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.

Social

Search

sociallyaware-abajournalweb100-1

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.

rubin_aaron_blog_150x150.png

rubin_aaron_common_640x280.jpg

rubin_aaron_heroretina_2700x1160.jpg

rubin_aaron_mobileretina_750x1040.jpg

rubin_aaron_social_600x600.jpg

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.

gallick_lawrence_blog_150x150.png

gallick_lawrence_common_640x280.jpg

gallick_lawrence_heroretina_2700x1160.jpg

gallick_lawrence_mobileretina_750x1040.jpg

gallick_lawrence_social_600x600.jpg

Of Counsel

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.

ramirez_anthony_blog_150x150.png

ramirez_anthony_common_640x280.jpg

ramirez_anthony_heroretina_2700x1160.jpg

ramirez_anthony_mobileretina_750x1040.jpg

ramirez_anthony_social_600x600.jpg

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

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

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.

Welcome to Socially Aware

240920-socially-aware-header.jpg

Welcome to Socially Aware

240920-socially-aware-header

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.

News and Announcements

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Mofo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

Government Contracts Insights

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

MoFo’s Socially Aware blog provides timely updates and analysis of the many complex and cutting-edge legal and business issues arising out of social media.

Socially Aware

  Linkedin

MoFo LinkedIN

Socially Aware Blog - RSS

Stay Connected

Never miss a post from Socially Aware. Enter your email below to stay up-to-date.

Subscribe

The Law and Business of Social Media

Morrison Foerster - Footer

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

Blogs -  Home Button

Home

Blog - Topics

Web Scraping

Advertising

Antitrust

Arbitration

Artificial Intelligence

Asia

Autonomous Vehicles

Bankruptcy

Big Data

Blockchain

Class Actions

Cloud Computing

Compliance

Contracts

COPPA

Copyright

Crowdsourcing

Cyberbullying

Cybersecurity

Data Security

Defamation

Digital Content

Disappearing Content

Discovery

DMCA

E-Commerce

E-Discovery

E-Personation

Electronic Contracts

Employment Law

Endorsement Guides

Ephemeral Messaging

Ethics

European Union

Event

Fair Use

FDA Regulations

Financial Institutions

First Amendment

Fraud

Free Speech

GDPR

Hacking

Influencer Marketing

Infographic

Internet of Things

Investment Management Law

JOBS Act

Labor Law

Litigation

Live streaming

Marketing

Mobile

Online Contracts

Online Endorsements

Online Promotions

Online Reviews

Patent

Privacy

Product Liability

Protected Speech

Right of Publicity

Right To Be Forgotten

Section 230 Safe Harbor

Securities Law

Social Media Policy

Statistics

Status Updates

Stored Communications Act

Supreme Court

Terms of Use

Trademark

UK High Court

User-Generated Content

Wearable Computers

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

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 | Socially Aware

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.