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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CHALLENGE TO TEXAS AGE-VERIFICATION LAW RETURNED TO LOWER COURTThe U.S. Court of Appeals for the Fifth Circuit has sent a challenge to Texas’s controversial <a href="https://www.statesman.com/story/news/state/2024/09/13/scope-act-texas-hb-18-social-media-children-personal-data-online-judge-robert-pitman-block/75178891007/" target="_blank">online age verification law</a> back to district court for additional clarification, while leaving the lower court’s injunction blocking the legislation in place. In its current form, the law requires that companies (including social media platforms) that host or distribute digital content verify a user’s age if more than one-third of the content is “sexually harmful to minors.”<a href="https://aboutblaw.com/bgdo" target="_blank">In its opinion</a>, the Fifth Circuit wrote that the lower court failed to properly resolve who is covered by the law and the type of content under its purview. Though the law was set to go into effect on September 1, 2024, a <a href="https://ccianet.org/wp-content/uploads/2024/07/CCIA-and-NetChoice-v.-Paxton-Complaint-ECF-1.pdf" target="_blank">challenge filed in July 2024</a> by Computer & Communications Industry Association and NetChoice LLC secured a partial injunction in the U.S. District Court for the Western District of Texas, which effectively blocked implementation on First Amendment grounds. Texas Attorney General Ken Paxton immediately appealed the decision, which brings us to where we are today. Privacy concerns are at the heart of the case, with critics maintaining that this type of age verification law would put all users at significant risk for exploitation as a result of the data collected for verification. Proponents argue that the proliferation of smartphones has made pornographic content easily available to children and only legislation can protect them from themselves. <a href="https://www.newsweek.com/states-porn-age-verification-free-speech-1903108" target="_blank">Similar legislation</a> has been proposed or enacted in many states, prompting a <a href="https://www.sociallyawareblog.com/topics/state-social-media-laws-targeted-at-teens-face-opposition" target="_blank">slew of challenges</a>.FTC GOES AFTER SITEJABBER FOR FAKE PRODUCT REVIEWSAs we <a href="/topics/socially-aware-fake-reviews-real-rulings-and-an-epic-fail" target="_self">reported last month</a>, the Federal Trade Commission (FTC) is not playing around when it comes to fraudulent online reviews. It wasted no time when taking action against online review platform Sitejabber for violations of <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/r311003consumerreviewstestimonialsfinalrulefrn.pdf" target="_blank">new FTC rules</a> prohibiting false or deceptive customer testimonials and has issued a proposed consent order in a 5–0 decision. According to <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/SiteJabber-Complaint.pdf" target="_blank">the complaint</a>, Sitejabber collected ratings and reviews for its online business clients from consumers at the time of purchase, rather than after purchasers had an opportunity to actually use the products, and used this data to deceptively inflate its clients’ ratings. Commissioner Melissa Holyoak pointed out in her <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-sitejabber-statement.pdf" target="_blank">concurring statement</a> that Sitejabber’s embeddable web widget for instant product reviews is “an inherently deceptive tool.” Commissioner Andrew Ferguson <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-sitejabber-concurring-statement.pdf" target="_blank">agreed</a>, adding: “These widgets had no purpose other than to represent that those product ratings were derived from the reviews of consumers who had received and had a chance to use the product in question.” If it does not comply with FTC rules before a final consent order is issued, Sitejabber could be subject to fines of up to $51,744 for each violation.OMAR ABDULAZIZ LOSES APPEAL AGAINST XOmar Abdulaziz, a dissident Saudi blogger, activist, and <a href="https://www.imdb.com/title/tt11382384/?ref_=nm_flmg_knf_t_2" target="_blank">longtime associate of Jamal Khashoggi</a>, has lost his appeal against X. Abdulaziz alleged that X (known as Twitter at the time) improperly shared his private information with the Saudi government, leading to his arrest and torture. Abdulaziz filed the appeal after a California district court <a href="https://casetext.com/case/abdulaziz-v-twitter-inc-1" target="_blank">dismissed the complaint</a> for failure to plead the causation needed for Article III standing and negligence. The Ninth Circuit Court of Appeals disagreed with the lower court’s Article III stance, finding that the allegations in the complaint were sufficient for standing, but still rejected the appeal on statute of limitations grounds. The court <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/21-16195/21-16195-2024-11-06.html" target="_blank">ruled</a> that Abdulaziz’s claim was barred by California’s statute of limitations since it was not filed until 2019, though X notified him as early as 2015 that state-sponsored actors may have targeted his account.TIKTOK ORDERED TO SHUTTER OFFICES IN CANADACiting national security concerns, the Canadian government has <a href="https://www.canada.ca/en/innovation-science-economic-development/news/2024/11/government-of-canada-orders-the-wind-up-of-tiktok-technology-canada-inc-following-a-national-security-review-under-the-investment-canada-act.html" target="_blank">issued an order</a> requiring TikTok to shut down operations and close its offices in Canada. Though the order is light on details, Canadian intelligence agencies have long <a href="https://www.cbc.ca/news/politics/csis-tikok-vigneault-1.7206000">expressed apprehension</a> over the app’s data security and ties to the Chinese government. Canada has banned the app on government-issued devices since 2023 (like <a href="https://www.pbs.org/newshour/world/these-countries-have-already-banned-tiktok">many other countries</a>), but this new order requires TikTok to completely end operations at their Toronto and Vancouver offices. In a <a href="https://newsroom.tiktok.com/en-ca/our-response-to-canadas-order-to-shut-down-tiktok-canada-ca">statement</a>, TikTok pointed out that this action will result in the loss of hundreds of high-paying jobs and have pledged to fight it in court. The order does not block the app for Canadian citizens and content creators, though other countries <a href="https://www.npr.org/2024/04/24/1246663779/biden-ban-tiktok-us">have proposed</a> exactly that. University of Ottawa professor Michael Geist found the ruling misguided, <a href="https://www.michaelgeist.ca/2024/11/canadian-government-to-ban-tiktok-the-company-not-the-app/">writing</a> “[B]anning the company rather than the app may actually make matters worse since the risks associated with the app will remain but the ability to hold the company accountable will be weakened.”OPENAI TAKES PROACTIVE MEASURES FOR ELECTION INTEGRITYOpenAI’s wildly popular generative AI chatbot, ChatGPT, <a href="https://www.cnbc.com/2024/11/08/chatgpt-blocked-250000-image-generations-of-presidential-candidates.html">actively blocked</a> more than 250,000 requests to generate images of U.S. presidential candidates ahead of the election and <a href="https://techcrunch.com/2024/11/08/chatgpt-told-2m-people-to-get-their-election-news-elsewhere-and-rejected-250k-deepfakes/" target="_blank">redirected millions</a> of users to trusted news sites such as Reuters and the Associated Press when the chatbot was asked for candidate information. In a <a href="https://openai.com/index/how-openai-is-approaching-2024-worldwide-elections/" target="_blank">blog</a> posted on its official site, OpenAI detailed the steps taken to ensure its product would not be used for nefarious purposes, writing: “Protecting the integrity of elections requires collaboration from every corner of the democratic process, and we want to make sure our technology is not used in a way that could undermine this process.”DOMAIN NAMES CONTINUE TO INCREASE IN VALUEIn other OpenAI news, the company has purchased the domain <a href="https://chat.com/" target="_blank">chat.com</a> for <a href="https://www.theverge.com/2024/11/6/24289768/openai-chat-chatgpt-sam-altman-hubspot" target="_blank">reportedly</a> more than $ 10 million. The simpler URL is likely to position OpenAI's ChatGPT tool at the forefront of consumer awareness, and “Chat it” may soon become as ubiquitous as “Google it” in the online lexicon. Though the price tag may seem steep, this is probably a <a href="https://www.businessinsider.com/openai-acquires-chat-com-url-website-domain-2024-11" target="_blank">savvy move</a>. URL familiarity has become crucial in the digital marketplace and simple, memorable domain names are now extremely valuable properties. Former MTV VJ Adam Curry was quite possibly the first person to realize this, which may be the weirdest sentence you’ll read this month. He started <a href="https://mtv.com/" target="_blank">mtv.com</a> way back in 1994, but the network was uninterested in getting involved with this newfangled internet thing, so they let him have the domain. When they realized what a staggering mistake they made, <a href="https://law.justia.com/cases/federal/district-courts/FSupp/867/202/1456301/" target="_blank">lawsuits soon followed</a>.

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

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

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

Aaron Rubin

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

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

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

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

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

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

The high-end skincare brand Sunday Riley has settled lawsuits filed by the Federal Trade Commission claiming that the brand’s founder encouraged employees of her eponymous company to set up accounts “under different identities” on the cosmetics retail site Sephora.com and leave positive reviews for Sunday Riley’s products. The FTC filed the complaints after the agency conducted an investigation that was prompted by a whistle blower’s post on REDDIT last year. <a href="https://www.nytimes.com/2019/10/22/us/sunday-riley-fake-reviews.html" target="_blank" rel="noopener">Read about the settlement’s lenient terms</a>, which two of the FTC’s five commissioners don’t believe are severe enough to deter other companies from attempting to post fraudulent reviews online.Last month four senators—three Democrats and one Republican—<a href="https://www.forbes.com/sites/washingtonbytes/2019/10/22/the-access-act-promises-to-benefit-consumers/#2222238429e4" target="_blank" rel="noopener">introduced a bipartisan bill</a> to require communications platforms to provide their users with a means of exporting the data that their users have accumulated on the platforms, such as friends lists. The <a href="https://www.axios.com/senators-target-social-media-giants-with-data-portability-bill-222fc800-28ae-4917-8c06-ed55d809ff4a.html" target="_blank" rel="noopener">rationale</a> behind the legislation: making it easier for smaller platforms to compete with the likes of social media giants like Facebook and YouTube. Legislation like this is intended to benefit consumers and would require “<a href="https://www.forbes.com/sites/washingtonbytes/2019/10/22/the-access-act-promises-to-benefit-consumers/#3b66fe13429e" target="_blank" rel="noopener">operability standards to be revised</a>” as interfaces evolve, writes Forbes columnist Robert Seamans. The real challenge, he argues, would be determining the types of data covered by the legislation.<a href="https://blog.twitter.com/en_us/topics/product/2019/more-control-over-your-conversations-globally.html" target="_blank" rel="noopener">Twitter announced</a> it will extend to all of its users around the world the “Hide Replies” feature that it first <a href="https://techcrunch.com/2019/07/17/twitter-officially-launches-its-hide-replies-feature-initially-to-users-in-canada/" target="_blank" rel="noopener">tested in Canada in July</a> and then <a href="https://techcrunch.com/2019/09/19/twitter-launches-its-controversial-hide-replies-feature-in-the-u-s-and-japan/" target="_blank" rel="noopener">rolled out in the United States and Japan in September</a>. The feature allows users to “hide” any replies to their tweets. However, other Twitter users may view and respond to hidden replies by clicking a grey icon that appears on the tweets. <a href="https://blog.twitter.com/en_us/topics/product/2019/more-control-over-your-conversations-globally.html" target="_blank" rel="noopener">Twitter’s blog reports</a> that the platform’s test runs of the Hide Replies feature revealed that “27% of people who had their Tweets hidden said they would reconsider how they interact with others in the future,” and Twitter posters who hid replies “may want to take further action after [they] hide a reply, so now [Twitter will] check to see if you want to also block the replier.” This isn’t the first <a href="https://www.sociallyawareblog.com/2017/02/24/social-links-google-maps-gets-social-twitter-puts-trolls-in-time-out-todays-teens-take-to-chat-rooms/" target="_blank" rel="noopener">action that Twitter has taken to control trolls</a>, and the <a href="https://blog.twitter.com/en_us/topics/product/2019/more-control-over-your-conversations-globally.html" target="_blank" rel="noopener">platform’s blog promises</a> that it won’t be the last.Influencer culture has infiltrated the world of cybersecurity, with the Twitter accounts of several popular experts in that increasingly prominent field running ads for Lenovo’s “ThinkShield” line of products and services. VizSense, an influencer marker, reached out to the influencers, who included journalists, a former intelligence operative, and experts in areas like artificial intelligence, each with more than 10,000 Twitter followers apiece. <a href="https://www.axios.com/influencer-marketing-comes-to-cybersecurity-1a89489e-657b-4bc8-a42b-d1b9000ae2c0.html" target="_blank" rel="noopener">Find out why the campaign sparked controversy in the cybersecurity community</a>.Speaking of influencers, guess what <a href="https://www.bloomberg.com/news/articles/2019-11-05/becoming-an-influencer-embraced-by-86-of-young-americans" target="_blank" rel="noopener">Bloomberg reports</a> is now the number one career aspiration of the “overwhelming majority” of young Americans? Sigh.

Social Links: FTC fights fraudulent online product reviews; Twitter takes another swipe at trolls; Influencers affect everything from cybersecurity to career choices

The high-end skincare brand Sunday Riley has settled lawsuits filed by the Federal Trade Commission claiming that the brand’s founder encouraged employees of he

Social Links: FTC fights fraudulent online product reviews; Twitter takes another swipe at trolls; Influencers affect everything from cybersecurity to career choices

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

Searching “millennials killed…” on the Internet returns over 1.5 million results in .65 seconds. Commentators have blamed the generation raised by tablets, smartphones, and apps for killing everything from <a href="http://www.marketwatch.com/story/here-are-all-of-the-things-millennials-have-been-accused-of-killing-2017-05-22" target="_blank" rel="noopener noreferrer">marriage</a> to <a href="http://nypost.com/2017/03/23/millennials-have-officially-ruined-brunch/" target="_blank" rel="noopener noreferrer">brunch</a>, often deriding today’s youth for being too opinionated and too obnoxious. It is a bit ironic, then, that the right to complain was almost a casualty of the technology generation.Today, ecommerce and social media are ubiquitous and intertwined. For example, any ecommerce site worth its salt will include interactive user comments that enable purchasers to praise or critique products. Moreover, the power of online review sites, such as Yelp and Rotten Tomatoes, to set consumer tastes is only increasing. For example, a <a href="http://www.hbs.edu/faculty/Pages/item.aspx?num=41233" target="_blank" rel="noopener noreferrer">study</a> conducted at Harvard Business School concluded that a one-star improvement on Yelp would lead to a roughly 9% increase in revenue for restaurants. Considering how thin profit margins are in the restaurant sector, 9% could make or break a small business.In response to the growing significance of user reviews, some companies sought to protect their revenue streams by including non-disparagement clauses in form contracts, such as terms of service and other click-through agreements. Retailers, studios, restaurants and even <a href="http://www.cnn.com/travel/article/bad-hotel-review-fine-backlash/index.html" target="_blank" rel="noopener noreferrer">hotels</a> used these gag clauses to suppress bad reviews by levying fines and imposing other penalties on consumers.In some cases, these practices were abusive. For example, one small town Utah couple told their <a href="https://www.commerce.senate.gov/public/_cache/files/2966d0eb-8812-4035-ae59-4b75979864e4/93F3E6B5DE58928F85DF4367AEC0373A.jen-palmer-testimony.pdf" target="_blank" rel="noopener noreferrer">story</a> to the U.S. Senate Committee on Commerce, Science & Transportation. Jen Palmer left a negative review about a company after a twenty dollar Christmas purchase her husband made never arrived. Three years later, the company sent Ms. Palmer a demand for $3,500 claiming that her review violated the company’s terms of sale and use. When the Palmers were unable to pay, the company flagged them to credit agencies, creating a multi-year ordeal for their household. There have also been <a href="https://arstechnica.com/tech-policy/2011/05/all-your-reviews-are-belong-to-us-medical-justice-vs-patient-free-speech/" target="_blank" rel="noopener noreferrer">reports</a> of doctors and dentists requiring their patients to agree to gag clauses in order to receive medical treatment.Some time ago, <a href="http://www.sociallyawareblog.com/2015/06/29/the-right-to-give-one-star-reviews/" target="_blank" rel="noopener noreferrer">we discussed</a> in Socially Aware the possibility of the federal government taking action against such practices and, on December 14, 2016, President Obama signed into law the Consumer Review Fairness Act (CRFA). Now, as of March 14, 2017, the CRFA’s provisions prohibiting gag clauses in the context of customer reviews have become effective.<h4>What Activities Are Banned?</h4>The <a href="https://www.congress.gov/bill/114th-congress/house-bill/5111/text" target="_blank" rel="noopener noreferrer">CRFA</a> cracks down on three main activities. Specifically, companies are prohibited from using form contracts to restrict a consumer’s ability to leave reviews about goods or services they received, imposing penalties for leaving negative reviews, and requiring assignment by the consumer of intellectual property rights in reviews. Further, the CRFA is not limited to written reviews or the typical five-star rating system employed by many review sites. Even pictures and videos created by consumers fall under the protection of the CRFA.The fact that the CRFA applies to pictures and videos, combined with the provision prohibiting compulsory assignment of intellectual property rights in reviews, effectively stops companies from using a particularly creative method of censoring reviewers. In <a href="https://www.eff.org/files/2016/02/02/eff-comment-on-md-hb-131.pdf" target="_blank" rel="noopener noreferrer">written testimony</a> to the state of Maryland, the Electronic Frontier Foundation (EFF) described a method whereby companies would require consumers to agree to assign to the company the copyright in any reviews created by the consumers. Then, if the consumers posted a video of themselves demonstrating or discussing a product to a website (such as YouTube), companies would send a takedown notice under the Digital Millennium Copyright Act (DMCA) to assert ownership of the video and demand that the website remove the video. The EFF called this practice a “disturbing trend” among companies and made reference to one <a href="https://www.eff.org/deeplinks/2011/05/medical-justice-stifling-speech-patients-touch" target="_blank" rel="noopener noreferrer">medical organization</a> actually instructing doctors to use the DMCA to restrict negative reviews.<h4>Effectiveness of the CRFA</h4>As noted above, the CRFA’s provisions prohibiting gag clauses became effective on March 14, 2017. These provisions apply to consumer contracts in effect on or after that date, meaning that companies are prohibited from enforcing gag clauses in such contracts even if the contracts were entered into previously (though companies are not subject to penalties for having entered into such contracts prior to March 14, 2017). The state attorneys general and the Federal Trade Commission (FTC) have authority to enforce the CRFA, but such enforcement will not begin until December 14, 2017 and will apply only to contracts in effect on or after that date.<h4>Exceptions and Limits</h4>As noted above, the CRFA only applies to form contracts containing boiler plate provisions that consumers are unable to negotiate. This means contracts that are meaningfully negotiated are not covered by the protections of the CRFA. Additionally, the CRFA does not protect would-be reviewers from civil actions where their content includes confidential, sensitive or private information, or constitutes defamation, libel or slander. Nor does the CRFA stop companies from removing posts on their own sites that are defamatory, obscene, explicit, harassing, false, unrelated to the business or misleading. The FTC has <a href="https://www.ftc.gov/tips-advice/business-center/guidance/consumer-review-fairness-act-what-businesses-need-know" target="_blank" rel="noopener noreferrer">cautioned companies</a> that a consumer’s pure opinion is not likely to meet the “clearly false or misleading standard.” Finally the statute does not apply to employment contracts or agreements between companies and independent contractors.<h4>Penalties</h4>The CRFA does not offer a private cause of action for consumers. As mentioned above, enforcement will not begin for a few more months, but once it does the state attorneys general and the FTC will be charged with enforcing the law. The CRFA states that companies may be subject to investigations, fines and lawsuits but does not identify specific penalties. Rather, it grants the FTC and the states the power to bring civil actions directly against companies that violate the CRFA. Additionally, the FTC is authorized to treat any violation of the CRFA as an unfair or deceptive business practice, as defined in the <a href="https://www.house.gov/content/vendors/leases/tort.php" target="_blank" rel="noopener noreferrer">Federal Tort Claims Act</a>. It should also be noted that the CRFA does not preempt state laws regarding consumer reviews, and such laws may provide consumers with additional remedies. For example, California’s “<a href="http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB2365" target="_blank" rel="noopener noreferrer">Yelp law</a>” also banned gag clauses in consumer contracts and dates back to January 2015.<h4>Conclusion</h4>In short, while the CRFA does not spell the end of gag-clauses in all circumstances, the statute protects the rights of millennials to cry over spilled mimosa, empowers disgruntled holiday shoppers who didn’t get their “Tickle-Me-Sebastian” dolls in time to blast retailers and provides a safe harbor for anyone else who was done wrong by a company or business to “get their gripe on” in a public forum.

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Get Your Gripe On: The Consumer Review Fairness Act Is Live

Get Your Gripe On: The Consumer Review Fairness Act Is Live

Searching “millennials killed…” on the Internet returns over 1.5 million results in .65 seconds. Commentators have blamed the generation raised by tablets, smar

A federal district court judge refused to grant summary judgment to the copyright owners of the Star Trek franchise in the infringement suit they brought against the team behind a fan-made, crowdfunded prequel to the original Star Trek television series.Strict new European Union privacy rules will <a href="https://www.bloomberg.com/news/articles/2017-01-10/google-facebook-face-tighter-eu-grip-with-new-privacy-law-ixrikusj" target="_blank" rel="noopener">restrict Internet companies’ access to consumers’ data</a>.Brands might soon be able to <a href="http://nymag.com/selectall/2017/01/instagram-stories-testing-ads.html" target="_blank" rel="noopener">place video ads</a> within Instagram Stories.Driving while Snapchatting (or holding your cell phone in your hand for any other possible reason) is now illegal in California.China is reportedly testing a system that <a href="http://www.cbsnews.com/news/china-communist-party-social-credit-score-silence-critics/" target="_blank" rel="noopener">assigns potentially life-altering “scores”</a> to people based on their online activity.How much about the future of the Internet do you think <a href="http://www.businessinsider.com/bill-gates-internet-predictions-2015-12/#content-created-for-the-internet-would-be-just-as-big-a-moneymaker-as-tv-1" target="_blank" rel="noopener">Bill Gates was able to predict</a> 20 years ago?The 58th Presidential Inaugural Committee website’s privacy policy apparently <a href="https://www.linkedin.com/pulse/privacy-policy-drafting-lessons-from-presidential-web-polonetsky?published=t" target="_blank" rel="noopener">contains language suggesting it was lifted</a> from a casino website.  A small neighborhood restaurant <a href="http://gothamist.com/2017/01/10/epic_yelp_clap_back.php" target="_blank" rel="noopener">turned the tables</a> on a Yelp critic.Concerned about the post-mortem fate of your property, legacy and reputation? Don’t forget your digital assets. This <a href="https://www.nytimes.com/2017/01/18/technology/is-your-digital-life-ready-for-your-death.html?_r=1" target="_blank" rel="noopener">New York Times article</a> explains how to make sure your wishes are carried out.If you spot <a href="http://www.bravotv.com/blogs/these-are-the-apps-cheaters-are-using-to-get-away-with-their-secret-life?cid=soc_dg_fb_PersonalSpace" target="_blank" rel="noopener">these apps</a> on your significant other’s phone, it might be time to worry.

Social Links: Will a fan-made Star Trek prequel live long and prosper?; California bans driving while Snapchatting; apps that facilitate infidelity

A federal district court judge refused to grant summary judgment to the copyright owners of the Star Trek franchise in the infringement suit they brought agains

Social Links: Will a fan-made Star Trek prequel live long and prosper?; California bans driving while Snapchatting; apps that facilitate infidelity

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

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

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

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

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

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

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