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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In what is being described as “<a href="https://www.reuters.com/article/us-new-york-socialmedia-settlement/new-york-settles-with-sellers-of-fake-online-followers-likes-idUSKCN1PP01O" target="_blank" rel="noopener">the first settlement to deem such sales illegally deceptive</a>,” New York Attorney General Letitia James has entered into a settlement with a company that had been selling fake followers, likes and views on several social media platforms. <a href="https://www.reuters.com/article/us-new-york-socialmedia-settlement/new-york-settles-with-sellers-of-fake-online-followers-likes-idUSKCN1PP01O" target="_blank" rel="noopener">Read how much revenue the sales were generating</a> for the defendant companies.Twitter is requiring parties interested in posting ads related to the European Parliament elections to verify their identities and confirm that they are based in the EU.The online pinboard Pinterest has confidentially filed for an initial public offering, the Wall Street Journal reports. <a href="http://fortune.com/2019/02/21/pinterest-filed-confidentially-ipo-june-report/" target="_blank" rel="noopener">Find out the valuation the social media company is reportedly seeking</a>, and how the company monetizes its platform.A state appeals court in New York widened the scope of the discovery allowable in a personal injury case to include <a href="https://www.law.com/newyorklawjournal/2019/01/24/personal-injury-plaintiffs-devices-social-media-accounts-should-be-made-available-to-defense-court-rules/?slreturn=20190122103558l" target="_blank" rel="noopener">these types of posts</a> on social media platforms.Washington state senators have proposed a bill that would make “social media extortion”—defined as attempting to acquire property from someone in return for removing negative social media communications—a class C felony, which is punishable by a prison sentence of at least five years or a maximum fine up to $10,000. <a href="http://www.whidbeynewstimes.com/news/social-media-extortion-could-be-a-new-crime-in-washington-state/" target="_blank" rel="noopener">Read about the restaurant owner’s experience</a> that inspired the bill.The app maker Niantic Inc. may have reached a settlement with homeowners who brought a nationwide class action suit based on trespass and nuisance allegedly caused by the Pokémon Go craze that Socially Aware <a href="https://www.sociallyawareblog.com/2016/07/21/pokemon/" target="_blank" rel="noopener">reported on in the summer of 2016</a>. Find out <a href="https://www.theverge.com/2019/2/15/18226604/niantic-pokemon-go-lawsuit-changes-settlement-private-property-pokestop-gymT" target="_blank" rel="noopener">what the settlement would require of Niantic to do</a>—and possibly pay.California has made it <a href="https://www.forbes.com/sites/lizazimmerman/2019/02/19/rules-for-legal-wine-focused-social-media-posts-are-changing/#b71c2e86c4ebl-wine-focused-social-media-posts-are-changing/" target="_blank" rel="noopener">easier for wineries to promote events</a> over social media without running afoul of state law.The up-and-coming generation of “unicorn” start-ups—new companies on track to quickly reach $1 billion in value—is looking very different from the first generation, which included now-household names like Uber and Airbnb. Find out how in <a href="https://www.nytimes.com/2019/02/10/technology/new-wave-unicorn-start-ups.html" target="_blank" rel="noopener">this New York Times article</a>.A <a href="https://www.reuters.com/article/us-valentines-day-cows/tinder-for-cows-matches-livestockin-the-mood-for-love-idUSKCN1Q226F" target="_blank" rel="noopener">new app called “Tudder”</a> is basically just like the dating app Tinder, but for cows. We’re serious.

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

Aaron Rubin

Social Links: Settlement declares fake “likes” illegal; Pinterest’s impending IPO; a bill to criminalize “social media extortion”

In what is being described as “the first settlement to deem such sales illegally deceptive,” New York Attorney General Letitia James has entered into a settleme

Social Links: Settlement declares fake “likes” illegal; Pinterest’s impending IPO; a bill to criminalize “social media extortion”

As we have noted <a href="https://www.sociallyawareblog.com/2016/08/24/hassell/" target="_blank" rel="noopener">previously</a>, the California Court of Appeal’s <a href="https://www.rcfp.org/briefs-comments/hassell-v-bird-1/" target="_blank" rel="noopener">Hassell v. Bird</a> decision in 2016 upholding an injunction requiring Yelp to remove certain user reviews was discouraging to social media companies and other online intermediaries, as well as to <a href="https://www.techdirt.com/articles/20160608/17040434662/another-day-another-horrible-ruling-that-undermines-first-amendment-section-230.shtml" target="_blank" rel="noopener">fans of Section 230 of the Communications Decency Act and proponents of Internet free speech generally</a>. The recent California Supreme Court decision reversing the Court of Appeal was, therefore, met with considerable relief by many in the Internet community.But while the California Supreme Court’s decision is undoubtedly a significant development, it would be premature for Section 230 fans to break out the champagne; the “most important law protecting Internet speech” remains <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">under attack from many directions</a>, and this recent decision is far from definitive. But before getting into the details of the Hassell v. Bird opinion, let’s step back and consider the context in which the case arose.Before Section 230: A Wild, Wild WebA fundamental issue for social media platforms and other online intermediaries, including review sites like Yelp, is whether a company may be held liable when its customers engage in bad behavior, such as posting defamatory content or content that infringes the IP rights of third parties. Imagine if Facebook, Twitter, YouTube, and Yelp were potentially liable for defamation every time one of their users said something nasty (and untrue) about another user on their platforms. It would be hard to imagine the Internet as we currently know it existing if that were the case.But that is where we were in the mid-1990s, based on some case law from that period. Think back to the early days of the interactive Web. Online services, like <a href="http://www.internethistorypodcast.com/2014/04/chapter-3-part-1-compuserve-prodigy-aol-and-the-early-online-services/" target="_blank" rel="noopener">Prodigy and CompuServe</a> were the first large-scale attempts to bring an interactive “social” online experience to the public. These services hosted online news forums and offered a safe moderated environment for social networking and discussions. But, of course, users did not always behave well on these platforms.For example, in a New York state case from 1995, <a href="https://h2o.law.harvard.edu/cases/4540/export" target="_blank" rel="noopener">Stratton Oakmont v. Prodigy Services</a>, a user of Prodigy’s Money Talk bulletin board created a post that claimed that Stratton Oakmont (a Long Island securities investment banking firm) and its president committed criminal and fraudulent acts in connection with an IPO. Stratton Oakmont sued Prodigy and the anonymous poster for defamation. The Stratton court held that Prodigy was liable as the publisher of the content created by its users because it exercised editorial control over the messages on its bulletin boards.As you can imagine, this result—that an online service provider is liable as the publisher of defamatory content posted by its users—was alarming to the companies that provided such services. This led to the enactment of the Communications Decency Act, specifically <a href="http://www.columbia.edu/~mr2651/ecommerce3/2nd/statutes/CommunicationsDecencyAct.pdf" target="_blank" rel="noopener">Section 230</a>, a statute that was at the heart of Hassell v. Bird. Section 230 immunizes online service providers from liability stemming from the publication and filtering of content created by a third party. Section 230(c)(1) states that an “interactive computer service provider” (which covers essentially any online service provider) cannot be treated as a publisher or speaker of content provided by a separate “information content provider” (which is often a user). Many Section 230 cases involve defamation allegations against websites based on publication of user-generated content. Courts have generally held that Section 230 immunity applies in these cases and Section 230 is often interpreted broadly.Section 230: The Early DaysThe first major case to interpret Section 230 was a Fourth Circuit case, <a href="http://www.dmlp.org/sites/citmedialaw.org/files/Zeran-4thCircuitOpinion.pdf" target="_blank" rel="noopener">Zeran v. America Online</a> in 1997. In Zeran, an anonymous post on an AOL bulletin board advertised the sale of t-shirts with slogans glorifying the <a href="https://www.cnn.com/2013/09/18/us/oklahoma-city-bombing-fast-facts/index.html" target="_blank" rel="noopener">Oklahoma City bombing</a> (for those too young to remember, this was the domestic terrorist truck bombing of a federal office building in Oklahoma City that killed 168 people, including many children in a day care center).The t-shirts displayed highly offensive slogans such as “Finally a day care center that keeps the kids quiet—Oklahoma 1995.” The post instructed readers to contact plaintiff Kenneth Zeran and listed his home phone number.Zeran, in fact, had nothing to do with the post and was apparently randomly targeted as part of a prank. Zeran began receiving threatening calls. AOL removed the post at Zeran’s request, but similar posts appeared. Less than a week after the initial post, Zeran was receiving threatening calls every two minutes and his house was put under protective surveillance.Zeran sued AOL, alleging that the company was negligent in failing to adequately respond to the posts after becoming aware that they were fraudulent. AOL claimed that it was protected by Section 230. Zeran, however, argued that AOL was not protected by Section 230 because it was a distributor of information, rather than a publisher.The court rejected this distinction between distributors and publishers, holding that Section 230 provided immunity for both the distribution and publication of content and finding that AOL was immune from liability. Today, twenty years later, the Fourth Circuit’s holding in Zeran is still good law. It is not an overstatement to say that, at least from a legal point of view, the Fourth Circuit’s broad interpretation of Section 230 in this case was instrumental in the development of the commercial Internet in its early days.So that is where Section 230 stood for many years—with relatively few exceptions, Section 230 was held to provide website owners with a broad immunity from a variety of claims based on content and information provided by users, even where the content at issue is extremely objectionable. For example, in <a href="http://www.opn.ca6.uscourts.gov/opinions.pdf/14a0125p-06.pdf" target="_blank" rel="noopener">Jones v. Dirty World Entertainment Recordings</a>, the Sixth Circuit held that a gossip website known as “The Dirty” was immune from liability for defamation claims based on posts about Sarah Jones, a cheerleader for the Cincinnati Bengals. The posts included Jones’s picture and statements regarding her sex partners, as well as allegations that she had sexually transmitted diseases. In that case, Section 230 applied notwithstanding the distasteful nature of the content and the fact that the website operator seemingly encouraged the posting of such content.Cracks in Section 230’s ArmorIn the last few years, however, we started to see cracks in Section 230’s armor, with courts more often holding for plaintiffs and finding that Section 230 immunity did not apply in an increasing number of cases. We also saw earlier this year the enactment of a package of laws known as SESTA-FOSTA (known as the “<a href="https://www.congress.gov/bill/115th-congress/senate-bill/1693/text" target="_blank" rel="noopener">Stop Enabling Sex Traffickers Act</a>” in the Senate and the “<a href="https://www.congress.gov/bill/115th-congress/house-bill/1865/text" target="_blank" rel="noopener">Allow States and Victims to Fight Online Sex Trafficking Act</a>” in the House of Representatives), which created an exception to Section 230 related to facilitation of sex trafficking. We noted this trend in a prior Socially Aware blog post and <a href="https://blog.ericgoldman.org/archives/2017/09/debunking-some-myths-about-section-230-and-sex-trafficking-guest-blog-post.htm" target="_blank" rel="noopener">other commentators</a> have written about it as well.Amid that environment in 2016, the California Court of Appeal’s Hassell v. Bird opinion landed with a thud. Decided in the wake of <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">a series of cases that had already eroded Section 230’s protections</a>, Hassell v. Bird was seen by the Internet law community not merely as a problematic outlier, but rather as the culmination of a disturbing trend already well underway. But now we are getting ahead of ourselves, so let’s go back and look at the details of Hassell v. Bird.Back to Hassell v. BirdIn 2012, a San Francisco attorney named Dawn Hassell took on a client named Ava Bird in a personal injury case. At some point, the relationship went sour and Hassell withdrew from representing Bird. Bird then posted a review of Hassell’s firm on Yelp.com in January 2013, under the name “Birdzeye B. Los Angeles, CA.” She gave Hassell one star and included various complaints about Hassell’s work in her review. Upon seeing these reviews, Hassell contacted Bird and asked her to remove the reviews from Yelp. Bird refused.Another negative one-star review of Hassell’s firm was posted the next month, this time under the name “J.D. Alameda, C.A.” Hassell had never represented a client with the initials J.D. and she suspected Bird had written this review as well based on similarities in the two reviews’ writing styles.Hassell filed a complaint against Bird in April 2013, alleging that Bird’s negative reviews were defamatory and injurious to Hassell’s business reputation. Bird defaulted and the trial court awarded Hassell more than $500,000 in damages and issued an injunction ordering Bird to remove the Yelp reviews and refrain from posting any additional reviews of Hassell’s firm.So far so good, but here is where the trouble started: The trial court’s injunction also ordered Yelp to remove Bird’s reviews, even though Yelp was not a party in the defamation case.And why didn’t Bird name Yelp as a party? Think back to the Section 230 cases discussed above—Yelp would almost certainly have been able to get a defamation claim against it based on Bird’s reviews dismissed under Section 230. By not naming Yelp and getting a default judgment against Bird, however, Hassell managed to get the court to issue an injunction not only against Bird but also against Yelp, something Hassell would not likely have been able to achieve if she had sued Yelp directly.In any event, when Yelp refused to remove the reviews, the case ended up in the Court of Appeal and, in June 2016, the court <a href="https://www.leagle.com/decision/incaco20160607019" target="_blank" rel="noopener">upheld the injunction requiring Yelp</a> to remove the existing reviews. (The court did hold that the portion of the injunction that ordered Yelp to remove future reviews was an unconstitutional prior restraint.)The Court of Appeal’s decision includes a lot of procedural detail about whether Yelp has standing to challenge the trial court’s judgment and whether a non-party may be bound by an injunction. The court also spends considerable time analyzing Yelp’s due process and First Amendment claims. I am not going to address most of the court’s discussion of those claims because, in this article, I’m focusing on the Section 230 issues. It is worth noting, however, that the Court of Appeal is very dismissive of Yelp’s First Amendment arguments because this dismissiveness seems to color the court’s approach to the Section 230 issues.The Court of Appeal first disregards Yelp’s argument that it has a First Amendment interest in disseminating Bird’s speech as curator of content, similar to a publisher or a distributor of books or newspapers. The court says, in a conclusory fashion, that the injunction “does not treat Yelp as a publisher of Bird’s speech, but rather as the administrator of the forum that Bird utilized to publish her defamatory reviews.” This is a confusing statement because the court does not clearly explain either the difference between a publisher and an administrator of a forum, or why that should matter for First Amendment purposes.The court then goes on to say that, even if Yelp is a publisher, it has no First Amendment interest in publishing Bird’s reviews because the reviews have already been determined to be defamatory and defamatory speech is not protected by the First Amendment. This ignores the fact that, due to the default judgment against Bird, the trial court never determined on the merits that the reviews were defamatory. And, in any event, certainly Yelp never had a chance to challenge that determination.Despite the court’s determinations against Yelp on these issues, however, Section 230 could still save the day for Yelp. But, of course, it doesn’t. Instead, the Court of Appeal says that “[t]he removal order does not violate section 230 because it does not impose any liability on Yelp” and “[i]f an injunction is itself a form of liability, that liability was imposed on Bird, not Yelp.” Of course, Yelp could be subject to liability if it fails to comply with the injunction but, according to the court, “sanctioning Yelp for violating a court order would not implicate section 230 at all; it would not impose liability on Yelp as a publisher or distributor of third party content.”There appears to be a bit of Section 230 sleight of hand going on here. Recall that Section 230 provides immunity against any claim that treats an online service provider as a publisher or speaker of content provided by someone else. Here, the court says, Yelp’s potential liability is not based on treating Yelp as a publisher or speaker of Bird’s reviews; rather the potential liability to Yelp is from being in contempt of court for failing to comply with the injunction. And Section 230, says the court, does not provide immunity from that liability.The trouble with this reasoning, as many commentators noted, is that it opens up a huge loophole in Section 230. If an aggrieved person doesn’t like user content on a website, that person can sue the user. If the user does not appear—which is a pretty good bet, particularly if the suit is filed far from the user’s home—the plaintiff will get a default judgment, just as Hassell did. Then the plaintiff can take the default judgment to the website operator and force it to remove the content, thereby conveniently avoiding Section 230.Yelp appealed to the California Supreme Court. In support of Yelp’s request, amici submitted 14 letters representing more than 40 organizations, including companies such as Google, Facebook, and Twitter, as well as various public interest groups and law professors.The Supreme Court accepted the case and issued its decision on July 2, 2018, reversing the Court of Appeal’s judgment requiring Yelp to comply with the injunction. The Supreme Court voted 3-1-3, with a plurality opinion written by the Chief Justice and joined by Justices Chin and Corrigan, a concurring option written by Justice Kruger, and the remaining Justices dissenting in two separate opinions.Because this article is already quite long, I won’t address all of the points that the writers of the plurality, concurring, and dissenting opinions discussed. Suffice it to say that the plurality opinion turned primarily on Section 230 issues, and did not reach some of the First Amendment, procedural, and due process issues that the lower courts addressed.Essentially, the Supreme Court recognized that the injunction was a way to end-run Section 230. The Court noted specifically that “Yelp could have promptly sought and received section 230 immunity had plaintiffs originally named it as a defendant in this case.” The Court goes on to say, “The question here is whether a different result should obtain because plaintiffs made the tactical decision not to name Yelp as a defendant. Put another way, we must decide whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly. We believe the answer is no…. an order that treats an Internet intermediary ‘as the publisher or speaker of any information provided by another information content provider’ nevertheless falls within the parameters of section 230(c)(1).”The Court then makes the key point that an injunction against Yelp does, in fact, treat Yelp as a publisher for purposes of Section 230, noting that the injunction sought to overrule Yelp’s decision to publish Bird’s reviews. The Court goes on to say, “In substance, Yelp is being held to account for nothing more than its ongoing decision to publish the challenged reviews, and that “the duty that plaintiffs would impose on Yelp, in all material respects, wholly owes to and coincides with the company’s continuing role as a publisher of third party online content.” Because this is exactly what Section 230 prohibits, the injunction cannot stand.This result was a relief for many, as noted above, and the plurality opinion has a lot of good language for supporters of Section 230. But given the fractured Supreme Court decision and the fact that Section 230 remains under attack from many other directions, it seems likely that the trend toward reining in the historically broad scope of Section 230 immunity will continue. In any event, we will be keeping a close eye on further Section 230 developments.

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Section 230 Survives to Fight Another Day Following California Supreme Court Decision

Section 230 Survives to Fight Another Day Following California Supreme Court Decision

As we have noted previously, the California Court of Appeal’s Hassell v. Bird decision in 2016 upholding an injunction requiring Yelp to remove certain user rev

On July 19, 2018, in <a href="https://www.courtlistener.com/docket/6155716/24/may-v-expedia-inc/" target="_blank" rel="noopener">May, et al. v. Expedia Inc.</a>, U.S. Magistrate Judge Mark Lane issued a Report and Recommendation recommending that U.S. District Judge Robert Pitman for the Western District of Texas grant a motion to compel arbitration and dismiss a putative class action on the grounds that the plaintiff agreed to the defendants’ website’s Terms and Conditions, which contained a mandatory arbitration clause.HomeAway User Files Putative Class Action HomeAway is an online marketplace for vacation rental properties where property owners can list their properties for rent and travelers can book rental properties. HomeAway’s original business model was to charge owners a fee to list their properties (either on a one-year subscription or pay-per-booking basis) and to allow travelers to search and book rentals for free. HomeAway was acquired by Expedia in 2015 and changed its business model to charge travelers a fee to book rentals in mid-2016. Plaintiff James May had been a property owner who used HomeAway since 2013.In November 2016, the plaintiff filed a putative class action against Expedia and HomeAway for breach of contract, fraud, fraudulent concealment, and Oregon and Texas state law claims based on HomeAway’s imposition of a “traveler fee” and its negative effect on owners who used HomeAway to rent properties. The defendants moved to compel the plaintiff to arbitrate his claims based on HomeAway’s 2016 Terms and Conditions, which contained a mandatory arbitration clause.The defendants argued that the plaintiff agreed to the Terms and Conditions (and thus the arbitration clause incorporated therein) twice:<ul><li>when he renewed his HomeAway subscription in September 2016; and</li><li>when he booked his property through HomeAway’s website in October 2016.</li></ul>The plaintiff argued that he did not agree to the Terms and Conditions because:<ul><li>he renewed his HomeAway subscription in his wife’s name;</li><li>he did not receive actual or constructive notice that he agreed to the Terms and Conditions when he clicked “Continue” during the booking process; and</li><li>any agreement to arbitrate is illusory and unenforceable.</li></ul>Following the Fifth Circuit’s 2018 decision in <a href="http://www.ca5.uscourts.gov/opinions/pub/17/17-50088-CV0.pdf" target="_blank" rel="noopener">Arnold v. HomeAway, Inc.</a>, the parties agreed that the plaintiff’s argument that the arbitration agreement is illusory is precluded and that the only issue before the court was whether the parties entered an arbitration agreement. Magistrate Judge Lane then issued his Report and Recommendation finding the plaintiff contractually bound to the 2016 Terms and Conditions based on his subscription renewal and booking his property through HomeAway.HomeAway User’s Assignment of Account Not Enforceable First, the magistrate judge rejected the plaintiff’s argument that, because he had purchased the renewal subscription in his wife’s name on her behalf and with her authorization, he had not agreed to the 2016 Terms and Conditions on his own behalf. Although the plaintiff specifically renewed the subscription in his wife’s name to avoid being bound by the 2016 Terms and Conditions, he offered no legal argument or basis to show that this had any legal effect.The 2015 Terms and Conditions expressly did not allow the plaintiff to assign the Terms and Conditions absent HomeAway’s consent, and there was no evidence that HomeAway had consented to the purported assignment from the plaintiff to his wife.HomeAway User Was on Notice of Agreement to the Terms and ConditionsSecond, the magistrate judge rejected the plaintiff’s argument that, due to the placement and typeface of the hyperlink used by HomeAway, he had no notice that he was agreeing to the 2016 Terms and Conditions when he booked his property through HomeAway’s website.Magistrate Judge Lane distinguished the 2014 opinion in <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/18/12-56628.pdf" target="_blank" rel="noopener">Nguyen v. Barnes & Noble, Inc.</a>, which involved a hyperlink to the terms at the bottom of a webpage and did not require any affirmative action to demonstrate the user’s agreement to the terms. In contrast, HomeAway’s website presented the user with a notice directly above the “Continue” button that informed the user that he was agreeing to the hyperlinked Terms and Conditions by clicking the button to continue. A user could not complete the transaction without clicking the “Continue” button. This was sufficient to put the plaintiff on notice that he was agreeing to the hyperlinked Terms and Conditions by continuing the transaction.HomeAway User Equitably Estopped From Arguing Not BoundFinally, Magistrate Judge Lane noted that, if the plaintiff was not bound by the Terms and Conditions, the plaintiff could gain all of the benefits of his HomeAway account without being bound to terms he did not want to accept. Such a result dictates that even if the plaintiff was not contractually bound, he should be equitably estopped from contending that he is not bound by the Terms and Conditions.HomeAway TakeawayAlthough Judge Pitman has not issued a final order granting or denying the motion to compel arbitration, Magistrate Judge Lane’s Report and Recommendation provides insights into how a website operator can help to ensure that its users are subject to its online contractual terms, even where a user intentionally seeks to avoid being bound by such terms.*       *       *For more on the enforceability of online contracts, please read the following Socially Aware posts: <a href="https://www.sociallyawareblog.com/2016/02/22/clickwrap-browsewrap-and-mixed-media-contracts-a-few-words-can-go-a-long-way/" target="_blank" rel="noopener">Clickwrap, Browsewrap and Mixed Media Contracts: A Few Words Can Go a Long Way</a>; <a href="https://www.sociallyawareblog.com/2016/06/14/scroll-box/" target="_blank" rel="noopener">Terms and Conditions Buried in Easily Ignored Scroll Box Don’t Cut It, the Seventh Circuit Holds</a>; <a href="https://www.sociallyawareblog.com/2016/08/31/court-upholds-enforceability-of-clickwrap-employee-agreement/" target="_blank" rel="noopener">Court Upholds Enforceability of “Clickwrap” Employee Agreement</a>, and; <a href="https://www.sociallyawareblog.com/2015/10/06/three-steps-to-help-ensure-the-enforceability-of-your-websites-terms-of-use/" target="_blank" rel="noopener">Three Steps to Help Ensure the Enforceability of Your Website’s Terms of Use.</a>

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Sneaky Website User Bound by Online Terms of Use’s Arbitration Provision Despite Renewing Subscription in Spouse’s Name

Sneaky Website User Bound by Online Terms of Use’s Arbitration Provision Despite Renewing Subscription in Spouse’s Name

On July 19, 2018, in May, et al. v. Expedia Inc., U.S. Magistrate Judge Mark Lane issued a Report and Recommendation recommending that U.S. District Judge Rober

An advertising executive who lost his job after being named on an anonymous Instagram account is suing the now-defunct account for defamation. The suit names as defendants not only the account—Diet Madison Avenue, which was intended to root out harassment and discrimination at ad agencies—but also (as “Jane Doe 1,” “Jane Doe 2,” et cetera) several of the anonymous people who ran it. Whether Instagram will ultimately have to turn over the identities of the users behind the account will turn on <a href="http://po.st/uSszCx" target="_blank" rel="noopener">a couple of key legal issues</a>.A <a href="https://www.nysenate.gov/legislation/bills/2017/s409" target="_blank" rel="noopener">bill</a> recently passed by the New York State Senate makes it a crime for “a caretaker to post a vulnerable elderly person on social media without their consent.” At least <a href="https://www.techdirt.com/articles/20180614/11230340040/ny-senate-passes-bill-that-would-make-it-crime-to-publish-photos-elderly-without-their-consent.shtml" target="_blank" rel="noopener">one tech columnist</a> thinks the legislation is so broadly worded that it violates the U.S. Constitution. That might be so, but—in light of several <a href="https://www.propublica.org/article/inappropriate-social-media-posts-by-nursing-home-workers-detailed-1" target="_blank" rel="noopener">news reports about this unfortunate form of elder abuse</a> over the last few years—that same columnist may not be correct about the bill likely having been passed in response to a one-time incident.A new law in Egypt that categorizes social media accounts and blogs with more than 5,000 followers as media outlets allows the government in that country to block those accounts and blogs for publishing fake news. Some critics aren’t buying the government’s explanation for the law’s implementation, however, and are suggesting it was inspired by <a href="https://www.reuters.com/article/us-egypt-politics/egypt-targets-social-media-with-new-law-idUSKBN1K722C" target="_blank" rel="noopener">a very different motivation</a>.Critics of the most recent version of the European Copyright Directive’s Article 13, which the European Parliament <a href="https://www.wired.co.uk/article/article-13-eu-copyright-directive-memes" target="_blank" rel="noopener">rejected in early July</a>, brought home their message by arguing that it would have <a href="http://po.st/KK3rc4" target="_blank" rel="noopener">prevented social media users from uploading and sharing their favorite memes</a>.In a criminal trial, social media posts may be used by both the prosecution and the defense to impeach a witness but—as with all impeachment evidence—the posts’ use and scope is entirely within the discretion of the trial court. The New York Law Journal’s <a href="https://www.law.com/newyorklawjournal/2018/06/25/impeachment-by-social-media/?slreturn=20180627185402" target="_blank" rel="noopener">cybercrime columnist explains</a>.To thwart rampant cheating by high school children, <a href="http://po.st/32zB6H" target="_blank" rel="noopener">one country shut down the Internet nationwide</a> during certain hours and had social media platforms go dark for the whole exam period.Snapchat now allows users to unsend messages. <a href="http://po.st/7i8Tpf" target="_blank" rel="noopener">Here’s how</a>.Employees of Burger King’s Russian division recently had to eat crow for a tasteless social media campaign that offered women a lifetime supply of Whoppers as well as three million Russian rubles ($47,000) in exchange for accomplishing <a href="https://bleacherreport.com/articles/2782096-burger-king-sorry-for-food-offer-to-women-who-get-impregnated-by-world-cup-stars?utm_content=inf_1263_2490_2&tse_id=INF_49aaf5e075a311e88fd7d54564f8ca52" target="_blank" rel="noopener">a really crass feat</a>.We’ve all heard of drivers experiencing road rage, but how about members of the public experiencing robot rage? According to a company that supplies cooler-sized food-delivery robots, its’s a thing.

Social Links: Axed exec sues people behind anonymous Instagram account; bill protects elderly from social media exploitation; using social media to impeach witnesses in criminal trials

An advertising executive who lost his job after being named on an anonymous Instagram account is suing the now-defunct account for defamation. The suit names as

Social Links: Axed exec sues people behind anonymous Instagram account; bill protects elderly from social media exploitation; using social media to impeach witnesses in criminal trials

I confess: I have mixed emotions regarding the iconic “monkey-selfie” photo and all the hubbub it has created.Don’t get me wrong; I think monkeys are wonderful, and the photo deserves its iconic status. Who can resist smiling while viewing that famous image of Naruto, the macaque monkey who allegedly snapped the self-portrait?And the monkey selfie has been a boon to legal blogs. Our own posts regarding the photo have been among the most viewed content on Socially Aware (one of our posts prompted a call from my mother, who felt strongly that Naruto should be entitled to a copyright in the photo).But, let’s face it, in an era where technology disruption is generating so many critical and difficult copyright issues, the law relevant to the monkey selfie is pretty straightforward, at least in the United States. As the U.S. Copyright Office states in its Compendium II of Copyright Office Practices, for a work to be copyrightable, it must “owe its origin to a human being,” and that materials produced solely by nature, by plants or by animals do not count. U.S. courts have reached the same conclusion. (Although I note that David Slater, the nature photographer whose camera was used to take the photo, claims that he—and not the macaque—is in fact the author of the photo for copyright purposes.)Admittedly, there is an interesting discussion to be had around whether the law should be changed (especially given the fact that, under U.S. law, corporations can be authors for copyright law purposes). Moreover, media accounts of the monkey selfie story often miss the even larger issue: If human involvement is required to create copyrighted works, what does that mean for the growing number of news articles, music and other works created entirely by artificial intelligence (AI), or videos generated by Internet of Things (IoT) sensors, often as a result of considerable investment by the companies employing such AI and IoT technologies?So, with that background, you’ll understand why it is with some trepidation that I turn to recent developments in Naruto v. Slater, the so-called “monkey-selfie suit,” which is back in the headlines again.Last month, after refusing to grant a joint motion to dismiss that the parties filed after having reached a settlement, the U.S. Court of Appeals for the Ninth Circuit <a href="https://www.documentcloud.org/documents/4444209-Naruto-Monkey-PETA-v-Slater-CA9-Opinion-04-23-18.html" target="_blank" rel="noopener">held that: (1) People for the Ethical Treatment of Animals (PETA) lacked standing to sue on behalf of a monkey, and (2) animals cannot sue for copyright infringement</a>.<h5>The Background</h5>PETA brought the case to challenge photographer David Slater’s copyright claim on portraits—including the famous monkey-selfie image—that were taken when the macaque Naruto allegedly intentionally and repeatedly pressed the shutter on a camera that Slater had set up in Indonesia. After oral arguments in the Ninth Circuit, the suit settled, with Slater agreeing to donate 25% of his revenue from the photos to charities that protect the macaque’s habitat.<h5>Ninth Circuit Snubs the Settlement…</h5>But on April 13, 2018, the Ninth Circuit refused to grant the parties’ joint motion to dismiss the case, holding that “courts must be particularly wary of abetting ‘strategic behavior’ on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.”<h5>…And Then Decides the Case on Its Merits</h5>When, on April 24, the Ninth Circuit finally did decide the case on its merits, the court cited <a href="https://scholar.google.com/scholar_case?case=14748284771413043760&hl=en&as_sdt=6&as_vis=1&oi=scholarr" target="_blank" rel="noopener">Cetacean v. Bush</a>, a case holding that animals can’t sue unless Congress makes it clear they can. But, as The Verge <a href="https://www.theverge.com/2018/4/24/17271410/monkey-selfie-naruto-slater-copyright-peta" target="_blank" rel="noopener">points out</a>, the three-judge panel that wrote the opinion and its concurrence devoted a lot of text to expressing their disapproval of similar lawsuits that are brought by organizations like PETA and, according to the court, use “unwitting pawns” in pursuit of “ideological goals.”The Ninth Circuit concluded, based on Cetacean and “the text of the Copyright Act as a whole, the district court did not err in concluding that Naruto—and, more broadly, animals other than humans—lack statutory standing to sue under the Copyright Act.”<h5>Hollywood Came Calling</h5>Because PETA is unlikely to file another appeal, the drama between Naruto and Slater probably won’t play out again in court, but it might get a second life on the big screen. Condé Nast Entertainment has <a href="https://www.hollywoodreporter.com/news/monkey-selfie-film-works-at-conde-nast-1109061?utm_source=Sailthru&utm_medium=email&utm_campaign=THR%27s%20Today%20in%20Entertainment_now_2018-05-07%2010:10:53_rrahman&utm_term=hollywoodreporter_tie" target="_blank" rel="noopener">acquired the rights to Slater’s life</a>, according to The Hollywood Reporter. Though that studio’s films are usually based on stories that have run in its glossy magazines, in this case Condé Nast “skipped” publishing a Naruto v. Slater story, buying “life rights first so that it could move quickly on a movie.”With Naruto’s tale coming to the big screen, copyright lawyers can expect to continue to be peppered with monkey-selfie questions at family gatherings and other social events, perhaps for years to come.*       *       *For even more on the monkey selfie, please see the following Socially Aware articles: <a href="https://www.sociallyawareblog.com/2014/08/14/monkey-in-the-middle-of-selfie-copyright-dispute/" target="_blank" rel="noopener">Monkey in the Middle of Selfie Copyright Dispute</a> and <a href="https://www.sociallyawareblog.com/2014/11/18/monkey-selfie-redux/" target="_blank" rel="noopener">Monkey Selfie Redux</a>.

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Monkey-Selfie Case Returns—To Court & (Maybe) a Theater Near You

Monkey-Selfie Case Returns—To Court & (Maybe) a Theater Near You

I confess: I have mixed emotions regarding the iconic “monkey-selfie” photo and all the hubbub it has created. Don’t get me wrong; I think monkeys are wonderful

A <a href="http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2018&nr=82856&pos=7&anz=85">recent German Federal Court of Justice decision</a> may have a significant impact on content providers’ business models. Offering software that allows users to block advertising does not constitute an unfair commercial practice. Even providing advertisers with the option to pay for showing certain ads—a practice known as whitelisting—does not violate the unfair competition rules.Issued on April 19, the decision involved a legal dispute between the ad blocking software provider Eyeo GmbH and the online-content provider Axel Springer (which also happens to be Germany’s largest publishing house). The decision overruled the Higher Regional Court of Cologne’s previous decision, which, like the Federal Court of Justice, did not categorize Eyeo’s offer of its ad blocking product as an unfair competition practice, but did categorize paid whitelisting as unlawful.Axel Springer is now left with the final option of taking the case to the Federal Constitutional Court.Background and core arguments of the partiesEyeo, a German software company, offers the product AdBlock Plus, which allows Internet users to block ads online. The product became the most popular ad blocking software in Germany and abroad, with over 500 million downloads and 100 million users worldwide.In 2011, the company started to monetize its product by offering a whitelisting service that gives advertisers the option to pay to show their ads. To get on Eyeo’s list of companies whose ads are not blocked, advertisers have to comply with Eyeo’s “acceptable advertising” conditions and share their ad revenue with the company. The conditions dictate the advertising’s features such as its placement, size, and—in the case of text advertising—color.Shortly after the launch of the whitelisting feature, legal disputes started to unfold between content publishers and Eyeo.Axel Springer maintains that Eyeo obstructs Axel Springer’s business because: (1) Axel Springer is a company whose main source of income is its sale of ad space and (2) Eyeo’s ad blocking software causes Axel Springer to lose ad sales. The publisher emphasized that, while whitelisting certain advertisements is unlawful because it pressures advertisers to share their revenue with the ad blocking service’s provider, even the mere offering of a plug-in that blocks certain advertisements would constitute a violation of competition law.Axel Springer further maintained that ad blocking jeopardized the free media landscape, arguing that such programs “endanger the quality and pluralism of information providers and thus hurt the general interest.”The legal ground and the ruling of the Federal CourtThe German Unfair Competition Act serves the purpose of protecting competitors, consumers and other market participants against unfair commercial practices. It qualifies market behavior as unfair if it deliberately obstructs competitors. The Federal Court ruled that Eyeo’s business does not constitute such a deliberate obstruction. According to the court, Eyeo does not aim to obstruct other market participants with its commercial practice. Instead, the company pursues their own competitive business model: it obtains revenue by supplying advertisers with the opportunity to whitelist their ads.German competition law takes into account the intentions behind an economic player’s actions. According to precedent case law, even though the deliberate hindering of competitors does not require an anticompetitive purpose of the action, an anticompetitive intention needs to be pursued. The court held this requirement was not fulfilled.The court also makes an argument based on causality, stating that the user independently decides to use ad blocking software and Eyeo only provides the tool for users to implement that decision. According to the court, the indirect obstruction of the content provider’s offer cannot be unfair as users still have to actively install the ad blocking program. Generally speaking, if Eyeo weren’t providing Internet users with an effective tool to block ads, it might be someone else. And still, it would be the users installing and running the program.In this context, the court points out that Eyeo’s ad blocking software does not undermine any of the safeguards against ad blocking undertaken by the content provider. On the contrary, the publisher would be free to take defensive measures as many content providers already do, by, for example, locking out users that have ad blocking software installed. This possibility of defense leads the court to conclude that the freedom of press is not harmed as content providers are left with a reasonable option to deal with the commercial practice of ad blocking providers. With this argument, the Federal Court emphasizes that its ruling has been made on the basis of competition law, highlighting the freedom of different business models to compete for users.The court further rules that Eyeo’s business model does not constitute a general obstruction of the market as no sufficient indicators exist that the business model of the provision of free content on the Internet was destroyed by ad blocking.Finally, the Federal Court concludes, ad blocking software that provides a whitelisting function does not constitute an unduly aggressive commercial practice towards advertisers. The court states that Eyeo did not exploit its position in a way that would restrict the market participants’ freedom to make an informed decision. The court leaves open whether Eyeo is holding a position of power by owning technical tools that block ads.Take awayWhile the overruled decision made by the Higher Regional Court of Cologne had been in favor of the content providers financing their business through advertising, the decision of the Federal Court of Justice is in line with previous decisions of the Higher Regional Courts of Hamburg and Munich.In any case, it is apparent that the Federal Court’s decision is grounded only in unfair competition law. As such, it points out that it is the burden of digital business to compete in a highly innovative world. Competition law’s purpose is to ensure that the game is fair, but the game still belongs to the players. In this context, the court points to the fact that some content providers have started to prevent users with ad blocker software from seeing their content without first pausing or disabling the ad blocker software. The players involved in this market, above all the users, would then be reminded that rarely anything comes for free.It is questionable whether the Federal Court’s quite narrow-minded unfair competition perspective would sufficiently weigh on the fundamental importance of quality journalism and the press for a pluralistic society and democracy, which the German Federal Constitutional Court and the European Court of Human Rights have relentlessly emphasized. They also acknowledged that the funding through advertisements is critical and therefore protected by the freedom of the press.*          *          *For more on ad blocking issues, please see our earlier blog post, <a href="https://www.sociallyawareblog.com/2016/05/23/will-ad-blockers-kill-online-publishing/" target="_blank" rel="noopener">Will Ad Blockers Kill Online Publishing?</a>.

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German Federal Court: Unfair Competition Law No Basis to Ban Ad Blocking and Whitelisting

German Federal Court: Unfair Competition Law No Basis to Ban Ad Blocking and Whitelisting

A recent German Federal Court of Justice decision may have a significant impact on content providers’ business models. Offering software that allows users to bl

Based on copyright infringement, emotional distress and other claims, a federal district court in California <a href="https://www.nytimes.com/2018/04/11/us/revenge-porn-california.html?smid=tw-nytnational&smtyp=cur" target="_blank" rel="noopener">awarded $6.4 million</a> to a victim of revenge porn, the posting of explicit material without the subject’s consent. The judgment is believed to be one of the largest awards relating to revenge porn. A <a href="https://www.sociallyawareblog.com/2014/01/29/keeping-privates-private-the-legal-landscape-of-revenge-porn/" target="_blank" rel="noopener">Socially Aware post</a> that we wrote back in 2014 explains the difficulties of using causes of action like copyright infringement—and <a href="https://www.cybercivilrights.org/revenge-porn-laws/" target="_blank" rel="noopener">state laws</a>—as vehicles for fighting revenge porn.The highest court in New York State held that <a href="https://www.reuters.com/article/us-new-york-court-facebook/ny-top-court-says-private-facebook-photos-can-be-disclosed-idUSKCN1FX2L0?il=0" target="_blank" rel="noopener">whether or not a personal injury plaintiff’s Facebook photos are discoverable</a> does not depend on whether the photos were set to “private,” but rather “<a href="https://www.nycourts.gov/ctapps/Decisions/2018/Feb18/1opn18-Decision.pdf" target="_blank" rel="noopener">the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case</a>.”A federal district court held that Kentucky’s governor did not violate the free speech rights of two Kentucky citizens when he blocked them from commenting on his Facebook page and Twitter account. The <a href="https://www.bloomberglaw.com/public/desktop/document/Morgan_et_al_v_Bevin_Docket_No_317cv00060_ED_Ky_Jul_31_2017_Court/1?1523649763" target="_blank" rel="noopener">opinion</a> underscores differences among courts as to the First Amendment’s application to government officials’ social media accounts; for example, a <a href="http://www.slate.com/blogs/future_tense/2017/07/28/federal_court_rules_public_officials_cannot_block_social_media_users.html" target="_blank" rel="noopener">Virginia federal district court’s 2017 holding</a> reached the opposite conclusion in a case involving similar facts.Having witnessed social media’s potential to escalate gang disputes, judges in Illinois have <a href="http://www.fox32chicago.com/news/local/illinois-courts-debate-teen-defendants-social-media-law-1" target="_blank" rel="noopener">imposed limitations on some juvenile defendants’ use</a> of the popular platforms, a move that some defense attorneys argue violates the young defendants’ First Amendment rights.A bill proposed by California State Sen. Bob Hertzberg would require social media platforms to identify bots—automated accounts that appear to be owned by real people but are actually computer programs capable of simulating human dialog. Bots can spread a message across social media faster and more widely than would be humanly possible, and <a href="https://www.scientificamerican.com/article/how-twitter-bots-help-fuel-political-feuds/" target="_blank" rel="noopener">have been used in efforts to manipulate public opinion</a>.This CIO article lists the new strategies, job titles and processes that will be popular this year among businesses transforming into data-driven enterprises.A solo law practitioner in Chicago filed a <a href="https://dlbjbjzgnk95t.cloudfront.net/1020000/1020567/show_temp%20(42).pdf" target="_blank" rel="noopener">complaint</a> claiming defamation and false light against a former client who <a href="http://www.abajournal.com/news/article/chicago_solo_files_1.1m_defamation_suit_against_ex_client_for_alleged_legal" target="_blank" rel="noopener">she alleges posted a Yelp review calling her a “con artist” and a “legal predator”</a>  after, allegedly pursuant to the terms of his retainer, she billed $9,000 to his credit card for a significant amount of legal work.<a href="https://www.washingtonpost.com/news/business/wp/2018/03/30/how-carnival-got-a-teenager-to-hand-over-his-snapchat-handle/?noredirect=on&utm_term=.00ab9f3b6bcb" target="_blank" rel="noopener">Carnival Cruise Line put up signs</a> all over the hometown of the 15-year-old owner of the Snapchat handle @CarnivalCruise in order to locate him and offer him and his family a luxurious free vacation in exchange for the transfer of his Snapchat handle—and the unusual but innovate strategy paid off. Who knew that old-school billboards could be so effectively used for one-on-one marketing?

Social Links: Revenge porn victim awarded $6.4M; the discoverability of photos posted to Facebook; can users be blocked from government officials’ social media accounts?

Based on copyright infringement, emotional distress and other claims, a federal district court in California awarded $6.4 million to a victim of revenge porn, t

Social Links: Revenge porn victim awarded $6.4M; the discoverability of photos posted to Facebook; can users be blocked from government officials’ social media accounts?

Does a search engine operator have to delist websites hosting, without authorization, your trade secret materials or other intellectual property? The answer may depend on where you sue—just ask Google. The U.S. District Court for the Northern District of California <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=http://jolt.law.harvard.edu/digest/google-v-equustek-united-states-federal-court-declares-canadian-court-order-unenforceable&httpsredir=1&article=2589&context=historical" target="_blank" rel="noopener">recently handed the company a victory</a> over plaintiff Equustek Solutions Inc. in what has turned into an international battle where physical borders can have very real consequences on the Internet.The dispute began when a rival company, Datalink, allegedly misappropriated Equustek’s trade secrets in developing competing products. Equustek also alleged that Datalink misled customers who thought they were buying Equustek products. In 2012, Equustek obtained numerous court orders in Canada against Datalink. Datalink refused to comply, and Canadian court issued an arrest warrant for the primary defendant, who has yet to be apprehended.In September 2012, Equustek asked Google to delist search results for Datalink; Google declined this request. Equustek then sought a court order against Google in Canada and prevailed, resulting in Google removing 300 Datalink websites from search results generated by the Canadian version of its site, located at <a href="http://www.google.ca" target="_blank" rel="noopener">www.google.ca</a>. Google, however, did not take similar steps with respect to U.S. and other non-Canadian versions of its site, so the Datalink websites continued to appear in search results conducted by users outside of Canada.Equustek returned to the Canadian court, this time to seek an order compelling Google to remove the Datalink-related search results globally so that Datalink results would not appear for any Google users, regardless of their location. Equustek once again prevailed, and Google appealed to the Court of Appeal for British Columbia. That court, and later the Supreme Court of Canada, affirmed the trial court’s order.Google then brought the battle to the United States; in July 2017, it commenced an action in the U.S. District Court for the Northern District of California seeking a declaratory judgment that the Canadian court order cannot be enforced in the United States and an injunction against the enforcement of such order. (Equustek did not submit an opposition brief.)In support of its preliminary injunction motion, Google’s primary arguments were that the Canadian order (1) ignores the Communication Decency Act’s immunity for interactive service providers (2) directly conflicts with the First Amendment and (3) violates principles of international comity.In evaluating Google’s motion, a significant portion of the court’s analysis addressed the likelihood of Google’s success on the merits. The court focused on <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Section 230 of the Communications Decency Act</a>, which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Citing the Ninth Circuit’s <a href="http://caselaw.findlaw.com/us-9th-circuit/1493375.html" target="_blank" rel="noopener">en banc decision</a> in the Roommates.com case, the court noted that Section 230 “immunizes providers of interactive computer services against liability arising from content created by third parties.”The court found that Google met all three requirements to qualify for Section 230 immunity. First, the court noted that there is no question as to whether Google is a “provider” or an “interactive computer service,” citing previous cases that had so held and noting that the term “interactive computer service” can mean any information service, system or access software provider that allows multiple users to access a computer server.Second, the court noted that the way that Google’s web caching and search result aggregation process works makes it such that Datalink—and not Google—is the entity “providing” the information in question. The court characterized Google’s role as that of a passive intermediary providing access to the material in question.Finally, the court found that enforcement of the Canadian order would hold Google liable as “publisher or speaker” of the infringing material on Datalink’s websites. The court quoted the Supreme Court of Canada’s justification for the order, which characterized Google as “the determinative player in allowing the harm to occur,” and observed that the Ninth Circuit considers any claim requiring an intermediary to remove third-party content as treating that intermediary as a publisher.Turning to the remaining three factors for granting a preliminary injunction—irreparable harm, balance of the equities and the public interest—the court sided with Google on all three factors.It found that depriving Google of Section 230 protection harmed Google, and that the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law.It also noted that granting Google’s requested injunction would serve the public interest in that it would be in keeping with Congress’s finding that tort liability for websites’ hosting third-party content would severely limit free speech on the Internet. The court pointed out that Section 230 was specifically enacted in service of this proposition and underscored the fact that a strong policy in favor of fostering free speech online would be hampered by holding Google responsible for the third-party material it displays in its search results.According to the court, “The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites . . . [and] undermines the policy goals of Section 230 and threatens free speech on the global internet.”The court’s decision highlights the power of the Section 230 safe harbor and its critical role in facilitating the free flow of information online. However, if we step back to look at the larger issue, the Google-Equustek dispute—having generated conflicting court decisions in Canada and the United States—suggests that we may be moving toward an increasingly patchwork Internet rather than the borderless, monolithic information superhighway of the past few decades.In the near future, what you see online may depend on where you live.Further, as the Internet becomes more Balkanized, we may see situations where the strictest, most burdensome portion of the patchwork seeks to force all of the others to follow in its stead. Case in point: Europe’s emerging “right to be forgotten.” At first, in response to EU consumers seeking to exercise this right, Google had offered to scrub relevant search results from EU-versions of its website, but, following continued pressure from the EU, it agreed to filter the results shown to EU residents regardless of which version of the Google site they searched (so that, for example, Google.com would show the same scrubbed results to an EU resident as Google.fr). <a href="https://www.theguardian.com/technology/2016/may/19/google-right-to-be-forgotten-fight-france-highest-court" target="_blank" rel="noopener">According to France</a>, however, this arrangement is still not enough, and Google should scrub the results globally—even for users who reside in the many countries that do not recognize the right to be forgotten.What comes of this fight has yet to be known, but what is unmistakable is the slow and steady shift to an Internet that differs across borders. As this shift continues, U.S. laws aimed at facilitating online speech—such as Section 230 and the DMCA’s copyright safe harbors—are increasingly likely to butt heads with other countries’ laws seeking to regulate and even censor online speech.*          *          *For other Socially Aware blog posts regarding the CDA Section 230 safe harbor, please see the following: <a href="https://www.sociallyawareblog.com/2018/03/15/lawsuit-against-online-dating-app-grindr-dismissed-under-section-230-of-the-communications-decency-act/" target="_blank" rel="noopener">Lawsuit Against Online Dating App Grindr Dismissed Under Section 230 of the Communications Decency Act</a>; 2018: Predictions From Socially Aware’s Editors and Contributors; Snapchat Clocks Section 230 Win in Speed Filter Case; <a href="https://www.sociallyawareblog.com/2016/12/15/the-decline-and-fall-of-section-230/" target="_blank" rel="noopener">The Decline and Fall of Section 230?</a>; <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">In a Rough Year for CDA Section 230, Manchanda v. Google Provides Comfort to Website Operators</a>; and <a href="https://www.sociallyawareblog.com/2016/11/22/yelp-section-230-still-has-teeth/" target="_blank" rel="noopener">Yelp Case Shows CDA §230 Still Has Teeth</a>.

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The Coming Border Wars: U.S. Court Decision Refusing to Enforce Canadian Court Order Highlights the Growing Balkanization of the Internet

The Coming Border Wars: U.S. Court Decision Refusing to Enforce Canadian Court Order Highlights the Growing Balkanization of the Internet