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

2024 Recap: Ten Lords A-Leaping!

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.

Defense lawyers who <a href="http://blogs.wsj.com/law/2016/04/19/lawyers-accused-of-facebook-spying-can-face-ethics-complaint-state-high-court-rules/" target="_blank" rel="noopener">checked out the Facebook page of a plaintiff suing their client</a> can be prosecuted for attorney misconduct, New Jersey judge rules.Norwegian band changes its name to avoid “<a href="http://www.billboard.com/articles/news/7318701/norwegian-band-slutface-changes-name-slotface-social-media-censorship" target="_blank" rel="noopener">social media censorship</a>.”Can public agencies control their <a href="http://www.govtech.com/social/Can-Louisiana-Public-Agencies-Control-Employees-Social-Media-Posts.html" target="_blank" rel="noopener">employees’ social media posts</a>?Google has complete discretion over whether or not to grant “<a href="http://www.sociallyawareblog.com/2015/05/28/status-updates-errand-apps-for-everyone-a-right-to-be-forgotten-update-your-entire-google-search-history/" target="_blank" rel="noopener">right to be forgotten</a>” requests. Some people <a href="http://www.nytimes.com/2016/04/19/technology/google-europe-privacy-watchdog.html?_r=0" target="_blank" rel="noopener">question</a> the sense of that.This U.K. bar offers to save its customers from <a href="http://bzfd.it/1rlq4I5" target="_blank" rel="noopener">bad Tinder dates</a>.Why are <a href="http://well.blogs.nytimes.com/2016/04/21/why-do-girls-have-more-anxiety-than-boys/?smid=fb-nytimes&smtyp=cur" target="_blank" rel="noopener">boys at lower risk for the toxic effects of social media</a> than girls?New data indicates that choice of social channel, headlines and post length can <a href="http://www.thedrum.com/news/2016/04/18/facebook-and-linkedin-share-load-b2c-and-b2b-marketers" target="_blank" rel="noopener">maximize shares on social media</a>.Will the new <a href="https://itunes.apple.com/us/app/down-to-lunch/id991526007?mt=8" target="_blank" rel="noopener">Down to Lunch</a> networking app continue to grow in popularity despite hitting some all-too-common <a href="http://www.nytimes.com/2016/04/22/technology/a-hot-app-discovers-virality-and-its-downsides.html?emc=edit_tu_20160421&nl=bits&nlid=69264395&te=1" target="_blank" rel="noopener">social media snags</a>?The NYPD’s anti-encryption #UnlockJustice social media campaign fails. Big time.These puppies <a href="http://www.digitaltrends.com/photography/dogs-on-instagram/" target="_blank" rel="noopener">earn HOW MUCH per Instagram post</a>?! They’d better be in compliance with the FTC’s disclosure rules.To stay abreast of social media-related legal developments, please subscribe to our <a href="mailto:sociallyaware@mofo.com?subject=Please%20Sign%20Me%20Up%20for%20the%20Socially%20Aware%20Newsletter">free newsletter</a>.

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

Social Links—Facebook-spying litigators; employees’ social media posts; Europe’s Right To Be Forgotten

Defense lawyers who checked out the Facebook page of a plaintiff suing their client can be prosecuted for attorney misconduct, New Jersey judge rules. Norwegian

Social Links—Facebook-spying litigators; employees’ social media posts; Europe’s Right To Be Forgotten

<a href="https://en.wikipedia.org/wiki/Emoticon">Emoti</a><a href="https://en.wikipedia.org/wiki/Emoticon">cons</a> and <a href="https://en.wikipedia.org/wiki/Emoji">emoji</a> are ubiquitous in online and mobile communications; <a href="http://thenextweb.com/insider/2015/06/23/the-psychology-of-emojis/" target="_blank" rel="noopener">according to one study</a>, 74 percent of Americans use emoticons, emoji and similar images on a regular basis.Given their popularity, it comes as no surprise that courts are increasingly being called upon to <a href="http://www.slate.com/articles/technology/users/2015/10/emoticons_and_emojis_as_evidence_in_court.single.html" target="_blank" rel="noopener">evaluate the meaning of emoticons and emoji</a> that are included in material entered into evidence, an exercise that has highlighted just how subjective—and fact-specific—interpretations of these symbols can be.For example, in a opinion last year dismissing a male law school student’s suit against local police and a female classmate for having the male student formally investigated based, at least in part, on text messages that he had sent, a federal district court in Michigan held that the male student’s text messages showed that he may have had an intent to harass the female classmate despite “the inclusion of the emoticon, a ‘-D,’ which appears to be a wide open-mouth smile.” The court held that the emoticon “does not materially alter the meaning of the text message,” in which the male student otherwise wrote that he wanted to do “just enough to make [the female student] feel crappy.”On the other hand, in a separate case, also arising in Michigan, the Michigan Court of Appeals held that the ‘:P’ emoticon accompanying a comment allegedly accusing a city worker of corruption made it “patently clear that the commenter was making a joke.”Here are some other notable instances in which emoticon and emoji were among the evidence courts were asked to evaluate:<ul><li>In sexual harassment case brought by the female co-CEO of a Delaware corporation against her partner, opinion issued last summer, the Delaware Chancery Court held that a “smiley-face emoticon at the end of [the defendant’s] text message suggests he was amused by yet another opportunity to harass the plaintiff.</li><li>In the January <a href="http://www.wired.com/2015/02/silk-road-trial-wireds-full-coverage/" target="_blank" rel="noopener">trial of a California man accused of operating a black market called Silk Road</a> over the Internet, the judge instructed the jury members that they should take into account the emoji included in the social media posts and other electronic communications submitted into evidence, stating that the <a href="http://www.nytimes.com/2015/01/29/nyregion/trial-silk-road-online-black-market-debating-emojis.html?smid=pl-share" target="_blank" rel="noopener">emoji are ”part of the evidence of the document</a>.” (The defendant, Ross Ulbricht, was ultimately convicted of all seven of the counts he faced; the government’s evidence that he ran “Silk Road’s billion-dollar marketplace under the pseudonym the Dread Pirate Roberts was practically <a href="http://www.wired.com/2015/02/silk-road-ross-ulbricht-verdict/" target="_blank" rel="noopener">overwhelming</a>.”)</li><li>In a petition for certiorari by Anthony Elonis, a Pennsylvania man whose conviction for posting threatening status updates to Facebook was ultimately <a href="http://www.nytimes.com/2015/06/02/us/supreme-court-rules-in-anthony-elonis-online-threats-case.html" target="_blank" rel="noopener">overturned</a> by the U.S. Supreme Court last year, Elonis cited his inclusion of the emoticon “:-P” several times as part of his arguments that: (1) he lacked the intent required for conviction; and (2) his posts were easily misunderstood and communications that are subject to misunderstandings shouldn’t be criminalized. Holding that “Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal con­duct requirement of “awareness of some wrongdoing,” the Supreme Court’s <a href="http://www.supremecourt.gov/opinions/14pdf/13-983_7l48.pdf" target="_blank" rel="noopener">opinion</a> didn’t mention emoticons at all, however.</li></ul>Each of these decisions involved a court’s assessment of a lengthy set of facts, of course. Context clearly counts. The point is that, in the words of WIRED’s<a href="http://www.wired.com/2015/02/emoji-in-court-cases/" target="_blank" rel="noopener"> Julia Greenberg</a>, “When the digital symbol for a gun, a smile, or a face with stuck-out tongue comes up in court, they aren’t being derided or ignored. Emoji matter.”And interpreting them will continue to be a challenge for courts. Emoticons and emoji are often ambiguous, sometimes supporting the accompanying text, sometimes undermining it. A smiley face with a tongue sticking out that accompanies a message purporting to confirm a deal could indicate the sender’s happiness that the deal has been concluded, or it could indicate that the sender’s purported confirmation is a joke.Further complicating the interpretation of emoji is the fact that <a href="http://unicode.org/emoji/charts/full-emoji-list.html" target="_blank" rel="noopener">the same emoji character will have a different appearance when viewed on different platforms</a>. For example, the popular “grinning face with smiley eyes” emoji that, say, a Microsoft platform user sees is <a href="http://grouplens.org/blog/investigating-the-potential-for-miscommunication-using-emoji/" target="_blank" rel="noopener">not identical</a> to the “grinning face with smiley eyes” emoji that, say, a Google platform user sees—even if the emoji was sent by the former to the latter. Moreover, a <a href="http://www.vox.com/2016/4/13/11422886/emoji-interpretation-different" target="_blank" rel="noopener">recent study</a> found that the differences in an emoji’s appearance across platforms can result in different emotional responses to the emoji based on the platform from which it is viewed. As a result, a court seeking to interpret an emoji will need to determine in each situation which version of the emoji to consider: The version that appeared to the sender of the communication at issue or the version that appeared to the recipient of that communication?It’s been said that one shouldn’t send a message that he or she wouldn’t want to see on the front page of the New York Times. I’d like to suggest a corollary rule: If you want a message to be free from ambiguity, don’t include an emoticon or emoji in the message.

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Mixed Messages: Courts Grapple With Emoticons and Emoji

Mixed Messages: Courts Grapple With Emoticons and Emoji

Emoticons—such as :-)—and emoji—such as —are ubiquitous in online and mobile communications; according to one study, 74 percent of Americans use emoticons, emoj

We’re trying something new here at Socially Aware: In addition to our usual social-media and tech-law analyses and updates, we’re going to end each work week with a list of links to interesting social media stories around the Web, primarily things that caught our eye during the week that we may or may not ultimately write about in a future blog post.Here’s our first list – enjoy!<a href="http://bit.ly/1VqenvJ">Should prisoners be allowed to have Facebook pages?</a>Why do older people love Facebook? A New York Times writer <a href="http://nyti.ms/1VnG7RM" target="_blank" rel="noopener">asked her 61-year-old dad.</a>Judge<a href="http://bit.ly/1SbGoS1" target="_blank" rel="noopener"> upholds ex-cop’s murder conviction </a>despite defense’s claim that juror’s Facebook posts evidenced a dislike for police.The CIA’s venture capital arm is <a href="http://bit.ly/1qM6HYd" target="_blank" rel="noopener">investing</a> in companies that develop artificial intelligence to sift through enormous numbers of social media postings and decipher patterns.Another cringe-worthy social media marketing campaign gaffe, this time by KFC Australia.Facebook will now allow businesses to <a href="http://tcrn.ch/1VmdG7s" target="_blank" rel="noopener">deliver automated customer support through chatbots</a>.

Social Links: A social media marketing fail; Facebook and prisoners, jurors, older people

We’re trying something new here at Socially Aware: In addition to our usual social-media and tech-law analyses and updates, we’re going to end each work week wi

Social Links: A social media marketing fail; Facebook and prisoners, jurors, older people

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The Internet of Things: Interoperability, Industry Standards & Related IP Licensing Approaches (Part 2)

The Internet of Things: Interoperability, Industry Standards & Related IP Licensing Approaches (Part 2)

In an article published here in January we addressed some of the more significant Internet of Things (IoT) -specific standards and initiatives and emphasized th

DocuSign, Inc

enercity AG

SoftBank Vision Fund

TDK and its subsidiary EPCOS

Tele Columbus

United Internet/1&1

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Kristina has more than 20 years of experience advising clients across many industries, including the software, internet, mobility, media, and consumer electronics industries, with a particular focus o

Kristina Ehle

Kristina Ehle has more than 20 years of experience advising clients across many industries, including the software, internet, mobility, media, and consumer electronics industries, with a particular focus on technology-driven and IP-heavy transactions.

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Digital Single Market Strategy Update: Europe Proposes Further Harmonisation of Consumer Protection Laws

Digital Single Market Strategy Update: Europe Proposes Further Harmonisation of Consumer Protection Laws

The European Commission has published two draft directives on the supply of digital content and the online sale of goods that aim to help harmonise consumer law

Today’s companies compete not only for dollars but also for likes, followers, views, tweets, comments and shares. “Social currency,” as <a href="http://vivaldipartners.com/vpsocialcurrency/about" target="_blank" rel="noopener">some researchers call it</a>, is becoming increasingly important and companies are <a href="http://www.bizjournals.com/triangle/news/2015/02/18/duke-fuqua-business-cmo-survey-social-media-budget.html" target="_blank" rel="noopener">investing heavily</a> in building their social media fan bases. In some cases, this commitment of time, money and resources has resulted in staggering success. Coca-Cola, for example, has <a href="https://www.facebook.com/cocacola" target="_blank" rel="noopener">amassed over 96 million likes</a> on its Facebook page and LEGO’s YouTube videos have been <a href="https://www.youtube.com/user/LEGO/about" target="_blank" rel="noopener">played over 2 billion times</a>.With such impressive statistics, there is no question that a company’s social media presence and the associated pages and profiles can be highly valuable business assets, providing an important means for disseminating content and connecting with customers. But how much control does a company really have over these social media assets? What recourse would be available if a social media platform decided to delete a company’s page or migrate its fans to another page?The answer may be not very much. Over the past few years, courts have repeatedly found in favor of social media platforms in a number of cases challenging the platforms’ ability to delete or suspend accounts and to remove or relocate user content.Legal Show-Downs on Social Media Take-DownsIn a recent California case, <a href="http://www.bloomberglaw.com/public/desktop/document/Lewis_v_YouTube_LLC_No_H041127_2015_BL_428281_Cal_App_6th_Dist_De?1456536437" target="_blank" rel="noopener">Lewis v. YouTube, LLC</a>, the plaintiff Jan Lewis’s account was removed by YouTube due to allegations that she artificially inflated view counts in violation of YouTube’s Terms of Service. YouTube eventually restored Lewis’s account and videos but not the view counts or comments that her videos had generated prior to the account’s suspension.Lewis sued YouTube for breach of contract, alleging that YouTube had deprived her of her reasonable expectations under the Terms of Service that her channel would be maintained and would continue to reflect the same number of views and comments. She sought damages as well as specific performance to compel YouTube to restore her account to its original condition.The court first held that Lewis could not show damages due to the fact that the YouTube Terms of Service contained a limitation of liability provision that disclaimed liability for any omissions relating to content. The court also held that Lewis was not entitled to specific performance because there was nothing in the Terms of Service that required YouTube to maintain particular content or to display view counts or comments. Accordingly, the court affirmed dismissal of Lewis’s complaint.In a similar case, <a href="https://docs.justia.com/cases/federal/district-courts/california/candce/5:2015cv03221/289340/27" target="_blank" rel="noopener">Darnaa LLC v. Google, Inc.</a>, Darnaa, a singer, posted a music video on YouTube. Again, due to allegations of view count inflation, YouTube removed and relocated the video to a different URL, disclosing on the original page that the video had been removed for violating its Terms of Service. Darnaa sued for breach of the covenant of good faith and fair dealing, interference with prospective economic advantage and defamation. In an email submitted with the complaint, Darnaa’s agent explained that she had launched several large campaigns (each costing $250,000 to $300,000) to promote the video and that the original link was already embedded in thousands of websites and blogs. Darnaa sought damages as well as an injunction to prevent YouTube from removing the video or changing its URL.The court dismissed all of Darnaa’s claims because YouTube’s Terms of Service require lawsuits to be filed within one year and Darnaa had filed her case too late. In its discussion, however, the court made several interesting points. In considering whether YouTube’s Terms of Service were unconscionable, the court held that, although the terms are by nature a “contract of adhesion,” the level of procedural unconscionability was slight, since the plaintiff could have publicized her videos on a different website. Further, in ruling that the terms were not substantively unconscionable, the court pointed out that “[b]ecause YouTube offers its hosting services free of charge, it is reasonable for YouTube to retain broad discretion over [its] services.”Although the court ultimately dismissed Darnaa’s claims based on the failure to timely file the suit, the decision was not a complete victory for YouTube. The court granted leave to amend to give Darnaa the opportunity to plead facts showing that she was entitled to equitable tolling of the contractual limitations period. Therefore, the court went on to consider whether Darnaa’s allegations were sufficient to state a claim. Among other things, the court held that YouTube’s Terms of Service were ambiguous regarding the platform’s rights to remove and relocate user videos in its sole discretion. Thus, the court further held that if Darnaa were able to amend the complaint to avoid the consequences of the failure to timely file, then the complaint would be sufficient to state a claim for breach of the contractual covenant of good faith and fair dealing.By contrast, the court found no such ambiguity in <a href="https://casetext.com/case/song-fi-inc-v-google-inc" target="_blank" rel="noopener">Song Fi v. Google Inc.</a>, a case with facts similar to those in Darnaa. In Song Fi, the plaintiff asserted claims for, among other things, breach of contract and breach of the implied covenant of good faith and fair dealing. YouTube raised a defense under the <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Communications Decency Act (CDA) Section 230(c)(2)(A)</a> which states that no provider of an interactive computer service is liable for removing content that it considers to be obscene, violent, harassing or “otherwise objectionable.”The Song Fi court, interpreting this provision narrowly, 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), and thus YouTube did not have immunity under that provision. Specifically, 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).” Therefore, the court held that videos with inflated view counts fell outside the statutory safe harbor granted by Section 230(c)(2).Despite finding Section 230(c)(2) inapplicable, the court ultimately dismissed all of Song Fi’s claims. Notably, the court dismissed the contract-based claims with prejudice, holding that, although YouTube’s Terms of Service were “inartfully drafted,” they “unambiguously” reserved to the right for YouTube to remove content in its sole discretion and to discontinue any aspect of its service without liability. Therefore, the court held, the Terms of Service “unambiguously foreclose[d]” Song Fi’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing.Facebook had more luck than did Google in asserting a CDA Section 230 defense in <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2089&context=historical" target="_blank" rel="noopener">Sikhs For Justice “SFJ”, Inc. v. Facebook, Inc.</a>, a case brought by a human rights group advocating for Sikh independence in the Indian state of Punjab. Sikhs for Justice (SFJ) alleged that Facebook had blocked its page in India at the behest of the Indian government. SFJ sued in the Northern District of California, asserting several causes of action including race discrimination, and sought damages and injunctive relief.The Sikhs for Justice court ruled in favor of Facebook, citing CDA Section 230(c)(1), which states that “no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  Based on this statutory language, Section 230(c)(1) has been interpreted to provide a broad immunity for website operators against liability arising from user generated content. In dismissing the suit, the Sikhs for Justice court explained that the content at issue was provided by SFJ, not by Facebook, and that Facebook’s refusal to publish the SFJ page in India was “clearly publisher conduct” that is immunized by Section 230(c)(1).Notably, the court did not mention the Section 230(c)(2) safe harbor for blocking user content, which YouTube had asserted in SongFi as discussed above. <a href="http://blog.ericgoldman.org/archives/2015/11/facebook-can-legally-block-pages-without-any-explanation-sikhs-for-justice-v-facebook-forbes-cross-post.htm" target="_blank" rel="noopener">According to some commentators, </a> the Sikhs for Justice court’s failure to discuss Section 230(c)(2) “highlights its weakness as a safe harbor.”In another case against Facebook, <a href="http://blog.ericgoldman.org/archives/2010/11/facebook_not_li_2.htm" target="_blank" rel="noopener">Young v. Facebook, Inc.</a>, the plaintiff, Karen Beth Young, found herself suddenly banned from Facebook after sending friend requests to strangers. She sued for breach of the implied covenant of good faith and fair dealing as well as several other claims. In contrast to some of the cases discussed above, the Young court found that “it is at least conceivable that arbitrary or bad faith termination of user accounts … with no explanation at all could implicate the implied covenant of good faith and fair dealing,” particularly since Facebook had provided in its Statement of Rights and Responsibilities that users’ accounts should not be terminated for reasons other than those described in the Statement. Nonetheless, the court dismissed Young’s suit because her complaint did not sufficiently allege that the account termination was undertaken in bad faith or violated Facebook’s contractual obligations.The cases above illustrate how difficult it is for social media users to object to deletion or suspension of accounts or to removal or relocation of content based on a platform’s contractual obligations under the applicable terms of service. Users have met with similar obstacles in asserting a property right in social media content.For example, <a href="https://www.docketalarm.com/cases/Florida_Southern_District_Court/0--13-cv-61582/Mattocks_v._Black_Entertainment_Television_LLC/101/" target="_blank" rel="noopener">Mattocks v. Black Entertainment Television LLC</a> (which we have <a href="http://www.sociallyawareblog.com/2014/11/04/whats-in-a-like/" target="_blank" rel="noopener">discussed previously</a>) involved a dispute between BET and Stacey Mattocks, whom BET had hired to help manage the unofficial Facebook fan page for one of its shows. When Mattocks restricted BET’s access to the fan page, BET asked Facebook to “migrate” the fans to another official page that BET had created and Facebook granted the request. Mattocks sued BET for conversion of her business interest in the Facebook fan page. The court, holding that Mattocks failed to establish that she owned a property interest in the page’s likes, granted BET’s motion for summary judgment. “If anyone can be deemed to own the ‘likes’ on a Facebook page,” the court stated, “it is the individual users responsible for them.” While the Mattocks case did not directly target the social media platform itself, it does demonstrate how difficult it can be for a plaintiff to challenge social media platforms’ decisions to remove or relocate content based on purported ownership of that content.Safeguarding Your Social Media CurrencyUltimately, the cases discussed above show that social media platforms have significant control over what is (or isn’t) published on their websites, regardless of the amount of time and effort that users have spent building up their individual pages and profiles. With all of this in mind, what can individuals and companies do to protect their social media currency? How can you help ensure that your hard-earned fans, likes, comments and views do not suddenly disappear?A good tip is to read the applicable terms of service carefully to understand the platform’s rules and the reasons for which a platform may delete or suspend accounts or remove or relocate content. Make sure to comply with the platform’s rules, including those regarding contests, collection and use of user information and content guidelines. Users should err on the side of caution, and avoid posting anything that could be deemed offensive or obscene or that might infringe upon other parties’ intellectual property rights. And it goes without saying that users should avoid fraudulent practices, such as artificially driving up view counts or posting fake comments.Most of all, businesses and individuals should keep in mind that social media platforms have broad discretion when it comes to decisions about what to publish and where. As such, consider spreading your company’s social media marketing efforts across a number of different platforms to minimize the impact of sudden content removals or relocations on any one platform. At the end of the day, every social media account—even those with millions of likes or views—is controlled not by the user that created the account but by the platform that hosts it.

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How to Protect Your Company’s Social Media Currency

How to Protect Your Company’s Social Media Currency