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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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

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CHARACTER.AI SUED IN TWO STATESCharacter Technologies has been hit with two lawsuits, including a wrongful death suit (among other claims), in less than two months over its popular Character.ai chatbot. The first was filed in the U.S. District Court for the Middle District of Florida (<a href="https://d34mgxl0pedajf.cloudfront.net/wp-content/uploads/2024/10/FILED-COMPLAINT_Garcia-v-Character-Technologies-Inc-1.pdf" target="_blank">Garcia v. Character Technologies Inc.</a>) by the mother of a Florida teenager who <a href="https://www.fastcompany.com/91215310/character-ai-app-lawsuit-legal-complaint-teen-suicide-chatbot-google" target="_blank">tragically committed suicide</a> after the chatbot allegedly encouraged the child to do so. The Plaintiff claims her son became instantly addicted to Character.ai and “fell in love” with the bot, leading to drastic behavioral changes such as sleep deprivation, school-related issues, and low self-esteem, which culminated in the child’s death. Just a few weeks later, two plaintiffs in Texas <a href="https://www.documentcloud.org/documents/25450619-filed-complaint/" target="_blank">filed suit</a> alleging that Character.ai <a href="https://www.npr.org/2024/12/10/nx-s1-5222574/kids-character-ai-lawsuit" target="_blank">abused the plaintiffs’ children</a> by exposing them to hypersexualized content, encouraging self-harm, and suggesting they should kill their parents. Both suits allege that the Character.ai chatbot is intentionally designed in a way that exploits minors by simulating human interaction, creating emotional dependence, and failing to implement safeguards against misuse. Given that these are the first major cases to seek damages related to anthropomorphized AI tech, it will be interesting to see whether juries find Character.ai liable, as this could spawn waves of similar lawsuits.MAJOR RECORD LABELS PETITION SUPREME COURT OVER VERDICT REVERSALThree of the world’s largest entertainment companies—Sony Music, Warner Music, and Universal Music—have <a href="https://tmsnrt.rs/3SX6Do2" target="_blank">petitioned the U.S. Supreme Court</a> to reconsider an appellate ruling that wiped out a $1 billion jury verdict in their suit against internet service provider Cox Communications. In 2019, a <a href="https://www.reuters.com/article/lifestyle/cox-to-pay-1-billion-to-music-labels-publishers-over-piracy-infringement-idUSKBN1YO0DE/" target="_blank">Virginia jury</a> found Cox liable for rampant music piracy by the company’s customers and failure to act despite receiving thousands of infringement notices. The verdict was <a href="https://business.cch.com/ipld/SonyMusicEntmtCoxComms4C20240220.pdf" target="_blank">overturned</a> earlier this year by the U.S. Court of Appeals for the 4th Circuit, which confirmed the jury’s finding of willful contributory infringement, but called for a new trial on damages because Cox did not directly profit from the piracy. Unsurprisingly, the plaintiffs appealed, and it appears the Supreme Court is poised to take the case. In a <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24-181.html" target="_blank">one-sentence order</a>, the High Court has invited the solicitor general to file a brief expressing the views of the United States. This is a strong indication that the Court is interested in hearing the case. With a new administration set to take the reins in Washington next month, it seems likely that appellate attorney <a href="https://www.scotusblog.com/2024/11/trump-taps-lawyer-who-argued-his-immunity-case-for-solicitor-general/" target="_blank">D. John Sauer</a> will be solicitor general. Sauer’s disposition toward IP cases is tough to predict, as his work has largely focused on hot-button social issues. A brief in the case may give insight into Sauer’s positions on copyright law and corporate liability.X CLAIMS OWNERSHIP OF ALEX JONES ACCOUNTThe asset liquidation of Alex Jones’s <a href="https://storage.courtlistener.com/recap/gov.uscourts.txsb.459750/gov.uscourts.txsb.459750.882.0_1.pdf" target="_blank">intellectual</a> and tangible property in the bankruptcy proceeding following the $1.5 billion <a href="https://www.statesman.com/story/news/politics/state/2024/06/06/timeline-lawsuits-alex-jones-sandy-hook-shooting-infowars-false-claims/73985486007/" target="_blank">defamation judgment</a> against him has hit an unusual speedbump. At issue is Jones’s X account. With its 3.4 million followers, the account is among the highest-profile IP assets on the auction block. But here’s the thing: X has <a href="https://storage.courtlistener.com/recap/gov.uscourts.txsb.459750/gov.uscourts.txsb.459750.937.0.pdf?ref=404media.co" target="_blank">filed an objection</a> claiming that the account belongs to it, not Jones, and is therefore exempt from an asset sale. This raises several interesting questions and a judgment either way could have wide-ranging implications for all social media platforms. Though X’s <a href="https://x.com/en/tos" target="_blank">Terms of Service</a> state that users maintain ownership of “any Content you submit, post or display on or through the Services,” the terms do not explicitly define who actually owns the account. An ownership argument in this context is unusual. We’ve been <a href="/topics/owned-second-circuit-holds-that-traditional-principles-of-property-law-apply-to-social-media-accounts" target="_blank">covering</a> social media account ownership issues <a href="/topics/social-links-social-media-account-ownership-once-again-in-the-spotlight" target="_self">for years</a> and in the majority of cases the conflict is between employee/employer or company/consultant. X may very well prevail in this action. Users own their content, but the account itself will likely be seen as an extension of a user’s license to access and use the platform’s services. We’ll be following this one very closely.X LAWSUIT AGAINST ISRAELI DATA SCRAPING FIRM REVIVEDIt appears that Israeli firm Bright Data will be back in court facing an amended version of a complaint from X that was <a href="https://casetext.com/case/x-corp-v-bright-data-ltd-1" target="_blank">dismissed last May</a>. As we <a href="/topics/california-federal-court-holds-x-s-claims-against-scraper-preempted-by-federal-law" target="_self">reported in June</a>, X alleged that Bright Data’s scraping and selling of data from X violated the social media giant’s Terms of Service and the U.S. District Court for the Northern District of California held that X’s claims were preempted by federal copyright law. Though the court declined to allow amendments related specifically to Bright Data’s scraping operations, it granted X’s motion for leave to amend the company’s trespass to chattels claims and fraudulent business acts allegations. Judge William H. Alsup ruled that X’s updated complaint sufficiently alleges that Bright Data improperly accessed X’s servers, writing: “X Corp. newly alleges that scrapers traverse the X service in patterns markedly different from humans or authorized machines, that scrapers thus use underlying server capacity in abnormal proportions, and that this results in intermittent, isolated server failures and a ‘glitchy, lagged user experience’ for X’s human users.” Judge Alsup added that X also properly alleged that if it hadn’t purchased “millions of dollars of server capacity,” the alleged scraping would have resulted in “catastrophic system failures,” concluding that, with these revised allegations, “X Corp.’s proposed complaint now sufficiently alleges server impairment from scrapers accessing its service. . . Bright Data does not contest that if X Corp. states trespass to chattels as to data scrapers, it plausibly does so as to Bright Data, too. This order will assume as much.” You can read Judge Alsup’s thorough, and surprisingly entertaining, <a href="https://www.courtlistener.com/docket/67637345/156/x-corp-v-bright-data-ltd/" target="_blank">ruling</a>. Now that this case is set to move forward, we’ll see if it will have wider implications on the legalities of data scraping and platform protection.META PREVAILS IN IMMUNITY SUITUniversity of Massachusetts Amherst professor <a href="https://en.wikipedia.org/wiki/Ethan_Zuckerman" target="_blank">Ethan Zuckerman</a> has lost his bid for immunity from potential lawsuits alleging breach of contract and violation of federal criminal computer fraud laws related to his “Unfollow Everything 2.0” browser extension. The extension is designed to allow users to turn off the newsfeeds assembled for them by Facebook’s algorithms with one click, blocking unwanted content and advertisements. Unfollowing functionality is already in place on Facebook but requires unfollowing groups and pages individually. In the <a href="https://casetext.com/case/zuckerman-v-meta-platforms-inc" target="_blank">November 22 ruling</a>, Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California wrote that Zuckerman’s “alleged injury is too contingent upon uncertain events to satisfy the constitutional ripeness requirement” and that the request for relief is too speculative because Zuckerman has not actually released the browser extension. Last May, Zuckerman filed a <a href="https://knightcolumbia.org/documents/gu63ujqj8o" target="_blank">preemptive suit</a> against Meta requesting immunity under Section 230, asking the court to declare that his extension would not violate Facebook’s <a href="https://www.facebook.com/legal/terms?_rdr" target="_blank">Terms of Service</a> or federal computer fraud laws, but this action was also rejected. The current case was dismissed without prejudice, so Zuckerman could refile it if he ever releases the Unfollow Everything 2.0 extension, but after two court losses, he faces significant headwinds.UBER’S ARBITRATION CLAUSE UPHELD BY APPEALS COURTIn a <a href="https://aboutblaw.com/bgm7" target="_blank">5–2 decision</a>, the New York Court of Appeals has ruled that a plaintiff’s legal claims against Uber must go through arbitration—even though her action was currently pending before a court. The ruling stems from a November 2020 lawsuit brought by plaintiff Emily Wu, who originally agreed to a prior version of Uber’s Terms of Service without mandatory arbitration. Uber amended its <a href="https://www.uber.com/legal/en/document/?name=general-terms-of-use&country=united-states&lang=en" target="_blank">Terms of Service</a> in January 2021, updating its mandatory arbitration clause, which Wu agreed to.At the heart of the case is the plaintiff’s argument that the arbitration clause should not apply to claims pending in court, even though the amended Terms of Service purported to apply to “any claims” without limitation. Among other things, Wu claimed that Uber’s notice to Wu violated <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_2_communication_with_person_represented_by_counsel/" target="_blank">Rule 4.2 of the Rules of Professional Conduct</a> for attorneys, which bars the other party in a pending lawsuit from directly contacting a party they know is represented by counsel. The Court of Appeals <a href="https://www.reuters.com/legal/government/column-uber-clickwrap-contract-gets-blessing-nys-top-court-theres-twist-2024-11-26/" target="_blank">disagreed with Wu</a>, maintaining that (a) a mass email notification sent by Uber clearly explained there would be changes to the arbitration agreement and that Wu entered into a contract when she agreed to the revised terms; (b) Uber did not know that Wu was represented by counsel when it sent the mass notice; and (c) even if the claim had merit, Wu’s requested remedies were too extreme and she did not even ask for the more targeted and sensible remedy of simply voiding the arbitration agreement and allowing the dispute to move forward in court.In his majority opinion, Judge Anthony Cannataro wrote, “For essentially as long as there have been written contracts, parties have entered them without first carefully reviewing their terms. That failure can have legal consequences, whether the party is a sophisticated entity or an ordinary consumer, and whether the contract is presented on paper or through an electronic pop-up window.”

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

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.











Anthony Ramirez

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

Character Technologies has been hit with two lawsuits, including a wrongful death suit (among other claims), in less than two months over its popular Character.ai chatbot. The first was filed in the U.S. District Court for the Middle District of Florida (Garcia v. Character Technologies Inc.) by the mother of a Florida teenager who tragically committed suicide after the chatbot allegedly encouraged the child to do so. 

FAKE REVIEW RULES TAKE EFFECTThe Federal Trade Commission’s new rules banning phony online reviews are now in effect. These rules aim to curb false consumer testimonials, the buying of fake reviews from brokers, review suppression, falsifying social media influence, and misrepresentation of company ownership for review sites. As <a href="/topics/social-links-recent-developments-in-the-law-and-business-of-social-media" target="_self">we reported</a> last August, fake and bot-generated reviews have proliferated at an alarming rate, potentially leading to consumer cynicism, mistrust, and unfair competition. These <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/r311003consumerreviewstestimonialsfinalrulefrn.pdf" target="_blank">new FTC rules</a> have some teeth: non-compliance could result in a $51,744 fine for each violation. It remains to be seen how e-commerce behemoths that host tens of millions of online reviews will navigate compliance, but it’s probably a safe bet there will be some late nights for IT personnel in Seattle and Mountain View. <a href="https://www.ftc.gov/news-events/news/press-releases/2024/08/federal-trade-commission-announces-final-rule-banning-fake-reviews-testimonials" target="_blank">FTC chair Lina Khan said</a>, “Fake reviews not only waste people’s time and money, but also pollute the marketplace and divert business away from honest competitors. [The rule will] protect Americans from getting cheated, put businesses that unlawfully game the system on notice, and promote markets that are fair, honest, and competitive.” It will be interesting to see what e-commerce and review sites look like in six months.MASS. SUPREME COURT RULES IN FAVOR OF MEDICAL DATA TRACKINGThe Supreme Judicial Court of Massachusetts <a href="https://www.reuters.com/legal/transactional/web-browsing-tracking-doesnt-violate-massachusetts-wiretap-law-court-rules-2024-10-24/" target="_blank">has ruled</a> that website tracking software does not run afoul of the <a href="https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1284#:~:text=1968%2C%20(Pub.-,L.,wiretapping%20by%20government%20officials%2C%20and" target="_blank">1968 Wiretap Act</a>, and sites can continue tracking browser activity without the consent of the user. The <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/lbpgjobqqvq/10242024sjc_wiretap.pdf" target="_blank">5–1 ruling</a> maintains that two hospitals named in the action—Beth Israel Deaconess Medical Center and New England Baptist Hospital—were not breaking the law by collecting and sharing patient data with tracking sites. The plaintiff alleged that the collected data allowed tech companies to profit from private medical data without consent.Writing for the majority, Judge Scott Kafker noted that the 1968 Wiretap Act does not apply to website operators who track data from those who visit, and the law’s legislative history does not lead to the conclusion that it was meant to apply so broadly as to potentially criminalize the interception of web browsing. He added, “If the legislature intends for the wiretap act’s criminal and civil penalties to prohibit the tracking of a person’s browsing of, and interaction with, published information on websites, it must say so expressly.”In a strongly worded dissent, Judge Dalila Wendlandt argued that the Wiretap Act’s prohibition on electronic surveillance does apply to browser tracking because, despite the implied privacy of the hospitals’ online communications, third parties were allowed to track and record patients’ healthcare information. She wrote, “The court decides that the wiretap act provides no recourse despite its prohibition on surreptitious electronic surveillance by private parties. Lamentably, the court is right about one thing; the Legislature will need to correct today’s error.”With hundreds of <a href="https://www.reuters.com/legal/transactional/massachusetts-top-court-considers-allowing-website-tracking-class-actions-2024-04-03/" target="_blank">similar cases</a> filed across the country, this ruling is unlikely to be the final word.LAWSUIT AGAINST X THROWN OUT IN DRAMATIC FASHIONFormer Twitter (now X) executive Mark Schobinger’s attempt to gain class status in a suit over unpaid bonuses <a href="https://www.courthousenews.com/former-twitter-employees-denied-class-action-certification-in-bonuses-suit/" target="_blank">failed in spectacular fashion</a> in a San Francisco courtroom this month. In a <a href="https://www.courthousenews.com/wp-content/uploads/2024/10/schobinger-vs-twitter-order-denying-motion-class-certification.pdf" target="_blank">scathing order</a>, U.S. District Judge Vince Chhabria wrote that Schobinger “might fit nicely into this case as a defendant,” adding that the suit “reflects remarkable hubris.” The crux of Judge Chhabria’s order comes down to one simple thing—hypocrisy. It turns out that Schobinger himself was a leading advocate for not paying out the very bonuses he is now seeking when he was Twitter’s senior director of compensation. Discovery in the case revealed a litany of messages, emails, and alleged conversations in which Schobinger aggressively lobbied against the bonus payments. Schobinger’s attorney attempted a last-minute swap to bring in a new, untainted plaintiff, but Judge Chhabria stuck to the dance-with-who-brung-ya protocol, saying: “The fact that Schobinger’s lawyer thought it was a good idea to file a motion for class certification in the face of this evidence (as opposed to dropping the case or seeking to substitute another plaintiff immediately upon discovering it) shows that she is totally unqualified to serve as class counsel.” No word yet on whether any <a href="https://youtu.be/DGuOUJ132bU?si=jXRkCGU-0IYlsANt" target="_blank">gavels were broken</a>.ALEX JONES SET TO LOSE IP RIGHTS AND SOCIAL MEDIA ACCOUNTSConspiracy peddler Alex Jones’s social media accounts and IP rights are <a href="https://www.msn.com/en-in/entertainment/oscars/blow-for-alex-jones-as-judge-rules-on-how-he-ll-pay-sandy-hook-victims/ar-AA1rc6WL?apiversion=v2&noservercache=1&domshim=1&renderwebcomponents=1&wcseo=1&batchservertelemetry=1&noservertelemetry=1" target="_blank">likely to be sold</a> to the highest bidder in an effort to pay down the nearly $1.5 billion in defamation judgments levied against him for repeatedly calling the tragic 2012 Sandy Hook school shooting a hoax. Jones’s assets are currently controlled by a court-appointed trustee after he <a href="https://www.reuters.com/world/us/alex-jones-files-bankruptcy-following-sandy-hook-verdict-court-filing-2022-12-02/" target="_blank">filed for bankruptcy</a> shortly following the judgment. Many of his tangible assets (including his Infowars studio) are already slated to be auctioned off, but it’s possible the IP assets and social media accounts will prove more valuable at auction. Jones and his legal team maintain that his personal social media accounts are not subject to liquidation and cannot be disentangled from his name, likeness, or image. As one of the <a href="https://youtu.be/_V1vacCrFNs?si=vV9bVHQq9VF1PH1a">least sympathetic defendants</a> in recent memory, Jones faces serious headwinds in his attempt to retain assets.TIKTOK SUFFERS ANOTHER COURT LOSSSocial media juggernaut TikTok’s bid for an en banc panel rehearing has been shot down by the Third Circuit. The action stems from an <a href="https://www.sociallyawareblog.com/topics/social-links-tinder-tiktok-and-the-copacabana" target="_blank">August decision</a> in which the court ruled TikTok and its parent company, ByteDance, <a href="https://cases.justia.com/federal/appellate-courts/ca3/22-3061/22-3061-2024-08-27.pdf?ts=1724792413" target="_blank">were not protected</a> under <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank">Section 230</a> of the Communications Decency Act in the tragic death of a 10-year-old child. TikTok argued that the panel’s August decision went against 30 years of precedent involving Section 230. The court disagreed, citing the U.S. Supreme Court’s <a href="https://www.supremecourt.gov/opinions/23pdf/22-277_d18f.pdf" target="_blank">Moody v. Netchoice LLC</a> decision in finding that the app’s algorithm qualifies as “expressive content.” The ruling revives a lawsuit by the deceased child’s mother against TikTok, which had been <a href="https://www2.ca3.uscourts.gov/opinarch/223061p.pdf" target="_blank">dismissed in January</a> by the U.S. District Court on Section 230 grounds. This ruling has wide implications for social media companies and is likely to be appealed to the U.S. Supreme Court. We’ll keep a close eye on this one.

The Federal Trade Commission has finalized a <a href="https://www.ftc.gov/business-guidance/blog/2024/08/well-pay-you-give-our-new-rule-good-review">new rule</a> aimed at curtailing false, misleading, and otherwise fraudulent reviews on online retail sites. Fake reviews are a <a href="https://pushpullagency.com/blog/a-deep-dive-into-amazon-consumer-review-statistics/">significant problem</a> for the big e-commerce platforms, given that a robust customer review system is crucial to modern e-commerce business models. In fact, <a href="https://pushpullagency.com/blog/a-deep-dive-into-amazon-consumer-review-statistics/">studies</a> have shown that a one-star rating increase in a product review can result in as much as a 26% increase in sales. Unsurprisingly, this has caused a proliferation of fake reviews and “<a href="https://www.theguardian.com/money/2023/apr/22/it-can-be-incredibly-profitable-the-secret-world-of-fake-online-reviews">review brokers</a>.” The new FTC rule is pretty comprehensive and worth a <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/r311003consumerreviewstestimonialsfinalrulefrn.pdf">full read</a>.New York trademark attorney Jeremy Green Eche hit the jackpot—and may have run afoul of <a href="http://www.internetlibrary.com/publications/anticybsquattSamson9-05_art.cfm">federal anti-cybersquatting law</a>—when he recently sold the HarrisWalz.com domain for $15,000. Eche <a href="https://www.cbsnews.com/news/harris-walz-domain-name-sold-for-1500/">purchased the domain in 2020</a> for $8.50. Though cybersquatting law is focused predominantly on trademark protection, it includes a provision barring any registration that “consists of the name of another living person” without their consent and “with the specific intent to profit” from its sale. This isn’t the first time Eche got lucky purchasing domains. In 2016, he <a href="https://www.usatoday.com/story/news/politics/onpolitics/2016/10/03/clinton-kaine-trump-website/91462708/">sold ClintonKaine.com to the Trump campaign,</a> also for $15,000. Eche denied being profit-driven, noting the relatively low price he put on both the Harris and Clinton domains. That the “relatively low” price happens to be slightly less than the cost of pursuing a cybersquatting case against him is probably just a coincidence, right?The U.S. Court of Appeals for the Ninth Circuit has ruled that employers may be subject to lawsuits based on their employees’ off-work social media posts. In <a href="https://casetext.com/case/okownowsky-v-garland">Okonowsky v. Garland</a>, the court unanimously ruled that an employee of a federal prison was sexually harassed on Instagram by a coworker in violation of Title VII of the 1964 Civil Rights Act. Following the ruling, plaintiff’s attorney Drew Pletcher said, “It appears to be the first holding in the Ninth Circuit to find that social media posts on an Instagram page could be considered workplace harassment under Title VII.” In the wake of this ruling, companies will need to consider whether their employee <a href="https://www.expresspros.com/Newsroom/America-Employed/88-Percent-of-Hiring-Managers-Would-Consider-Firing-Workers-for-Content-in-Personal-Social-Media-Posts.aspx">social media policies</a> adequately address abusive or harassing behavior both inside and outside the workplace, including on personal social media.Ye, the artist formerly known as Kanye West, <a href="https://usaherald.com/kanye-west-faces-1-5m-copyright-suit-over-unauthorized-photo-use/">has been hit</a> with a $1.5 million copyright infringement lawsuit by celebrity photography sites <a href="https://usa.backgrid.com/">BackGrid USA</a> and <a href="https://uk.backgrid.com/">BackGrid UK</a>. The paparazzi companies allege Ye posted 10 BackGrid-owned photos to his Instagram account without permission or compensation. While it may seem counterintuitive that celebrities cannot post photos of themselves on their own social media, this is actually a fairly common fact pattern, and one that we <a href="https://www.sociallyawareblog.com/topics/by-winning-motion-to-dismiss-supermodel-loses-chance-to-clarify-whether-she-can-lawfully-post-photos-of-herself-to-social-media">have covered previously</a>. For Ye, in any event, this will not be the first time he has <a href="https://edition.cnn.com/2014/03/17/showbiz/kanye-west-plea-deal/">tangled with paparazzi</a>.Embattled Georgia attorney Lin Wood has been <a href="https://lawandcrime.com/high-profile/pro-trump-defamation-attorney-lin-wood-must-pay-former-law-partners-4-5-million-after-defaming-them-as-criminal-extortionists-on-social-media/">ordered to pay</a> his former law partners $4.5 million after an <a href="https://www.documentcloud.org/documents/25049449-lin-wood-defamation-damages">Atlanta jury found him liable</a> for defaming them on social media. The feud began, like so many do, as an argument over money. The federal court’s initial <a href="https://storage.courtlistener.com/recap/gov.uscourts.gand.301086/gov.uscourts.gand.301086.90.0.pdf">ruling</a> contained some not-so-subtle jabs at Wood. Judge Michael L. Brown wrote, “During a five-week period the following year, Defendant repeatedly accused Plaintiffs of criminal extortion in a series of messages he posted on a social media platform called Telegram. Hundreds of thousands of people viewed Defendant’s messages.” Brown continued, adding: “Tellingly, Defendant does not even try to show his accusations were true. Indeed, he admits Plaintiffs did not commit ‘the crime of extortion.’ But he insists his extortion accusations were still non-false because they contained ‘loose, figurative, or hyperbolic language’ that no reasonable person could construe as a genuine accusation of criminal conduct. The Court disagrees.” Lin Wood’s Telegram page can be viewed <a href="https://t.me/s/linwoodspeakstruth?before=50839">here</a>.A paywall for Reddit? CEO Steve Huffman <a href="https://www.pcmag.com/news/reddit-ceo-teases-paywalled-subreddits">hinted</a> at subscription-only features for the wildly popular news aggregation and social forum site during an <a href="https://s203.q4cdn.com/380862485/files/doc_financials/2024/q2/Reddit-Q2-24-Earnings-Call_Transcript.pdf">earnings call</a> with investors. Unsurprisingly, Redditors had a snarky, and often hilarious, <a href="https://www.reddit.com/r/technology/comments/1emac0p/some_subreddits_could_be_paywalled_hints_reddit/">meltdown</a> on the site. Despite its popularity, Reddit has struggled to become profitable. It’s a top site for AI web scrapers, which prompted the company to <a href="https://www.pcmag.com/news/microsofts-bing-search-engine-gets-ai-overviews-as-reddit-blocks-it">block Microsoft’s Bing</a> search engine and enter into an <a href="https://www.theverge.com/2024/2/22/24080165/google-reddit-ai-training-data">agreement with Google</a> for site access for AI training. Of the data sharing and web scraping situation, Huffman said, “[Our] preference is to have relationships with everybody, but we need to be very considered of where Reddit data goes and what it’s used for.”

 Social Links: Recent Developments in the Law and Business of Social Media

Social Links: Recent Developments in the Law and Business of Social Media

The Federal Trade Commission has finalized a new rule aimed at curtailing false, misleading, and otherwise fraudulent reviews on online retail sites.

Social Links: Recent Developments in the Law and Business of Social Media

Section 230: 27 Years Old and Still in the SpotlightIn our fourth installment of our six-part series examining Section 230—the segment of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from content created by third parties—we’ll examine some of the more contemporary judicial, legislative, and executive responses to the Act. Read our <a href="/topics/part-1-section-230-27-years-old-and-still-in-the-spotlight" target="_self">first</a>, <a href="/topics/part-2-a-section-230-27-years-old-and-still-in-the-spotlight-" target="_self">second</a>, and <a href="/topics/part-3-section-230-27-years-old-and-still-in-the-spotlight" target="_self">third</a> installments of this series to bring you up to speed on the conversation so far.Section 230 in the age of social media and the rise of user-generated content (UGC)In tandem with the rise of social media and the proliferation of user-generated content, we have recently witnessed numerous Section 230 cases throughout various jurisdictions.In <a href="https://casetext.com/case/fed-agency-of-news-llc-v-facebook-inc-1" target="_blank">Federal Agency of News LLC v. Facebook, Inc</a>. (N.D. Cal. Jan. 13, 2020), a Northern California district court rejected the notion that political speech is not covered by Section 230 immunity. The case concerned Facebook’s removal of user content belonging to the <a href="https://federalnewsnetwork.com/" target="_blank">Federal Agency of News</a> (FAN), which was allegedly tied to Russian government agencies seeking to undermine U.S. institutions. Specifically, the court stated that “[i]mmunity under the Communications Decency Act does not contain a political speech exception . . . . No distinction is made between political speech and non-political speech.” The court ultimately dismissed FAN’s suit with prejudice.In another case involving Facebook—and a case of first impression for the Third Circuit—a district court ruled that Section 230 protects against state-law claims regarding rights of publicity. In <a href="https://casetext.com/case/hepp-v-facebook-inc" target="_blank">Hepp v. Facebook, Inc</a>. (E.D. Pa. June 5, 2020), Karen Hepp, a television news anchor for FOX, brought right of publicity claims against several social media platforms for unauthorized use of her image. The photo in question was taken by a security camera in an NYC convenience store and subsequently used in online ads for erectile dysfunction and dating websites. The court held that Hepp’s statutory and common law right of publicity claims, both based on state law, were covered by Section 230—and in doing so, the court rejected Hepp’s argument that those claims were within the exception described by Section 230(e)(2). That important exception states that intellectual property laws are unaffected by Section 230, but the court aligned itself with Ninth Circuit precedent in holding that only federal intellectual property claims qualify for the exception. In the court’s view, extending the exception to state law intellectual property claims “would fatally undermine the broad grant of immunity provided by the CDA.” As we <a href="/2021/12/21/facebook-rebrands-as-meta-disables-facial-recognition-capabilities/" target="_self">reported previously</a>, <a href="https://today.westlaw.com/Document/Iaf5326271d1d11ecbea4f0dc9fb69570/View/FullText.html?contextData=(sc.Default)&transitionType=Default&firstPage=true" target="_blank">the Third Circuit of the United States Court of Appeals recently dismissed the case</a>, citing that each of these companies were protected and had immunity under Section 230 of the Communications Decency Act 0f 1996 (CDA). Read the full opinion of <a href="https://law.justia.com/cases/federal/appellate-courts/ca3/20-2725/20-2725-2021-09-23.html" target="_blank">Hepp v. Facebook, No. 20-2725 (3d Cir. 2021).</a>Account terminations in the age of Section 230: Distributor vs. publisher role continues to raise issuesIn <a href="https://casetext.com/case/domen-v-vimeo-inc" target="_blank">Domen v. Vimeo, Inc</a>., (2d Cir. March 11, 2021), Domen, a Christian pastor, published 89 videos on Vimeo promoting “conversion therapy” that were later flagged by Vimeo as violating its policy against promotion of “Sexual Orientation Change Efforts (SOCE).” After a warning period, <a href="https://blog.ericgoldman.org/archives/2021/03/important-second-circuit-opinion-says-section-230c2a-protects-online-account-terminations-domen-v-vimeo.htm" target="_blank">Vimeo terminated Domen’s account</a>. Domen sued Vimeo for several claims, including on anti-discrimination grounds, arguing that Vimeo had “restricted and censored [his] videos because [they] were based on a viewpoint regarding sexual orientation and religion with which Vimeo disagrees.” The court dismissed Domen’s suit, on Section 230 and other grounds, finding that:<ul><li>Vimeo was acting as a publisher and therefore qualified for Section 230 immunity: “Plaintiffs are seeking to hold Vimeo liable for removing Plaintiffs’ own content . . . . Vimeo plainly was acting as a ‘publisher’ when it deleted (or, in other words, withdrew) Plaintiffs’ content on the Vimeo website”;</li><li>Domen had no argument that Vimeo was applying its policy in a discriminatory manner: “the purpose of Section 230 was to insulate interactive computer services from liability for removing some content, but not other content . . . . There simply are no substantive allegations to support the notion that Vimeo somehow was targeting Domen because he is a ‘former homosexual,’ as Plaintiffs posit”; and</li><li>The anti-discrimination claims independently failed because Domen didn’t allege that Vimeo had the requisite discriminatory intent.</li></ul>Domen filed for appeal and, in March 2021, the 2nd Circuit affirmed the district court’s ruling, noting that <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank">subsection (c)(2) of Section 230</a> is a broad provision that forecloses civil liability for providers that restrict access to content they consider objectionable. The court also held that Section 230 does not require the restriction to take any particular form, meaning that Vimeo’s removal of Domen’s account after providing a warning was acceptable.Section 230 in the age of the #MeToo movement: Allegations, backlash, and immunity clauses continue to challenge “third party content”A New York district court recently considered the application of Section 230 to non-traditional online publishers, in <a href="https://casetext.com/case/elliott-v-donegan" target="_blank">Elliott v. Donegan</a>, (E.D.N.Y. June 30, 2020). The defendant, Moira Donegan, had started an electronic list of men in the media business who had allegedly committed some form of sexual violence. She titled her list “Sh**ty Media Men” and stored it on a cloud-based, publicly accessible spreadsheet. The spreadsheet went viral, unleashing a swift flurry of allegations with some 70 named men implicated in the spreadsheet. Major media outlets were poised to publish related stories. Among the men named was the plaintiff, Stephen Elliott, who claimed that the allegations about him on the list were false, and sued Donegan and a number of Jane Does for defamation.Donegan claimed that third parties had posted the statements about Elliot, and that she was therefore immune under Section 230. The court first examined whether Donegan was “a provider or user of an interactive computer service,” which is a threshold requirement for the Section 230 safe harbor. Likening the spreadsheet to a message board that allows individuals to post comments, the court held that Donegan did qualify as an interactive computer service provider.But the court was unable to determine, at least from the face of the complaint, whether the spreadsheet and its material were “third party content.” According to the plaintiff’s allegations, the defendant herself had fabricated and entered the spreadsheet item about him. If those allegations were true, then Section 230 would not apply. Based on this uncertainty, the court refused to dismiss, holding that Section 230 does not warrant the dismissal of a defamation claim where the plaintiff’s complaint did not “foreclose the possibility that defendant created or developed the allegedly unlawful content.”In part five of our series, we’ll continue to examine the criticism from both sides of the political aisle, as well as calls to reform or even repeal Section 230.

In our fourth installment of our six-part series examining Section 230—the segment of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from content created by third parties—we’ll examine some of the more contemporary judicial, legislative, and executive responses to the Act. Read our first, second, and third installments of this series to bring you up to speed on the conversation so far.

Part 4 – Section 230: 27 Years Old and Still in the Spotlight

In the prior two installments of our six-part series examining Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from the publication and filtering of content created by a third party, we looked at the <a href="https://www.sociallyawareblog.com/topics/part-1-section-230-27-years-old-and-still-in-the-spotlight">origins of Section 230</a> and <a href="https://www.sociallyawareblog.com/topics/part-2-a-section-230-27-years-old-and-still-in-the-spotlight-">the early cases</a> that established the broad scope of the safe harbor.In this third installment, we examine a trend in the cases that started in about 2015, in which the broad interpretation of Section 230 that characterized the early cases started to meet with some resistance and plaintiffs found ways to plead around the safe harbor. If you missed our prior installments, we suggest that you go back and read those before moving on to this third installment (here are <a href="/topics/part-1-section-230-27-years-old-and-still-in-the-spotlight" target="_self">Part 1</a>, <a href="/topics/part-2-a-section-230-27-years-old-and-still-in-the-spotlight-" target="_self">Part 2(A)</a>, and <a href="/topics/part-2-b-section-230-27-years-old-and-still-in-the-spotlight" target="_self">Part 2(B)</a>).Before we discuss the cases referenced above, recall that a defendant receives immunity under <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank">Section 230(c)(1)</a> only if:<ol><li>it is a provider or user of an interactive computer service (“Prong One”);</li><li>whom the plaintiff seeks to treat as a publisher or speaker of information (“Prong Two”); and</li><li>that information was provided by another information content provider (“Prong Three”).</li></ol>See <a href="https://casetext.com/case/barnes-v-yahoo-inc-3" target="_blank">Barnes v. Yahoo! (9th Cir. 2009)</a> for this three-prong articulation.This opens three potential lines of attack for a plaintiff seeking to overcome a defendant’s Section 230 defense:<ul><li>Attack Prong One. Defendant’s liability is not related to being a provider or user of an interactive computer service.</li><li>Attack Prong Two. Defendant’s liability is not based on being a publisher or speaker of information.</li><li>Attack Prong Three. The information at issue was not provided by another information content provider.</li></ul>We will now look at a series of cases in which plaintiffs successfully attacked Prong One, Prong Two, or Prong Three.Attack Prong One. Defendant’s liability is not related to being a provider or user of an interactive computer service. Prong One is not usually at issue in cases where a platform (e.g., a social media site) is the defendant. Platforms are almost always deemed to be providers of interactive computer services. But courts sometimes struggle with immunity for users (as opposed to providers) of interactive computer services. This typically arises in cases where an individual forwards or shares defamatory content originally created by someone else. As we saw in cases such as <a href="https://www.eff.org/files/batzel-v-smith.pdf" target="_blank">Batzel v. Smith</a> and <a href="https://www.eff.org/files/barrett-v-rosenthal.pdf" target="_blank">Barrett v. Rosenthal</a>, discussed in <a href="/topics/part-2-a-section-230-27-years-old-and-still-in-the-spotlight-" target="_self">Part 2</a>, courts have often extended the Section 230 immunity to users in accordance with the plain language of the statute. But not always. And sometimes, when they rejected the applicability of Section 230 in these situations, courts did so either by ignoring that users are also protected under Section 230 or by finding that the defendant was not acting as a user with respect to the objectionable conduct.<a href="https://casetext.com/case/maxfield-v-maxfield-7" target="_blank">Maxfield v. Maxfield</a>, a Connecticut case from 2015, is an example of this. 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.Attack Prong Two. Defendant’s liability is not based on being a publisher or speaker of information.Attacking Prong 2 by arguing that the defendant’s liability is not based on acting as a publisher or speaker has often met with success. As we discussed in <a href="/topics/part-2-b-section-230-27-years-old-and-still-in-the-spotlight" target="_self">Part 2</a>, <a href="https://www.eff.org/files/barnes-v-yahoo.pdf" target="_blank">Barnes v. Yahoo!</a>, was an early example of this. In that case from 2009, the Ninth Circuit held that Section 230 did not immunize Yahoo from the plaintiff’s promissory estoppel claim because the claim was not based Yahoo’s activities as a publisher or speaker but rather from Yahoo’s promise to remove the third-party content at issue. Such cases were relatively rare, however, for about the first decade of Section 230’s existence.That started to change with cases such as <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/31/12-56638.pdf" target="_blank">Doe v. Internet Brands</a>, a Ninth Circuit case from 2016 in which 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 similar argument worked—to an extent—in <a href="https://casetext.com/case/darnaa-llc-v-google-inc-1" target="_blank">Darnaa v. Google</a>, a Northern District of California case from 2016 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 yet another case from 2016, the Northern District of California court in <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2324&context=historical" target="_blank">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. But the court held that the ordinance did not treat Airbnb as the publisher or speaker of Airbnb’s rental listings because the ordinance 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.Attack Prong Three. The information at issue was not provided by another information content provider.As we noted in <a href="/topics/part-2-b-section-230-27-years-old-and-still-in-the-spotlight" target="_self">Part 2</a> in connection with the <a href="https://caselaw.findlaw.com/us-9th-circuit/1466388.html" target="_blank">Roommates.com</a> case, Section 230(c)(1) immunity only applies if the relevant information was “provided by another information content provider.” If the defendant itself created the relevant content, in whole or in part, then it cannot avail itself of the safe harbor. In the time period we are looking at here, plaintiffs increasingly met with success in attacking this Prong Three element of Section 230.In <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2161&context=historical" target="_blank">Diamond Ranch Academy v. Filer</a>, a 2016 district court case from Utah, the plaintiff, who ran a residential youth treatment facility, sued the defendant, who ran a website where those who had attended plaintiff’s facility could share their experiences, for defamation. The defendant asserted a Section 230 defense, arguing that she had merely summarized “many of the core complaints about [the plaintiff’s facility] in a format that [was] more digestible than reading through many separate survivors’ testimonies,” and, in doing so, was exercising her prerogative as a publisher (after all, publishers often edit materials before publishing them). The court disagreed. 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 also noted that some of the third-party statements did “not retain their original form.” With respect to the summaries of third-party statements, the court held that the plaintiff was not entitled to immunity under Section 230 because she was the author.In the 2016 case <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">Huon v. Denton</a>, the Seventh Circuit Court 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 court held that the plaintiff’s claim survived the defendant’s motion to dismiss on Section 230 grounds because the plaintiff had plausibly alleged that Gawker employees anonymously authored comments to increase traffic to the website (even though there was no allegation that Gawker employees had written the specific allegedly defamatory comment at issue).In <a href="https://casetext.com/case/samsel-v-desoto-cnty-sch-dist" target="_blank">Samsel v. DeSoto County School District</a>, a 2017 case from the Northern District of Mississippi, the superintendent of a school district forwarded to 48 principals in his district an email that he had received from the chair of the school board. The chair of the school board had received the original email from a math teacher. The email from the math teacher contained allegedly defamatory statements about the plaintiff, a football coach. When forwarding the email, the superintendent included a cover note asking the recipients to “[p]lease share this email with your staff from the Chairman of our School Board. As Superintendent I agree with [the chair of the school board] 100 percent! Tell your staff they have permission to respond at will.” The plaintiff sued the superintendent for defamation and the superintendent attempted to invoke Section 230(c)(1).The district court acknowledged that persuasive authority from other courts suggested that the default rule was that “one who forwards an email written by another which contains defamatory statements enjoys immunity under [Section 230],” but it distinguished the current case on the grounds that the superintendent added defamatory content (i.e., the cover note). According to the court, the superintendent’s position gave him access to information that could confirm or deny the truth of the math teacher’s statements, so his expression of “100 percent” support of the chair’s email “essentially endorsed and confirmed the veracity of the accusations, in the eyes of the reader.” Therefore, the court held, “a jury could reasonably find that [the superintendent] . . . essentially became a publisher of defamatory material himself, within the meaning of [Section 230].”***Please look out for installment number four of this six-part series, where we continue to trace the history of Section 230.

In the prior two installments of our six-part series examining Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from the publication and filtering of content created by a third party, we looked at the origins of Section 230 and the early cases that established the broad scope of the safe harbor.

Part 3 – Section 230: 27 Years Old and Still in the Spotlight

In <a href="https://www.courtlistener.com/recap/gov.uscourts.nysd.519884/gov.uscourts.nysd.519884.29.0.pdf" target="_blank" rel="noopener noreferrer">Ganske v. Mensch</a>, a defamation suit stemming from a “battle by Tweet,” a federal district court in New York held that the allegedly defamatory statements in the defendant’s Tweet were nonactionable statements of opinion and dismissed the case. The case illustrates that courts in such “<a href="https://www.urbandictionary.com/define.php?term=twibel" target="_blank" rel="noopener noreferrer">Twibel</a>” (Twitter + libel) cases may view Tweets and similar statements on social media as informal and “freewheeling” in nature, which reasonable readers would understand to be expressions of opinion rather than statements of fact.Charles Ganske, a former Associated Press (AP) journalist, sued Louise Mensch, a blogger and former member of the British Parliament, for defamation and tortious interference. Ganske argued that Mensch defamed him and interfered with his employment at AP based on a single Tweet that she posted on July 27, 2018, by which she “interjected herself” into a Twitter thread between Ganske and another Twitter user with the handle @Conspirator0.Mensch’s Tweet from her @patribotics Twitter account stated: “To this xenophobic tweet of yours, sir, I fear we must tell @APCentral ‘citation needed’. You clearly personally spread Russian bots on your own site; and @Conspirator0 work on it has sent you into a frenzy of tweeting and trying to discredit him.”Ganske claimed that Mensch’s Tweet contained false and defamatory statements about him because neither he nor his Tweets were xenophonic and he never spread Russian bots on any website. He also alleged that Mensch deliberately tagged his employer, AP, and published the Tweet to @APCentral in order to interfere with his employment. Ganske’s employment with AP was later terminated, and Ganske argued that this was the result of Mensch’s Tweet.However, the court sided with defendant Mensch, holding that the statements in her Tweet were expressions of opinions rather than defamatory statements of fact. The court explained that statements of fact may be defamatory, while expressions of opinion cannot be defamatory and are entitled to “absolute protection under the New York Constitution.”In ruling that the first statement in Mensch’s Tweet (that Ganske’s Tweet was xenophobic) was a nonactionable expression of opinion, the court focused on the nature of Twitter and other social media platforms. The court cited a number of prior cases to support its determination that “courts have consistently protected statements made in online forums as statements of opinion rather than fact.”The court also noted that social media communications such as Tweets are generally “informal” and “unedited,” which leads readers to give less credence to such remarks even when they are allegedly defamatory. Additionally, the court concluded that the statement that Ganske’s Tweet was xenophobic is incapable of being proven true or false, and that such claims are part of the exaggerated, freewheeling, anything-goes writing style characteristic of online forums. The court came to similar conclusions regarding the other allegedly defamatory statements in Ganske’s Tweet, emphasizing that the context alone—i.e., a social media platform such as Twitter—supported the conclusion that these statements were nonactionable opinions.Based in part on this conclusion, the court granted Mensch’s motion to dismiss Ganske’s defamation claim. As the court noted, “[i]f the Internet is akin to the Wild West . . . Twitter is, perhaps, the shooting gallery, where verbal gunslingers engage in prolonged hyperbolic crossfire.” In this virtual Wild West where users regularly engage in Twibel warfare, plaintiffs may find themselves on the defensive when trying to make out a defamation claim based on Tweets and other social media posts.

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S.D.N.Y. Dismisses Defamation Case Arising Out of “Battle by Tweet”

S.D.N.Y. Dismisses Defamation Case Arising Out of “Battle by Tweet”

In Ganske v. Mensch, a defamation suit stemming from a “battle by Tweet,” a federal district court in New York held that the allegedly defamatory statements in 

In <a href="https://www.govinfo.gov/content/pkg/USCOURTS-nyed-1_18-cv-05680/pdf/USCOURTS-nyed-1_18-cv-05680-0.pdf" target="_blank" rel="noopener noreferrer">Elliott v. Donegan</a>, a federal district court in New York held that <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">Section 230</a> of the Communications Decency Act does not warrant the dismissal of a defamation claim where the plaintiff’s complaint did not “foreclose[] the possibility that Defendant created or developed the allegedly unlawful content.” The content at issue was a “publicly accessible, shared Google spreadsheet” titled “Shitty Media Men” that the defendant Moira Donegan had started containing a list of men in the media business who had allegedly committed some form of sexual violence.Donegan, a media professional, circulated the list via email and other electronic means to women in her industry in an effort to share information about “people to avoid.” The list included the headings “NAME, AFFILIATION, ALLEGED MISCONDUCT, and NOTES.” It also included a disclaimer at the top of the spreadsheet stating, “This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt.”After Donegan first published the list, “Shitty Media Men” assumed a life of its own. The spreadsheet went viral and a flurry of allegations were swiftly submitted. Soon, 70 men were named and major media outlets were preparing to publish related stories. As a result, the defendant took the spreadsheet offline about 12 hours after she posted it.Among the men named on “Shitty Media Men” was the plaintiff Stephen Elliottt, whom the court describes as “an author and content creator.” Someone added Elliottt’s name to the list, writing under the “ALLEGED MISCONDUCT” heading “rape accusations, sexual harassment.” In addition, Elliott’s entry was outlined in red, indicating that he was “accused of physical sexual violence by multiple women.” Subsequently, other changes were made to Elliottt’s entry on the list: additional allegations against him were added and his entry was moved up from row 13 to row 12.Elliott asserted that the allegations about him on the list were false and he sued Donegan and a number of Jane Does for defamation.Donegan moved to dismiss the case pursuant to <a href="https://www.law.cornell.edu/rules/frcp/rule_12#:~:text=Rule%2012(b)(6)%2C%20permitting%20a%20motion%20to,state%20a%20cause%20of%20action." target="_blank" rel="noopener noreferrer">Rule 12(b)(6) of the Federal Rules of Civil Procedure</a> based on Section 230 of the Communications Decency Act, a federal statute that, as regular readers of Socially Aware will <a href="https://www.sociallyawareblog.com/2019/07/17/federal-circuit-holds-that-section-230-locks-out-locksmiths/">already know</a>, provides broad immunity to online intermediaries from liability for content provided by others. The court first examined whether Donegan was “a provider or user of an interactive computer service,” which is a threshold requirement for the Section 230 safe harbor. Likening the spreadsheet to a message board that allows individuals to post comments and citing <a href="https://www.courtlistener.com/opinion/4259325/ftc-v-leadclick-media-llc/" target="_blank" rel="noopener noreferrer">Fed. Trade Comm’n v. LeadClick Media, LLC</a>, the court held that Donegan did qualify as an interactive computer service provider.As the court noted, however, an interactive computer service provider such as Donegan is only eligible for Section 230 immunity with respect to “information provided by another information content provider.” In other words, if an interactive service provider such as Donegan also serves as an ‘information content provider’ of the content which gives rise to the underlying claim,” then Section 230 immunity does not attach. This is the same principle originally established in the seminal Section 230 case <a href="https://caselaw.findlaw.com/us-9th-circuit/1592538.html" target="_blank" rel="noopener noreferrer">Fair Housing Council of San Fernando Valley v. Roommates.com, LLC</a>, where the Ninth Circuit held that an online intermediary cannot claim Section 230 immunity for unlawful content if the intermediary itself created or contributed to the content.With this principle in mind, the Donegan court proceeded to examine Elliott’s complaint to determine whether, on the face of the complaint itself, it was clear that Donegan had not herself created or developed the allegedly defamatory spreadsheet entries concerning the plaintiff. First, the court noted that Elliott had alleged “that Defendant fabricated the allegations against him and inputted them in the List.” With respect to any defamatory entries that Donegan herself may have posted to the list, the court notes that “[t]he parties—and the Court—agree that CDA immunity does not apply if that is proven true.”The court then goes on to examine the plaintiff’s allegations that Donegan “published the allegedly defamatory accusations in the List as relayed to her by another person.” Donegan argued that, with respect to publishing third-party accusations, “she is shielded by §230 because she did not materially contribute to their allegedly defamatory meaning, and did not change the meaning and purpose of the content.” The court, however, noted that “this argument assumes a key fact not known to the Court at this juncture—whether Plaintiff materially contributed to the allegedly defamatory meaning—which is the very fact on which CDA immunity turns.” In other words, at the pleading stage, the court simply did not have the necessary facts to determine whether Donegan did or did not enjoy §230 immunity with respect to the accusations provided by others.The court also raised an interesting issue based on the Ninth Circuit’s analysis in Batzel v. Smith. Specifically, the court noted, citing Batzel, that “if Defendant inputted information into the List that was not provided to Defendant for use on the Internet, she would not qualify for CDA immunity.” For example, under the Batzel principle, Donegan would not be eligible for the Section 230 safe harbor if she received a “snail mail” letter from a third party containing accusations against the plaintiff and then posted those accusations on the online list. Given the preliminary stage of the case, the court was not able to determine whether any third parties who provided information to Donegan did or did not intend that information to be posted online.Donegan fared somewhat better with respect to Elliott’s argument that Donegan was not entitled to Section 230 immunity because she had specifically encouraged posting of unlawful content. Elliott asserted that Donegan encouraged defamatory content through the disclaimer at the top of the spreadsheet, which described the list as “a collection of allegations and rumors” that should be taken “with a grain of salt.” According to Elliott, “[t]his statement alone could reasonably have been interpreted by the List’s recipients as encouraging them to post their own ‘rumors’.” The court was not convinced, however, and noted “[t]o the extent that Plaintiff relies on the List’s design and headers to argue that Defendant specifically encouraged unlawful content, that reliance would be misplaced.”The court analogized the spreadsheet’s format to the website design in Roommates.com. In that case, the defendant Roommates.com operated a website that matched individuals seeking roommates. A portion of the website presented users with questions regarding their sex, sexual orientation and familial status, and their roommate preferences based on these same criteria. Users were required to provide answers to these questions using predetermined responses presented through dropdown menus. Because the dropdown menus specifically required users to provide responses regarding their roommate preferences “based on criteria that appear to be prohibited by the [Fair Housing Act],” the Ninth Circuit held that Roommates.com could not claim Section 230 immunity with respect to the allegedly discriminatory activity.The Roommates.com court made a different determination, however, with respect to users’ input in the website’s blank text box, which asked users to “tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.” Some users did enter discriminatory comments in the text box, but the Ninth Circuit held that Roommates.com was entitled to Section 230 immunity for such comments because Roommates.com did not  “provide any specific guidance” regarding users’ entries in the comment box, and it did not “urge subscribers to input discriminatory preferences.” The Elliottt court held that the format of Donegan’s spreadsheet was more similar to the Roommates.com comment box than to the Roommates.com dropdown menus:  “[a]s with Roommates’ comment box, the possibility that someone may have entered defamatory content onto the List does not mean that Defendant specifically encouraged unlawful content.”The court also held, however, that the “full contours of Defendant’s conduct during the approximately 12 hour period during which her Google spreadsheet was online are unknown at this juncture. Accordingly, Plaintiff is entitled to discovery on whether Defendant specifically encouraged the posting of unlawful content on the List.”Finally, the court rejected Elliott’s argument that Donegan’s augmentation of third-party contributions to the list undermined the Section 230 safe harbor. Donegan had highlighted certain spreadsheet entries, including Elliott’s, in red to signify accusations of “physical sexual violence by multiple women” and added to such entries the annotation “multiple women allege misconduct.” Elliott argued that, based on such augmentation of the entries, Donegan had “materially contributed to the allegedly defamatory statement” about him.The court rejected this argument, however, and cited LeadClick for the proposition that “the key question in determining whether a defendant is liable for developing content is not whether she ‘augment[ed] the content generally,’ but instead whether she ‘materially contribut[ed] to its alleged unlawfulness’.” Aggregation and classification of third-party content such as Donegan’s augmentation of the spreadsheet entries, the court held, constitutes “quintessential neutral assistance,” citing <a href="https://scholar.google.com/scholar_case?case=18029531304035617061&hl=en&as_sdt=6&as_vis=1&oi=scholarr" target="_blank" rel="noopener noreferrer">Herrick v. Grindr</a>, a case we previously <a href="https://www.sociallyawareblog.com/2019/04/30/appeals-court-upholds-section-230-protections-in-case-against-grindr/" target="_blank" rel="noopener noreferrer">covered on Socially Aware</a>. Such neutral assistance does not transform an interactive computer service provider into a “developer of the underlying misinformation” for Section 230 purposes.Given the unresolved facts at the pleading stage regarding whether Donegan is or is not entitled to Section 230 immunity, the court denied her motion to dismiss. But, the court noted, “CDA immunity may prove to be a gating issue in this case and the Court wishes to avoid an unnecessary expenditure of judicial resources.” Accordingly, the court directed the parties to proceed with “narrowly tailored discovery to address factual issues related to Defendant’s CDA immunity defense,” and invited the parties to move for summary judgment once such discovery is completed. We will be watching this case for further developments.

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EDNY Refuses to Dismiss on § 230 Grounds in “Shitty Media Men” Defamation Case

EDNY Refuses to Dismiss on § 230 Grounds in “Shitty Media Men” Defamation Case

In Elliott v. Donegan, a federal district court in New York held that Section 230 of the Communications Decency Act does not warrant the dismissal of a defamati

Expressing concern about the spread of disinformation related to COVID-19, Federal Trade Commissioner <a href="https://www.mediapost.com/publications/article/353769/ftcs-chopra-says-congress-may-need-to-revisit-tec.html?utm_source=newsletter&utm_medium=email&utm_content=readnow&utm_campaign=119133&hashid=NDVHOmKrFJOy4V9Oy6E3fBNv4VU" target="_blank" rel="noopener noreferrer">Rohit Chopra said</a> Congress may need “to reassess the special privileges afforded to tech platforms, especially given their vast power to curate and present content in ways that may manipulate users.” His words implicate <a href="https://www.sociallyawareblog.com/2019/07/17/federal-circuit-holds-that-section-230-locks-out-locksmiths/" target="_blank" rel="noopener noreferrer">one of our favorite topics</a> here at Socially Aware: <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">Section 230 of the Communications Decency Act</a>, which generally protects websites from liability for content posted by third parties.Florida Governor Ron DeSantis signed into law legislation requiring Florida state agencies, local governments and firms that contract with them to use the E-Verify system, an online database operated by the U.S. Department of Homeland Security that can confirm a person’s eligibility to work in the United States.In the wake of a series of tweets insulting the family of Turkey’s President, Recep Tayyip Erdogan, the president <a href="https://apnews.com/791bf321269ad1ce289d14304368ba2a" target="_blank" rel="noopener noreferrer">submitted legislation to parliament</a> that would require social media companies with more than 1 million daily users in Turkey to appoint someone responsible for, among other things, responding to the company’s alleged violations of privacy laws.China’s recently imposed security law—which outlaws subversion, secession, terrorism and colluding with foreign forces—had many Hong Kongers “<a href="https://economictimes.indiatimes.com/news/international/world-news/hong-kongers-scrub-social-media-history-in-face-of-security-law/articleshow/76777320.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst" target="_blank" rel="noopener noreferrer">scrubbing their social media accounts</a>.”Pop-up brokers tried to capitalize on the scarcity of personal protective equipment—especially masks—meant to safeguard people against COVID-19 by connecting with suppliers on LinkedIn. Learn <a href="https://www.wired.com/story/linkedin-coronavirus-medical-equipment-ppe-shortage/" target="_blank" rel="noopener noreferrer">what makes that social media platform convenient for sellers and scammers interested in sourcing goods</a>.In a suit that Socially Aware <a href="https://www.sociallyawareblog.com/2019/11/12/the-joys-and-dangers-of-tweeting-a-cda-immunity-update/" target="_blank" rel="noopener noreferrer">covered last year</a>, a federal district court in New York was able to avoid addressing whether a defamation claim against television show host Joy Reid should be dismissed based on the safe harbor in Section 230 of the Communications Decency Act. The reason: The plaintiff in the suit <a href="https://www.sociallyawareblog.com/2019/11/12/the-joys-and-dangers-of-tweeting-a-cda-immunity-update/" target="_blank" rel="noopener noreferrer">failed to prove actual malice</a>, which is required to succeed on a defamation claim against a public figure. On remand, <a href="https://www.courtlistener.com/opinion/4767998/la-liberte-v-reid/" target="_blank" rel="noopener noreferrer">the U.S. Court of Appeals in July 2020</a> once again passed on the opportunity to answer the re-tweet question, holding, “[The plaintiff’s] initial complaint included Reid’s retweet of the Vargas tweet; but since [the plaintiff] later dropped that claim, we need not decide whether a retweet qualifies for Section 230 immunity. Nor are we called to decide whether Section 230 protects a social media user who copies verbatim (and without attribution) another user’s post, a question that may be complicated by issues as to malice and status as a public figure.This opinion piece argues that, because facial recognition technology can be inaccurate and biased, and “privacy-encroaching facial recognition companies rely on social media platforms to scrape and collect user facial data,” <a href="https://venturebeat.com/2020/07/05/social-media-must-add-a-do-not-track-option-for-images-of-our-faces/" target="_blank" rel="noopener noreferrer">social media platforms should add a “do-not-track” option</a> for users’ faces.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

FTC questions protections afforded tech platforms; LinkedIn was platform of choice for sellers of COVID-19 PPE; Appeals court passes on “retweet” propriety question