Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

Social Links: Going Back to Cali

This Friday, January 13, in New York City, Socially Aware will be co-sponsoring and attending Influence + Engage 2017, a conference hosted by <a href="http://the-social-edge.com/" target="_blank" rel="noopener">The Social Edge</a> that will explore the intersection of social influence and audience engagement.With a keynote to be given by one of the world’s highest profile social media influencers, George Takei, the conference will include panel discussions on cutting-edge social-media-marketing issues such as how to manage the consequences of algorithms and filter bubbles and how to make sponsored content more authentic.Don’t miss this opportunity to learn how to best connect with audiences and build your brand’s voice on social media.The conference will run from 10 am (registration to open at 9am) until 5 pm at the SVA Theater on 23rd Street between 8th and 9th Avenues in Manhattan. For more information regarding the event, click <a href="https://www.eventbrite.com/e/influence-engage-2017-registration-29827042487" target="_blank" rel="noopener">here</a>.

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Influence + Engage 2017

This Friday, January 13, in New York City, Socially Aware will be co-sponsoring and attending Influence + Engage 2017, a conference hosted by The Social Edge th

Influence + Engage 2017

Last year we explained how companies could <a href="https://www.sociallyawareblog.com/2016/03/22/currency/" target="_blank" rel="noopener">protect their social media currency</a> and heed the <a href="https://www.sociallyawareblog.com/2016/01/05/a-warning-from-the-ftc-on-native-advertising/" target="_blank" rel="noopener">FTC’s warning on native advertising</a>. We examined court opinions establishing the criteria for <a href="https://www.sociallyawareblog.com/2016/06/14/scroll-box/" target="_blank" rel="noopener">enforceable website terms of use</a> and defining the scope of <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">protection afforded to website owners</a> under Section 230 of the Communications Decency Act. We discussed courts’ struggles to <a href="https://www.sociallyawareblog.com/2016/04/20/emoji/">interpret emoji</a> and to determine whether “friending” a litigation adversary <a href="https://www.sociallyawareblog.com/2016/04/26/new-jersey-supreme-court-questions-ethics-of-friending-a-litigation-foe/" target="_blank" rel="noopener">violates attorney ethics rules</a>. We also explored questions such as whether <a href="https://www.sociallyawareblog.com/2016/05/23/will-ad-blockers-kill-online-publishing/" target="_blank" rel="noopener">ad blockers will kill online publishing</a> and whether trolls are killing social media marketing.We did our best to cover it all. But—of course—some articles resonated with our readers more than others. These were the most popular posts that appeared on Socially Aware in 2016:<ol><li><a href="https://www.sociallyawareblog.com/2016/12/06/new-copyright-office-rule-creates-potential-gotcha-for-blogs-and-websites-hosting-user-generated-content/" target="_blank" rel="noopener">New Copyright Office Rule Creates Potential “Gotcha” for Blogs and Websites Hosting User-Generated Content</a></li><li><a href="https://www.sociallyawareblog.com/2016/10/04/social-media-safety-guide-for-companies/" target="_blank" rel="noopener">Social Media Safety Guide for Companies</a></li><li><a href="https://www.sociallyawareblog.com/2016/02/02/the-internet-of-things-evaluating-the-interplay-of-interoperability-industry-standards-and-related-ip-licensing-approaches/" target="_blank" rel="noopener">The Internet of Things: Interoperability, Industry Standards & Related IP Licensing Approaches</a></li><li><a href="https://www.sociallyawareblog.com/2016/05/25/bad-attitude/" target="_blank" rel="noopener">Don’t Worry, Be (Un)Happy: Does U.S. Labor Law Protect a Worker’s Right to a Bad Attitude?</a></li><li><a href="https://www.sociallyawareblog.com/2016/07/21/pokemon/" target="_blank" rel="noopener">Augmenting Reality: A Pokémon Go Business and Legal Primer</a></li><li>Controversial New Jersey Consumer Protection Law Creates a Potential “Gotcha” for E-Commerce Companies</li><li><a href="https://www.sociallyawareblog.com/2016/04/14/the-internet-of-things-evaluating-the-interplay-of-interoperability-industry-standards-and-related-ip-licensing-approaches-part-2/" target="_blank" rel="noopener">The Internet of Things: Interoperability, Industry Standards & Related IP Licensing Approaches (Part 2)</a></li><li><a href="https://www.sociallyawareblog.com/2016/07/18/trademarks-hashtags-as-trademarks-revisited/" target="_blank" rel="noopener">#Trademarks?: Hashtags as Trademarks Revisited</a></li><li><a href="https://www.sociallyawareblog.com/2016/04/20/emoji/" target="_blank" rel="noopener">Mixed Messages: Courts Grapple With Emoticons and Emoji</a></li><li><a href="https://www.sociallyawareblog.com/2016/02/22/clickwrap-browsewrap-and-mixed-media-contracts-a-few-words-can-go-a-long-way/" target="_blank" rel="noopener">Clickwrap, Browsewrap and Mixed Media Contracts: A Few Words Can Go a Long Way</a></li></ol>

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

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2016: Our Greatest Hits

Last year we explained how companies could protect their social media currency and heed the FTC’s warning on native advertising. We examined court opinions esta

2016: Our Greatest Hits

Over 30 workers at a Japanese insurance company are losing their jobs following the company’s adoption of IBM’s Watson Explorer, an artificial intelligence system that will perform an important back office function at the company.Medium laid off a big chunk of its team despite reporting impressive growth last year.Snapchat is being sued by one of its former employees for allegedly terminating his employment and ruining his reputation in retaliation for whistleblowing.In France, a new law requires companies to limit the time their employees are expected to respond to work-related email.A college student in New York, one of the few states that hasn’t adopted an anti-revenge-porn law, is seeking an injunction that would require Yahoo, Google and Bing to remove her full name from their search engines, which generate more than four pages of X-rated references when a user enters her name into them.Some children’s rights advocates think a Texas bill intended to help stop cyberbullying goes too far.Lots of consumers are discovering products on social media, but most of them aren’t purchasing products directly off of those platforms—yet.Trolls can undermine brands’ social media marketing efforts—unless their social media managers are as savvy as the person in charge of Wendy’s Twitter account.Speaking of brands on social media, Cinnabon’s Carrie Fisher tweet stirred up some controversy.Facebook temporarily banned Santa Claus’s account over the holidays.

Social Links: AI displaces insurance company employees; revenge-porn victim seeks injunction against search engines; Wendy’s wins Twitter war against a troll

Over 30 workers at a Japanese insurance company are losing their jobs following the company’s adoption of IBM’s Watson Explorer, an artificial intelligence syst

Social Links: AI displaces insurance company employees; revenge-porn victim seeks injunction against search engines; Wendy’s wins Twitter war against a troll

The beginning of a new year is a time for resolutions and predictions. We won’t bother Socially Aware readers with our resolutions for 2017, but we thought that we would share some predictions for the new year from our editors and contributors. As our predictions below indicate, 2017 promises to be an eventful year for social media and other emerging technologies. Here we go:From John Delaney, Co-Founder and Co-Editor, Socially Aware, and Partner at Morrison & Foerster:As we enter 2017, one of the greatest question marks for the social media and content marketing industries is what impact will Donald Trump have on the legal landscape. He’s been dubbed the country’s first social media president, and there is no doubt that his use of social media platforms such as Twitter and Facebook played a key role in his upset election victory. At the same time, he’s had an often antagonistic relationship with Silicon Valley, and one can imagine tech giants such as Google and Facebook having a far less prominent voice within the Trump administration than was the case for the Obama administration. And although Trump’s promised focus on reducing business regulations may benefit the U.S. technology companies, his apparent skepticism toward globalism and free trade could prove a challenge to the country’s social media industry, perhaps the most global of all U.S. industries.My other prediction for the coming year is that we’re going to see a number of disruptive new technologies emerging from the hype phase to having a real impact on businesses and consumers—perhaps more likely with respect to the latter than the former, at least initially. For example, blockchain technology generated a big buzz in 2016, but look for companies to actually begin embracing and implementing this technology in a B2B context in the never-ending drive to reduce transaction fees. By eliminating the need for trusted middlemen, the transitioning of traditional payment and recordation platforms to blockchain-based platforms holds the promise of generating significant cost savings for companies. We’re also going to see the pace of disruption accelerate as each of these new technologies—such as artificial intelligence, big data analytics, cloud computing, blockchain, the Internet of Things and so forth—combine and mutate in expected and unexpected ways. From Aaron Rubin, Co-Editor, Socially Aware, and Partner at Morrison & Foerster:Section 230 of the federal Communications Decency Act provides immunity to website operators for liability arising from user-generated content and has been hailed as <a href="http://www.theatlantic.com/business/archive/2013/09/the-law-that-gave-us-the-modern-internet-and-the-campaign-to-kill-it/279588/" target="_blank" rel="noopener">the law that gave us the modern Internet</a>. In the social media space in particular, Section 230 has helped fuel the remarkable success of companies such as Facebook, Twitter and YouTube by providing broad protection against claims arising from content posted by these platforms’ users. But in 2016, we saw <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">a string of court decisions</a> reining in the historically broad scope of Section 230. To be fair, 2016 also saw <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">a few victories</a> for website operators asserting Section 230 defenses, but with the increased media focus on “fake news” and online trolling, my prediction is that the trend towards narrowing the scope of Section 230 will continue in 2017. From Christine Lyon, Privacy Desk, Socially Aware, and Partner at Morrison & Foerster:In 2017 we will watch courts, legislators and the tech industry grapple with the privacy-related implications of the Internet of Things. Our homes, cars and workplaces are filling with connected devices designed cater to our personalized needs. They respond to our instructions, whether delivered through a mobile app or a spoken command, and they collect data about our activities in order to better anticipate our needs. All of this data collection creates a digital trail of our lives, which will become richer and more detailed as multiple sources of data are combined. Big data analytics offers seemingly endless opportunities to use and commercialize this data in new ways. Yet unanticipated uses and disclosures of user data may compromise consumer privacy and even undermine consumer trust. We can expect to see expanding definitions of what types of data are considered personal information, legal battles over when and how law enforcement agencies can access user data and industry self-regulatory initiatives to try to strike an appropriate balance between privacy and innovation. From Julie O’Neill, Online Marketing Desk, Socially Aware, and Partner at Morrison & Foerster:One of the biggest privacy developments of 2017 will be the Eleventh Circuit’s decision in the FTC’s long-running battle with LabMD. In July 2016, the Commission overturned the decision of the FTC’s own administrative law judge, holding that LabMD’s failure to use basic security measures led to the unauthorized disclosure of sensitive medical data and was thus “unfair,” in violation of Section 5 of the FTC Act. According to the Commission, the data security failure was unfair because it caused, or was likely to cause, substantial consumer injury. The Commissioners reached this decision without evidence of any actual injury to consumers. LabMD promptly appealed.The Eleventh Circuit’s decision will have ramifications for how the FTC wields its unfairness authority. A decision against the FTC would curtail its ability to bring enforcement on an unfairness theory where there is no actual harm to consumers. Couple that with the fact that President-elect Trump’s appointments to fill the Commission’s two vacancies will almost surely not be aggressive enforcers, and we will see less enforcement from the FTC—not just with respect to privacy and data security matters, but with respect to consumer protection issues more generally. From <a href="https://www.mofo.com/people/j-lawrence.html" target="_blank" rel="noopener">J. Alexander Lawrence</a>, Litigation Desk, Socially Aware, and Partner at Morrison & Foerster:2017 may bring greater clarity to the Digital Millennium Copyright Act (DMCA) Section 512 safe harbors’ “repeat infringer policy” requirement under U.S. copyright law. In late 2016, the Second Circuit, in the MP3Tunes decision, took a broad view of what constitutes a repeat infringer under the DMCA. This is important because a service provider’s failure to terminate repeat infringers can result in loss of safe harbor protections from copyright damages. A further appeal to the Supreme Court in that case is possible. The Fourth Circuit will be considering the issue of what constitutes a repeat infringer in a dispute between BMG and Cox and will likely issue a decision sometime in 2017. Companies that rely on the DMCA safe harbor will be paying close attention to these developments. From Michael Jacobs, Co-Chair, Intellectual Property Group, Morrison & Foerster:My prediction for 2017 is that the patent litigation world will settle down a bit—now that we all have had time to adjust to the new ground rules. Section 101 decisions against patentees will be fewer. IPR institution and invalidation rates will decline. Damages expert testimony will more often survive judicial scrutiny. Injunctions will be sought in the right cases and granted. The only major change on the horizon is venue (and that will be big)—likely as the result of a Supreme Court decision in TC Heartland. From Paul Goldstein, Stella W. and Ira S. Lillick Professor of Law, Stanford Law School, and Of Counsel to Morrison & Foerster:The trends toward nationalism and protectionism that emerged around the globe in 2016 are unlikely to produce corresponding fractures in international copyright norms in 2017 or after. From the first bilateral copyright treaty in 1854, on through the Berne Convention to the present, it has not been the nation-state but, rather, the alignment of industry forces that has controlled the outcome of debate. In contests over the scope of the public performance right, an American music publisher has far more in common with a British music publisher than it does with an American Internet company, and will act accordingly in advancing its interests worldwide. States may sit at the negotiating table and sign the resulting agreements, but they do so principally as brokers and agents of their preferred domestic industries. (It will for this reason be important to watch whether Silicon Valley continues to enjoy the preferred status it received from the Obama administration.) From Obrea Poindexter, Co-Chair, FinTech Group, Morrison & Foerster:We expect 2017 to bring significant legal developments impacting the FinTech industry. With respect to lending, we expect to see the resolution of important cases, including the Madden case, which could impact marketplace lenders and traditional lenders alike. We also expect significant regulatory developments, including with respect to the OCC’s proposal for special purpose FinTech charter, which has the potential to facilitate regulatory compliance for start-ups launching innovative financial products and services. Of course, the changing political climate has the potential to dramatically change the regulatory outlook early in 2017, including for the FinTech industry.  From Stephanie Sharron, Partner, Technology Transactions Group, Morrison & Foerster:In 2017 companies will continue to explore ways to provide deeper interoperability and more security for the Internet of Things (IoT). In addition, data governance both from a rights and a regulatory perspective will take on increasing importance as companies sort out how they can best leverage and monetize the data collected from IoT products and services. Companies across industries will look for ways to transform their traditional businesses through adoption of IoT and big data applications that leverage the IoT’s power.In the FinTech area, I predict continued interest and investment as companies look for new monetization models and ways to cut costs. Banks are likely to continue to explore whether and how they can reduce costs through implementation of new technologies such as blockchain. As with the IoT, data governance and regulatory issues will continue to be a challenge for early adopters of cutting edge FinTech technologies and business models. From Katie Thomson, Chair, Transportation Group, Morrison & FoersterOn the infrastructure front, there is a bipartisan consensus that a safe, reliable and sustainable transportation system is critical to the economic prosperity of the United States and the well-being of everyone who lives here. There is also bipartisan recognition that our infrastructure is aging, public investment is shrinking and congestion on the roads and rails and in the air continues to increase. But over the past two decades, members of Congress—on both sides of the aisle—have lacked the political courage to develop and pass a long-term, adequate and viable funding solution that meets the needs of the transportation system today and into the future. President-elect Trump has pledged to invest approximately one trillion dollars in infrastructure support over the course of the next decade. That is a good start, but I predict that Congress will not take any meaningful action to resolve the long-standing infrastructure deficit in 2017. Instead, federal, state and local governments, along with private investors, will have to continue to find creative solutions to leverage scarce public funds and bring private funds to bear to support investments in transportation infrastructure.On the technology front, automated vehicles, drones, intelligent transportation systems, and performance-based design standards hold tremendous promise to enhance safety, efficiency and mobility in all modes of transportation. The federal government has an important role to play in eliminating regulatory barriers while ensuring the safety and security of these new technologies. Federal resources, however, are limited. To ensure that innovation continues and that we reap the benefits of these emerging technologies in real time, I predict that interested stakeholders will have to join forces to push the federal government to act responsibly and in a timely manner. The “push” may involve, among other creative measures, offering consensus recommendations to the government with respect to key issues such as safety and cybersecurity standards. From Joshua Ashley Klayman, Chair, Blockchain + Smart Contracts Group, Morrison & Foerster:In 2016 the potential for blockchain and smart contracts technologies to disrupt and transform entire industries captured the attention of the world’s financial markets and financial services industries.My prediction for 2017 is that the attention and excitement about blockchain will continue to grow and that the governments and laws of the United States and other nations will continue to adapt to embrace—or at least acknowledge—blockchain and smart contracts technologies. At the same time, I predict that we will see many failures with respect to start-ups and investments, as well as well-hyped product and service offerings that stall at or prior to the proof of concept stage. That is natural and to be expected as distributed ledger technology grows and develops and as individuals and companies work to identify and refine use cases that will benefit most from blockchain and smart contracts (vs. those for which traditional spreadsheets or databases will suffice). Finally, I predict that in 2017 we will see the launch of more sophisticated smart contracts (i.e., beyond buying and selling digital currency) that are market-ready and not merely proof of concepts or demos, including in the finance space. From Kristina Ehle, Partner, and Jannis Werner, Associate, in Morrison & Foerster’s Berlin OfficeIn Europe, 2017 begins amidst fears of so-called “fake news” distributed through social media, the implications for democratic processes and discussions about the right approach to tackle this issue going forward. EU Commission president Jean-Claude Juncker recently made it known that he expects companies like Facebook and Google to combat fake news on their platforms, and that the Commission will be watching. Meanwhile, discussions of fake news in Europe’s largest economy, Germany, may progress past such posturing and lead to concrete legal measures, with calls for regulation of social media and criminal sanctions for offending users being made by large parts of the political spectrum, and only few voices warning of the chilling effects of such measures on free speech. Considering how seamlessly these discussions seem to follow one of Germany’s best-known social media controversies of 2016—the perceived resurgence of hate speech in the times of migration crises—it’s safe to expect that U.S.-based social media platforms will remain a favorite target of both political rhetoric and regulatory ambition. This year, of course, German leadership has plenty of motivation for its preoccupation with fake news and the political effects of social media in general: 2017 will be an election year in Germany and France. From Susan McLean, Europe Desk, Socially Aware, and Of Counsel at Morrison & Foerster’s London Office:The implications of the decision to leave the European Union will continue to loom large for the UK tech sector during 2017. Subject to court cases impacting the timetable announced by the UK Prime Minister, the official Article 50 declaration is expected to be made by the end of March 2017. However, until we know more about the shape of the UK’s relationship with the EU going forward, there will remain uncertainty as to what impact Brexit will have on existing and planned UK law (much of which is derived from EU legislation). In the meantime, I anticipate that the UK tech sector will continue to highlight to the UK government their key priorities for any Brexit deal—including continued access to recruitment and investment—to ensure that the UK tech sector continues to flourish post-Brexit.

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2017: Predictions From Socially Aware’s Editors and Contributors

2017: Predictions From Socially Aware’s Editors and Contributors

The beginning of a new year is a time for resolutions and predictions. We won’t bother Socially Aware readers with our resolutions for 2017, but we thought that

2016 has been a tough year for a lot of reasons, most of which are outside the scope of this blog (though if you’d like to hear our thoughts about Bowie, Prince or Leonard Cohen, feel free to drop us a line). But one possible victim of this annus horribilis is well within the ambit of Socially Aware: Section 230 of the Communications Decency Act (CDA).Often hailed as <a href="http://www.theatlantic.com/business/archive/2013/09/the-law-that-gave-us-the-modern-internet-and-the-campaign-to-kill-it/279588/" target="_blank" rel="noopener">the law that gave us the modern Internet</a>, CDA Section 230 provides immunity against liability for website operators for certain claims arising from third-party or user-generated content. The Electronic Frontier Foundation has called Section 230 “<a href="http://craigconnects.org/CDA230infographic" target="_blank" rel="noopener">the most important law protecting Internet speech</a>,” and companies including <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">Google</a>, Yelp and <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2089&context=historical" target="_blank" rel="noopener">Facebook</a> have benefited from the protections offered by the law, which was <a href="http://www.law360.com/articles/836281/section-230-of-the-communications-decency-act-turns-20" target="_blank" rel="noopener">enacted 20 years ago</a>.But it’s not all sunshine and roses for Internet publishers and Section 230, particularly over the past 18 months. Plaintiffs are constantly looking for chinks in Section 230’s armor and, in an unusually large number of recent cases, courts have held that Section 230 did not apply, raising the question of whether the historical trend towards broadening the scope of Section 230 immunity may now be reversing. This article provides an overview of recent cases that seem to narrow the scope of Section 230.The “Publisher or Speaker” Requirement CDA Section 230(c)(1) states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Plaintiffs sometimes argue that Section 230 does not apply because the claims they are asserting do not treat the defendant as a publisher or speaker. This has not always been a successful argument, but it has prevailed in several recent cases.<a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/31/12-56638.pdf" target="_blank" rel="noopener">Doe #14 vs. Internet Brands</a> involved a website called Model Mayhem, which is designed to match models with prospective gigs. In 2012, a Jane Doe plaintiff sued Internet Brands, the parent company of Model Mayhem, alleging that the site’s operators were negligent in failing to notify its users of the risk that rapists were using the website to find victims. Consequently, Doe argued, she was drugged and raped by two assailants who had used the website to lure her to a fake audition.The plaintiff argued that Section 230 did not apply because a “failure to warn” claim did not depend on Model Mayhem being the publisher or speaker of content provided by another person. The Ninth Circuit bought the plaintiff’s argument and overturned the district court’s earlier dismissal of the case, which had been based on Section 230 immunity.In his opinion, Judge Clifton explained that Jane Doe did not seek to hold Internet Brands liable as a publisher or speaker of content posted by a user on the website, or for its failure to remove content posted on the website. Instead, she sought to hold Internet Brands liable for failing to warn her about information it obtained from an outside source about how third parties targeted victims through the website. This duty to warn would “not require Internet Brands to remove any user content or otherwise affect how it publishes or monitors such content.” Since the claim did not treat Internet Brands as a publisher or speaker, the court ruled that Section 230 did not apply.<a href="http://blog.ericgoldman.org/archives/2016/05/section-230-baffles-9th-circuit-again-doe-14-v-modelmayhem.htm" target="_blank" rel="noopener">Some commentators</a> have criticized this ruling, arguing that imposing an obligation on website operators to warn about potentially harmful users is impractical and contrary to the principles of Section 230 and of many prior cases, and will cause websites to self-censor and over-censor.A similar argument worked—to an extent—in <a href="https://casetext.com/case/darnaa-llc-v-google-inc-1" target="_blank" rel="noopener">Darnaa v. Google</a>, a Northern District of California case that involved YouTube’s removal of the plaintiff’s music video based on YouTube’s belief that the plaintiff had artificially inflated view counts. The plaintiff sued for breach of the covenant of good faith and fair dealing, interference with prospective economic advantage and defamation. She sought damages and an injunction to prevent YouTube from removing the video or changing the video’s URL.The district court held that Section 230(c)(1) preempted the plaintiff’s interference claim, but not her good faith and fair dealing claim. The court explained that the latter claim sought to hold YouTube liable for breach of its good faith contractual obligation to the plaintiff, rather than in its capacity as a publisher; as such, Section 230 did not shield YouTube against this claim.In a similar vein, a California Court of Appeal refused to apply the Section 230 safe harbor in a case involving Yelp, which we <a href="https://www.sociallyawareblog.com/2016/08/24/hassell/">recently wrote about</a>. In <a href="http://www.leagle.com/decision/In%20CACO%2020160607019/HASSELL%20v.%20BIRD" target="_blank" rel="noopener">Hassell v. Bird</a>, the plaintiff, an attorney, sued a former client for defamation regarding three negative reviews that the plaintiff claimed the defendant had published on Yelp.com under different usernames. When the defendant failed to appear, the court issued an order granting the plaintiff’s requested damages and injunctive relief. The court also entered a default judgment ordering Yelp to remove the offending posts. Yelp challenged the order on Section 230 grounds, among others, but the court held that Section 230 did not apply. It reasoned that Yelp was not itself being sued for defamation, so it did not face liability as a speaker or publisher of third-party speech.Likewise, the Northern District of California court in <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2324&context=historical" target="_blank" rel="noopener">Airbnb v. City and County of San Francisco</a> denied Airbnb’s request for a preliminary injunction barring enforcement of a San Francisco ordinance that makes it a misdemeanor to provide booking services for unregistered rental units. Airbnb argued that such an ordinance would conflict with Section 230, which contains an express preemption clause stating that no liability may be imposed under any state or local law that is inconsistent with Section 230.The decision turned on whether the ordinance “inherently requires the court to treat [Airbnb] as the ‘publisher or speaker’ of content provided by another.” Airbnb argued that the threat of criminal penalty for providing booking services for unregistered rental units would require that the company actively monitor and police listings by third parties to verify registration, which would be tantamount to “treating it as a publisher” because that would involve traditional publisher functions of reviewing, editing and selecting content to publish.But the court held that the ordinance did not treat Airbnb as the publisher or speaker of the rental listings because it applies only to providing and collecting fees for booking services in connection with an unregistered unit, and does not regulate what can and cannot be published. Therefore, the court denied the request for preliminary injunction.Section 230’s Application to “Providers and Users” Plaintiffs sometimes argue along with the “publisher or speaker” argument that Section 230 does not apply where the defendant does not fall within the category of “providers and users of an interactive computer service,” as required under Section 230(c)(1). This argument worked for the plaintiff in <a href="https://law.justia.com/cases/minnesota/supreme-court/1990/c3-88-2343-2.html" target="_blank" rel="noopener">Maxfield v. Maxfield</a>, a Connecticut state court case.In Maxfield, the plaintiff sued his ex-wife for defamation, claiming that she forwarded screenshots of defamatory tweets about him to his current wife. The ex-wife defended on Section 230 grounds, based on the fact that she forwarded third-party tweets but did not write the Tweets herself. The court, however, found that she was not covered by Section 230 immunity because she “merely transmitted” the defamatory messages. The opinion states: “Ms. Maxfield does not operate a website and plainly is not ‘a provider of an interactive computer service.’ While she might, on occasion, be considered a ‘user of an interactive computer service,’ she did not do so in the behavior alleged in the complaint.” Therefore, the court rejected the defendant’s Section 230 defense.It is worth noting that the Maxfield decision runs contrary to <a href="http://blog.ericgoldman.org/archives/2010/11/forwarding_defa_1.htm" target="_blank" rel="noopener">several prior cases</a> in which courts have held that forwarding defamatory emails would, in fact, be covered by Section 230.Defendants as Content DevelopersOne of the most commonly exploited plaintiff’s arguments against Section 230 defenses is that the statutory immunity does not apply if the defendant itself developed or contributed to the relevant material. In other words, the relevant material is not “information provided by another information content provider” and therefore falls outside of the scope of Section 230. Courts have historically been fairly strict about applying this exception, and <a href="http://www.dmlp.org/legal-guide/online-activities-covered-section-230" target="_blank" rel="noopener">have consistently held</a> that editing, selecting and commenting on third-party content does not take a defendant out of Section 230 immunity. However, recent cases seem to blur the line between what it means to “develop” content and to exercise editorial functions.In <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2161&context=historical" target="_blank" rel="noopener">Diamond Ranch Academy v. Filer</a>, the plaintiff, who ran a residential youth treatment facility, sued the defendant, who ran a website that contained critical descriptions of the plaintiff’s facility, for defamation. The critical comments were included in a portion of the website that, according to the defendant, contained third-party complaints about the plaintiff. The defendant asserted a Section 230 defense, arguing that she had merely selected and summarized third-party material to make it more digestible for readers.However, the court did not find this argument persuasive. In its decision, the court pointed out that the defendant’s posts “do not lead a person to believe that she is quoting a third party. Rather, [she] has adopted the statements of others and used them to create her comments on the website.” The court implied that the lack of quotation marks or other signals that the comments were created by third parties supported the inference that the defendant had “adopted” the statements. The court also noted that she had “elicited” the third-party comments through surveys that she had conducted. Since the court treated the defendant as the author of the allegedly defamatory statements, it held that she was not entitled to protection under Section 230 for those statements.In a more recent ruling, the Seventh Circuit in <a href="http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D11-14/C:15-3049:J:Williams:aut:T:fnOp:N:1862727:S:0" target="_blank" rel="noopener">Huon v. Denton</a> similarly refused to immunize the defendant from liability for an allegedly defamatory comment posted on its website. The case involved a comment to a story published on Jezebel, a property owned by Gawker, that called the plaintiff a “rapist.” The plaintiff argued that Section 230 was inapplicable because “Gawker’s comments forum was not a mere passive conduit for disseminating defamatory statements.” Rather, the plaintiff claimed, Gawker itself was an information content provider because it “encouraged and invited” users to defame the plaintiff, through “urging the most defamation-prone commenters to post more comments and continue to escalate the dialogue,” editing and shaping the content of the comments, and selecting each comment for publication.Many prior cases have held that engaging in editorial activities such as these does not turn a website operator into a content developer for purposes of Section 230. But the court in Huon sidesteps these arguments, stating that “we need not wade into that debate” because the plaintiff had also alleged that Gawker employees may have anonymously authored comments to increase traffic to the website. Despite the fact that, as <a href="http://blog.ericgoldman.org/archives/2016/11/eric-goldman-3.htm" target="_blank" rel="noopener">one commentator</a> noted, there was no allegation that Gawker employees had written the specific allegedly defamatory comment at issue, the court held that these allegations of anonymous authorship by Gawker employees were sufficient to survive Gawker’s motion to dismiss.Avoidance of Section 230(c)(2) on TechnicalitiesSo far, this article has focused primarily on CDA Section 230(c)(1), which tends to see more action in the courts than its counterpart provision, CDA Section 230(c)(2). But there have also been recent cases that narrow the scope of Section 230(c)(2).Section 230(c)(2) states that no provider or user of an interactive computer service will be liable for its filtering decisions. Specifically, Section 230(c)(2)(A) protects website operators from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Arguably, plaintiffs have reasoned, Section 230(c)(2) does not apply to filtering decisions that are based on other objections.In <a href="https://casetext.com/case/song-fi-inc-v-google-inc" target="_blank" rel="noopener">Song Fi v. Google Inc.</a>, another case involving the removal of a video for allegedly inflated view counts that we <a href="https://www.sociallyawareblog.com/2016/03/22/currency/" target="_blank" rel="noopener">previously covered</a>, the plaintiff asserted claims for, among other things, breach of contract and breach of the implied covenant of good faith and fair dealing. The defendant, YouTube, raised a defense under Section 230(c)(2). However, the court interpreted the provision narrowly, and found that although videos with inflated view counts could be a problem for YouTube, they are not “otherwise objectionable” within the meaning of Section 230(c)(2)(A).As we wrote previously, the court concluded that, in light of the CDA’s history and purpose, the phrase “otherwise objectionable” relates to “potentially offensive material, not simply any materials undesirable to a content provider or user.” Further, the requirement that the service provider subjectively finds the blocked or screened material objectionable “does not mean anything or everything YouTube finds subjectively objectionable is within the scope of Section 230(c).” The court did not believe that YouTube’s removal of the video was “the kind of self-regulatory editing and screening that Congress intended to immunize in adopting Section 230(c).” Therefore, the court held that YouTube’s removal of videos with inflated view counts fell outside of the protections offered by Section 230(c)(2).Looking AheadSo where do these cases leave us? Unfortunately for website operators, and happily for plaintiffs, there seems to be a trend developing toward reining in the historically broad scope of Section 230 immunity. Of course, Section 230 still provides robust protection in many cases, and we have also seen <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">a few recent victories</a> for defendants asserting Section 230 defenses. Whatever happens, we will continue to monitor and provide updates on Section 230 as we enter the new year.*          *          *For other Socially Aware blog posts regarding the CDA Section 230 safe harbor, please see the following: <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">In a Rough Year for CDA Section 230, Manchanda v. Google Provides Comfort to Website Operators</a>; <a href="https://www.sociallyawareblog.com/2016/11/22/yelp-section-230-still-has-teeth/" target="_blank" rel="noopener">Yelp Case Shows CDA §230 Still Has Teeth</a>; <a href="https://www.sociallyawareblog.com/2016/08/24/hassell/" target="_blank" rel="noopener">Controversial California Court Decision Significantly Narrows a Crucial Liability Safe Harbor for Website Operators</a>; and <a href="https://www.sociallyawareblog.com/2012/12/17/google-adwords-decision-highlights-contours-of-the-cda-section-230-safe-harbor/" target="_blank" rel="noopener">Google AdWords Decision Highlights Contours of the CDA Section 230 Safe Harbor</a>.

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The Decline and Fall of Section 230?

2016 has been a tough year for a lot of reasons, most of which are outside the scope of this blog (though if you’d like to hear our thoughts about Bowie, Prince

The Decline and Fall of Section 230?

If your company operates a website or blog that hosts user-generated content, you’ll want to read this post carefully.We’re ringing the alarm bell on an important new U.S. copyright law development that, if ignored, could significantly increase your company’s potential liability exposure in connection with user-generated content.If your company hosts user-generated content, such hosted content may include materials that were posted without the permission of the owners of the copyrights in such materials—potentially subjecting your company to copyright infringement liability.For nearly two decades, however, <a href="https://www.law.cornell.edu/uscode/text/17/512" target="_blank" rel="noopener">Section 512(c) of the U.S. Copyright Act</a>, enacted in 1998 as part of the Digital Millennium Copyright Act (DMCA), has provided a safe harbor insulating online service providers from monetary damages for hosting copyright-infringing materials posted by their users. To receive protection under the Section 512(c) safe harbor, service providers must, among other things, designate an agent to receive notifications of claimed infringement with the Copyright Office.If a website operator fails to so designate an agent for its website, that operator runs the risk of incurring monetary damages for copyright-infringing materials hosted on its site. So, if your company is hosting user-generated content, it’s important to have designated an agent with the Copyright Office.By our rough count, over 100,000 online service providers have designated agents with the Copyright Office. Under the Copyright Office’s “interim” regulations that had been in effect since the DMCA’s enactment, a service provider would register by filling out a paper form and filing the completed form with the Copyright Office.Just last week, however, the U.S. Copyright Office rolled out a <a href="https://www.copyright.gov/dmca-directory/" target="_blank" rel="noopener">new online system</a> for the designation of agents to receive notifications of copyright infringement. The new system, effective as of December 1, 2016, replaces the old paper-based system. Under the system, an online service provider with an agent registered through the old system must also register that agent through the new system by December 31, 2017, in order to maintain a valid designation. Failure to do so by that deadline could result in the online service provider no longer receiving the benefits of the Section 512(c) safe harbor in connection with its hosting of user-generated content, at least until such provider finally gets around to registering through the new system.Moreover, going forward, online service providers will need to renew their agent designations every three years in order to maintain safe harbor protection in connection with their hosting of user-generated content. There was no such periodic renewal obligation under the old system.Why is the Copyright Office doing this? Although by no means perfect, the old system was relatively easy to use and has worked well for bloggers and website operators ever since Bill Clinton was president. Why fix something that isn’t broken, particularly if, in fixing the system, this risk is created of online service providers losing safe harbor protection? Not surprisingly, the Copyright Office’s actions have generated <a href="http://blog.ericgoldman.org/archives/2016/10/copyright-office-gratuitously-kills-the-dmca-safe-harbor-for-thousands-of-websites.htm" target="_blank" rel="noopener">some blistering criticism</a> from Internet law pundits.The Copyright Office, however, apparently believes that the system was in fact broken due to the failure of online service providers to keep their agent designation information up to date. For example, in announcing its new registration system, the Copyright Office <a href="https://www.copyright.gov/newsnet/2016/640.html" target="_blank" rel="noopener">noted that it had found</a> that 22 percent of existing agent designations were for defunct service providers and that, with respect to non-defunct service providers, an estimated 65 percent of their agent designations contained inaccurate information. The new system seeks to address this problem by allowing service providers to more efficiently submit and update designated agent information through the use of an online system and by requiring periodic renewals of designations.Perhaps in an effort to further incentivize online service providers to keep their records updated, the cost of designation under the new system will be cheaper than under the old system. Each paper form designation under the old system would have cost a service provider $105, not including additional fees to list non-legal names used by the service provider. Under the new online system, the designation fee is <a href="https://www.copyright.gov/newsnet/2016/640.html" target="_blank" rel="noopener">$6 with no additional fee for alternative names</a>. This same fee would apply to each renewal of an agent designation.The Copyright Office’s new approach also expands the options available to online service providers in designating an agent. Under the old system, service providers were required to name a natural person or a specific position or title. The new regulations provide that a designated agent may be an individual, a specific position or title held by an individual, or a specific department within the service provider’s organization or within a third-party entity.The Copyright Office has released a <a href="https://www.copyright.gov/dmca-directory/help.html" target="_blank" rel="noopener">series of tutorials</a> to assist online service providers in registering an agent under the new system. The Copyright Office regulations adopting the new system can be found <a href="https://www.federalregister.gov/documents/2016/11/01/2016-26257/designation-of-agent-to-receive-notification-of-claimed-infringement" target="_blank" rel="noopener">here</a>.Here are our key takeaways regarding this important development:<ul><li>If your company hosts, stores or even links to user-generated content, it should ensure that it has registered an agent with the Copyright Office. If your company has never registered an agent, it should do so under the new system.</li><li>Even if your company has already registered its DMCA agent with the Copyright Office, if that registration was done under the old paper-based system, it will need to re-register under the new agent designation system by December 31, 2017.</li><li>After registering under the new system, online service providers will need to ensure that they observe the “every three years” deadlines for renewing their registrations.</li><li>Until January 1, 2018, copyright owners seeking to determine whether a blog or website hosting infringing user-generated content is in compliance with the DMCA agent designation requirement will want to check both the <a href="https://www.copyright.gov/onlinesp/list/a_agents.html" target="_blank" rel="noopener">old directory</a> and the <a href="https://dmca.copyright.gov/osp/" target="_blank" rel="noopener">new directory</a>—prior to 2018, it should be sufficient that the requisite agent designation appears in either of the two directories.</li></ul>*          *          *For other Socially Aware blog posts on DMCA agent designation issues, please see: <a href="http://www.sociallyawareblog.com/2016/01/14/new-court-decision-highlights-potential-headache-for-companies-hosting-user-generated-content/" target="_blank" rel="noopener">New Court Decision Highlights Potential Headache for Companies Hosting User-Generated Content</a>; and <a href="http://www.sociallyawareblog.com/2014/06/24/court-holds-that-dmca-safe-harbors-do-not-extend-to-infringement-prior-to-designation-of-agent/" target="_blank" rel="noopener">Court Holds That DMCA Safe Harbor Does Not Extend to Infringement Prior to Designation of Agent</a>. For a recent blog post on risk issues surrounding user-generated content, please see: <a href="http://www.sociallyawareblog.com/2016/08/10/ugcrisk/" target="_blank" rel="noopener">Commercializing User-Generated Content: Five Risk Reduction Strategies</a>.

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New Copyright Office Rule Creates Potential “Gotcha” for Blogs and Websites Hosting User-Generated Content

New Copyright Office Rule Creates Potential “Gotcha” for Blogs and Websites Hosting User-Generated Content

If your company operates a website or blog that hosts user-generated content, you’ll want to read this post carefully. We’re ringing the alarm bell on an import

As we noted in <a href="http://www.sociallyawareblog.com/2016/11/22/yelp-section-230-still-has-teeth/" target="_blank" rel="noopener">our recent post</a> on the Ninth Circuit case Kimzey v. Yelp! Inc., in the right circumstances, Section 230 of the Communications Decency Act (CDA) still provides robust protection against liability for website operators despite the <a href="http://blog.ericgoldman.org/archives/2016/06/wtf-is-going-on-with-section-230-cross-v-facebook.htm" target="_blank" rel="noopener">unusually large</a> number of decisions this year seemingly narrowing the scope of the statute. Defendants notched another Section 230 win recently in <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2334&context=historical" target="_blank" rel="noopener">Manchanda v. Google</a>, a case in the Southern District of New York. The case began in May 2016 when Rahul Manchanda, an attorney, filed a complaint alleging that Google, Yahoo and Microsoft harmed his reputation by indexing certain websites that described him in negative terms.Manchanda asserted various claims against the three defendants, including defamation, libel, slander, tortious interference with contract, breach of fiduciary duty, breach of the duty of loyalty, unfair trade practices, false advertising, unlawful trespass, civil RICO, unjust enrichment, intentional infliction of emotional distress, negligent infliction of emotional distress and trademark infringement. Manchanda sought injunctive relief requiring the defendants to “de-index or remove the offending websites from their search engines” in addition to damages.The court made quick work of dismissing most of Manchanda’s claims on Section 230 grounds, emphasizing that the CDA “immunizes search engines from civil liability for reputational damage resulting from third-party content that they aggregate and republish.” The court went on to note that “[t]his immunity attaches regardless of the specific claim asserted against the search engine, so long as the claim arises from the publication or distribution of content produced by a third party and the alleged injury involves damage to a plaintiff’s reputation based on that content.”Because the majority of Manchanda’s claims were based on the search engines’ publication of third-party websites with no allegation that the defendants created the allegedly defamatory content, and Manchanda’s damages flowed from reputational harms allegedly caused by the third-party websites, Section 230 provided immunity regardless of how Manchanda styled his particular claims.Interestingly, according to the court, the fact that Manchanda sought the removal or de-indexing of links to the third-party websites further demonstrated that “Manchanda’s grievance is with Defendants’ actions as search engines and aggregators”—i.e., as “interactive computer services” protected by Section 230—and not as content providers. And the court noted that “the CDA’s broad protection for internet publishers also protects Defendants from any obligation to remove or de-index any links.” Accordingly, the court held, “Manchanda’s defamation and related claims must be dismissed.”This left only Manchanda’s claims for trademark infringement, unfair trade practices and false advertising, all of which the court also dismissed for reasons that go beyond the focus of this post.One final point, however, is worth noting: Manchanda had also filed a motion for sanctions against the defendants in the amount of $100 million based on the defendants’ alleged failure to comply with a restraining order that had been issued by a New York State court in a different proceeding to which the three search engines were not parties. The court disposed of Manchanda’s order easily, holding that “Defendants here were not party to that litigation and . . . are therefore not bound by that order.”While that result may seem obvious, compare the result in another case <a href="http://www.sociallyawareblog.com/2016/08/24/hassell/" target="_blank" rel="noopener">we wrote about recently</a>, Hassel v. Bird, in which the California Court of Appeal held that Section 230 did not prevent the court from ordering Yelp to remove from its website allegedly defamatory reviews posted by users, even though Yelp was not a party in the underlying defamation suit.In any event, Manchanda breaks little new ground with respect to Section 230 and in years past would have seemed routine, but given the challenges that Section 230 has faced in 2016, Manchanda may provide website operators some comfort that the statute still has teeth.*          *          *For other Socially Aware blog posts regarding the CDA Section 230 safe harbor, please see the following: <a href="http://www.sociallyawareblog.com/2016/11/22/yelp-section-230-still-has-teeth/" target="_blank" rel="noopener">Yelp Case Shows CDA §230 Still Has Teeth</a>; <a href="http://www.sociallyawareblog.com/2016/08/24/hassell/" target="_blank" rel="noopener">Controversial California Court Decision Significantly Narrows a Crucial Liability Safe Harbor for Website Operators</a>; and <a href="http://www.sociallyawareblog.com/2012/12/17/google-adwords-decision-highlights-contours-of-the-cda-section-230-safe-harbor/" target="_blank" rel="noopener">Google AdWords Decision Highlights Contours of the CDA Section 230 Safe Harbor</a>.

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In a Rough Year for CDA Section 230, Manchanda v. Google Provides Comfort to Website Operators

In a Rough Year for CDA Section 230, Manchanda v. Google Provides Comfort to Website Operators

As we noted in our recent post on the Ninth Circuit case Kimzey v. Yelp! Inc., in the right circumstances, Section 230 of the Communications Decency Act (CDA) s

“Yellow journalism” websites are <a href="https://www.washingtonpost.com/national/for-the-new-yellow-journalists-opportunity-comes-in-clicks-and-bucks/2016/11/20/d58d036c-adbf-11e6-8b45-f8e493f06fcd_story.html" target="_blank" rel="noopener">using social media to capitalize on popular ideology</a>. And they’re making a bundle.New York City recently passed <a href="http://gothamist.com/2016/10/27/freelance_protection_nyc.php" target="_blank" rel="noopener">the country’s first law protecting the wages of “gig economy” workers</a>. The Wall Street Journal published an illuminating <a href="http://www.wsj.com/articles/whos-working-in-the-gig-economy-1479920400" target="_blank" rel="noopener">infographic</a> illustrating who’s making a living that way.Twitter <a href="http://www.usatoday.com/story/tech/news/2016/11/15/twitter-suspends-alt-right-accounts/93943194/" target="_blank" rel="noopener">suspended high-profile accounts</a> associated with the “alt-right” movement.<a href="http://www.nbcnewyork.com/news/local/Uber-Ban-on-Upstate-NY-rides-causes-holiday-frustration-403441216.html?_osource=SocialFlowFB_NYBrand" target="_blank" rel="noopener">A state law</a> kept 43,000 wannabe Uber users in upstate New York from ordering a car from the ride-hailing service on Thanksgiving eve.PayPal reported <a href="http://venturebeat.com/2016/11/27/paypal-nearly-13-of-thanksgiving-and-black-friday-shopping-was-done-on-mobile/" target="_blank" rel="noopener">some surprising statistics</a> about this year’s online shopping over Thanksgiving weekend. Check out our own <a href="https://www.sociallyawareblog.com/2015/11/25/cyber-monday-social-commerce-and-the-end-of-an-era/" target="_blank" rel="noopener">blog post</a> from last year on how social commerce is killing off both Black Friday and Cyber Monday.Two new ethics opinions from the D.C. Bar provide <a href="http://www.abajournal.com/news/article/beware_of_imported_contacts_social_media_statements_on_legal_issues_ethics_/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email" target="_blank" rel="noopener">an excellent overview of potential ethical issues raised by social media use by attorneys</a>; among other things, the opinions highlight the need for lawyers to exercise caution when tweeting or posting positions on legal issues (which could potentially create an inadvertent conflict with a client’s interest), and in allowing social media platforms to access their email contacts (which could potentially identify clients or divulge information for which there is an ethical obligation to protect from disclosure). Apparently <a href="http://www.theverge.com/2016/11/29/13776894/pewdiepie-quit-casey-neistat-vlog-youtube-vloggers" target="_blank" rel="noopener">vlogging can be a grind</a> even for the most financially successful social media stars.This New York Times <a href="http://www.nytimes.com/2016/11/30/technology/while-we-werent-looking-snapchat-revolutionized-social-networks.html?smid=fb-share" target="_blank" rel="noopener">piece exploring how Snapchat revolutionized social media</a> discusses some of the unique platform and business model features that <a href="https://www.sociallyawareblog.com/2015/11/10/building-a-successful-social-media-app-four-lessons-learned-from-snapchat/" target="_blank" rel="noopener">we cited last year as responsible for Snapchat’s success</a>.<a href="http://www.nytimes.com/2016/11/28/technology/cnn-brings-in-the-social-app-beme-to-cultivate-a-millennial-audience.html?em_pos=small&emc=edit_tu_20161128&nl=bits&nl_art=2&nlid=69264395&ref=headline&te=1&_r=0" target="_blank" rel="noopener">CNN bought a social media company</a> founded by a YouTube star with a millennial following.Speaking of CNN, that company and other prominent news publishers are <a href="http://digiday.com/publishers/conservative-trolls-attacking-publishers-app-store-ratings/" target="_blank" rel="noopener">getting low app store ratings</a> from people claiming that such publishers have a liberal bias.Google Maps just made it easier to snag a table at usually-crowded restaurants and watering holes.Think twice before <a href="http://www.nytimes.com/2016/11/13/business/cellphone-number-social-security-number-10-digit-key-code-to-private-life.html?smid=fb-nytimes&smtyp=cur&_r=0" target="_blank" rel="noopener">giving out your cellphone number</a>.

Social Links: Yellow journalism rakes in cash; NYC law protects gig economy pay; Twitter suspends “alt-right” accounts

“Yellow journalism” websites are using social media to capitalize on popular ideology. And they’re making a bundle. New York City recently passed the country’s 

Social Links: Yellow journalism rakes in cash; NYC law protects gig economy pay; Twitter suspends “alt-right” accounts