users’ time spent on PSN services exceeded 80%. The FTC bolstered their allegations by alleging that Facebook itself used these metrics to assess their performance and their competitors’ performance. The FTC’s allegations were enough to show that Facebook maintained a dominant market share for PSNs of at least 60-65%.

Practically speaking, when bringing an antitrust suit, it is critical to identify the proper relevant product market. To properly do so, and plead sufficiently, practitioners should acknowledge reasonable interchangeability and cross-elasticity of demand when defining their relevant product market. Like how the FTC referenced interchangeable goods in their explanation of the relevant market for Facebook by noting that they are not interchangeable substitutes, practitioners should either compare or distinguish the product at issue with reference to interchangeability and cross-elasticity of demand. To successfully allege the defendant’s monopoly power of the relevant market, practitioners should learn from the FTC’s mistakes and avoid making conclusory assertions. For new markets like that of social media networks, practitioners should incorporate specific data about the defendant’s product that illustrates the level of market power the defendant holds, such as daily/monthly average users and time spent on the product by users. Practitioners should gather this data for all competitors’ products and include competitors’ data in allegations to paint a picture of monopoly power like the FTC did.

It is also critical for practitioners to define the relevant geographic market through the market that comprises where the product’s customers would go to purchase. It is important to distinguish that from the market where the seller sells their product as that is not the proper geographic market. It is only a matter of time until the next antitrust action against a social network company is underway. Whether you bring a suit over a complicated product like a social media network or a simple tangible product, like an apple, a relevant product and geographic market must be defined properly to succeed.

Edward T. Kang is the managing member of Kang Haggerty. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@kanghaggerty.com.

Reprinted with permission from the March 17, 2022 edition of “The Legal Intelligencer” © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Facebook has been making headlines lately over claims it shared personal data on more than 87 million people to the political data firm, Cambridge Analytica for use in the 2016 presidential election. In the midst of the Cambridge Analytica chaos, the Pennsylvania Superior Court provided long-overdue guidance on the authentication of posts from Facebook and other social media platforms.

1. Create a Policy and BE Informative: Notify your Employees that you are creating a policy. Keeping them informed mitigates future “I didn’t know” excuses. Also, employees have the legal right to be informed about any new policy change or creation.

2. BE Informed: Before you start drafting anything, be informed about recent legislation regarding Social Media policies and cases that have created different interpretations of existing policies. Three major examples are: