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

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

Lawrence W. Gallick

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