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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2016 has been a tough year for a lot of reasons, most of which are outside the scope of this blog (though if you’d like to hear our thoughts about Bowie, Prince or Leonard Cohen, feel free to drop us a line). But one possible victim of this annus horribilis is well within the ambit of Socially Aware: Section 230 of the Communications Decency Act (CDA).Often hailed as <a href="http://www.theatlantic.com/business/archive/2013/09/the-law-that-gave-us-the-modern-internet-and-the-campaign-to-kill-it/279588/" target="_blank" rel="noopener">the law that gave us the modern Internet</a>, CDA Section 230 provides immunity against liability for website operators for certain claims arising from third-party or user-generated content. The Electronic Frontier Foundation has called Section 230 “the most important law protecting Internet speech,” and companies including <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">Google</a>, Yelp and <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2089&context=historical" target="_blank" rel="noopener">Facebook</a> have benefited from the protections offered by the law, which was <a href="http://www.law360.com/articles/836281/section-230-of-the-communications-decency-act-turns-20" target="_blank" rel="noopener">enacted 20 years ago</a>.But it’s not all sunshine and roses for Internet publishers and Section 230, particularly over the past 18 months. Plaintiffs are constantly looking for chinks in Section 230’s armor and, in an unusually large number of recent cases, courts have held that Section 230 did not apply, raising the question of whether the historical trend towards broadening the scope of Section 230 immunity may now be reversing. This article provides an overview of recent cases that seem to narrow the scope of Section 230.The “Publisher or Speaker” Requirement CDA Section 230(c)(1) states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Plaintiffs sometimes argue that Section 230 does not apply because the claims they are asserting do not treat the defendant as a publisher or speaker. This has not always been a successful argument, but it has prevailed in several recent cases.<a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/05/31/12-56638.pdf" target="_blank" rel="noopener">Doe #14 vs. Internet Brands</a> involved a website called Model Mayhem, which is designed to match models with prospective gigs. In 2012, a Jane Doe plaintiff sued Internet Brands, the parent company of Model Mayhem, alleging that the site’s operators were negligent in failing to notify its users of the risk that rapists were using the website to find victims. Consequently, Doe argued, she was drugged and raped by two assailants who had used the website to lure her to a fake audition.The plaintiff argued that Section 230 did not apply because a “failure to warn” claim did not depend on Model Mayhem being the publisher or speaker of content provided by another person. The Ninth Circuit bought the plaintiff’s argument and overturned the district court’s earlier dismissal of the case, which had been based on Section 230 immunity.In his opinion, Judge Clifton explained that Jane Doe did not seek to hold Internet Brands liable as a publisher or speaker of content posted by a user on the website, or for its failure to remove content posted on the website. Instead, she sought to hold Internet Brands liable for failing to warn her about information it obtained from an outside source about how third parties targeted victims through the website. This duty to warn would “not require Internet Brands to remove any user content or otherwise affect how it publishes or monitors such content.” Since the claim did not treat Internet Brands as a publisher or speaker, the court ruled that Section 230 did not apply.<a href="http://blog.ericgoldman.org/archives/2016/05/section-230-baffles-9th-circuit-again-doe-14-v-modelmayhem.htm" target="_blank" rel="noopener">Some commentators</a> have criticized this ruling, arguing that imposing an obligation on website operators to warn about potentially harmful users is impractical and contrary to the principles of Section 230 and of many prior cases, and will cause websites to self-censor and over-censor.A similar argument worked—to an extent—in <a href="https://casetext.com/case/darnaa-llc-v-google-inc-1" target="_blank" rel="noopener">Darnaa v. Google</a>, a Northern District of California case that involved YouTube’s removal of the plaintiff’s music video based on YouTube’s belief that the plaintiff had artificially inflated view counts. The plaintiff sued for breach of the covenant of good faith and fair dealing, interference with prospective economic advantage and defamation. She sought damages and an injunction to prevent YouTube from removing the video or changing the video’s URL.The district court held that Section 230(c)(1) preempted the plaintiff’s interference claim, but not her good faith and fair dealing claim. The court explained that the latter claim sought to hold YouTube liable for breach of its good faith contractual obligation to the plaintiff, rather than in its capacity as a publisher; as such, Section 230 did not shield YouTube against this claim.In a similar vein, a California Court of Appeal refused to apply the Section 230 safe harbor in a case involving Yelp, which we <a href="https://www.sociallyawareblog.com/2016/08/24/hassell/">recently wrote about</a>. In <a href="http://www.leagle.com/decision/In%20CACO%2020160607019/HASSELL%20v.%20BIRD" target="_blank" rel="noopener">Hassell v. Bird</a>, the plaintiff, an attorney, sued a former client for defamation regarding three negative reviews that the plaintiff claimed the defendant had published on Yelp.com under different usernames. When the defendant failed to appear, the court issued an order granting the plaintiff’s requested damages and injunctive relief. The court also entered a default judgment ordering Yelp to remove the offending posts. Yelp challenged the order on Section 230 grounds, among others, but the court held that Section 230 did not apply. It reasoned that Yelp was not itself being sued for defamation, so it did not face liability as a speaker or publisher of third-party speech.Likewise, the Northern District of California court in <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2324&context=historical" target="_blank" rel="noopener">Airbnb v. City and County of San Francisco</a> denied Airbnb’s request for a preliminary injunction barring enforcement of a San Francisco ordinance that makes it a misdemeanor to provide booking services for unregistered rental units. Airbnb argued that such an ordinance would conflict with Section 230, which contains an express preemption clause stating that no liability may be imposed under any state or local law that is inconsistent with Section 230.The decision turned on whether the ordinance “inherently requires the court to treat [Airbnb] as the ‘publisher or speaker’ of content provided by another.” Airbnb argued that the threat of criminal penalty for providing booking services for unregistered rental units would require that the company actively monitor and police listings by third parties to verify registration, which would be tantamount to “treating it as a publisher” because that would involve traditional publisher functions of reviewing, editing and selecting content to publish.But the court held that the ordinance did not treat Airbnb as the publisher or speaker of the rental listings because it applies only to providing and collecting fees for booking services in connection with an unregistered unit, and does not regulate what can and cannot be published. Therefore, the court denied the request for preliminary injunction.Section 230’s Application to “Providers and Users” Plaintiffs sometimes argue along with the “publisher or speaker” argument that Section 230 does not apply where the defendant does not fall within the category of “providers and users of an interactive computer service,” as required under Section 230(c)(1). This argument worked for the plaintiff in <a href="https://law.justia.com/cases/minnesota/supreme-court/1990/c3-88-2343-2.html" target="_blank" rel="noopener">Maxfield v. Maxfield</a>, a Connecticut state court case.In Maxfield, the plaintiff sued his ex-wife for defamation, claiming that she forwarded screenshots of defamatory tweets about him to his current wife. The ex-wife defended on Section 230 grounds, based on the fact that she forwarded third-party tweets but did not write the Tweets herself. The court, however, found that she was not covered by Section 230 immunity because she “merely transmitted” the defamatory messages. The opinion states: “Ms. Maxfield does not operate a website and plainly is not ‘a provider of an interactive computer service.’ While she might, on occasion, be considered a ‘user of an interactive computer service,’ she did not do so in the behavior alleged in the complaint.” Therefore, the court rejected the defendant’s Section 230 defense.It is worth noting that the Maxfield decision runs contrary to <a href="http://blog.ericgoldman.org/archives/2010/11/forwarding_defa_1.htm" target="_blank" rel="noopener">several prior cases</a> in which courts have held that forwarding defamatory emails would, in fact, be covered by Section 230.Defendants as Content DevelopersOne of the most commonly exploited plaintiff’s arguments against Section 230 defenses is that the statutory immunity does not apply if the defendant itself developed or contributed to the relevant material. In other words, the relevant material is not “information provided by another information content provider” and therefore falls outside of the scope of Section 230. Courts have historically been fairly strict about applying this exception, and <a href="http://www.dmlp.org/legal-guide/online-activities-covered-section-230" target="_blank" rel="noopener">have consistently held</a> that editing, selecting and commenting on third-party content does not take a defendant out of Section 230 immunity. However, recent cases seem to blur the line between what it means to “develop” content and to exercise editorial functions.In <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2161&context=historical" target="_blank" rel="noopener">Diamond Ranch Academy v. Filer</a>, the plaintiff, who ran a residential youth treatment facility, sued the defendant, who ran a website that contained critical descriptions of the plaintiff’s facility, for defamation. The critical comments were included in a portion of the website that, according to the defendant, contained third-party complaints about the plaintiff. The defendant asserted a Section 230 defense, arguing that she had merely selected and summarized third-party material to make it more digestible for readers.However, the court did not find this argument persuasive. In its decision, the court pointed out that the defendant’s posts “do not lead a person to believe that she is quoting a third party. Rather, [she] has adopted the statements of others and used them to create her comments on the website.” The court implied that the lack of quotation marks or other signals that the comments were created by third parties supported the inference that the defendant had “adopted” the statements. The court also noted that she had “elicited” the third-party comments through surveys that she had conducted. Since the court treated the defendant as the author of the allegedly defamatory statements, it held that she was not entitled to protection under Section 230 for those statements.In a more recent ruling, the Seventh Circuit in <a href="http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D11-14/C:15-3049:J:Williams:aut:T:fnOp:N:1862727:S:0" target="_blank" rel="noopener">Huon v. Denton</a> similarly refused to immunize the defendant from liability for an allegedly defamatory comment posted on its website. The case involved a comment to a story published on Jezebel, a property owned by Gawker, that called the plaintiff a “rapist.” The plaintiff argued that Section 230 was inapplicable because “Gawker’s comments forum was not a mere passive conduit for disseminating defamatory statements.” Rather, the plaintiff claimed, Gawker itself was an information content provider because it “encouraged and invited” users to defame the plaintiff, through “urging the most defamation-prone commenters to post more comments and continue to escalate the dialogue,” editing and shaping the content of the comments, and selecting each comment for publication.Many prior cases have held that engaging in editorial activities such as these does not turn a website operator into a content developer for purposes of Section 230. But the court in Huon sidesteps these arguments, stating that “we need not wade into that debate” because the plaintiff had also alleged that Gawker employees may have anonymously authored comments to increase traffic to the website. Despite the fact that, as <a href="http://blog.ericgoldman.org/archives/2016/11/eric-goldman-3.htm" target="_blank" rel="noopener">one commentator</a> noted, there was no allegation that Gawker employees had written the specific allegedly defamatory comment at issue, the court held that these allegations of anonymous authorship by Gawker employees were sufficient to survive Gawker’s motion to dismiss.Avoidance of Section 230(c)(2) on TechnicalitiesSo far, this article has focused primarily on CDA Section 230(c)(1), which tends to see more action in the courts than its counterpart provision, CDA Section 230(c)(2). But there have also been recent cases that narrow the scope of Section 230(c)(2).Section 230(c)(2) states that no provider or user of an interactive computer service will be liable for its filtering decisions. Specifically, Section 230(c)(2)(A) protects website operators from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Arguably, plaintiffs have reasoned, Section 230(c)(2) does not apply to filtering decisions that are based on other objections.In <a href="https://casetext.com/case/song-fi-inc-v-google-inc" target="_blank" rel="noopener">Song Fi v. Google Inc.</a>, another case involving the removal of a video for allegedly inflated view counts that we <a href="https://www.sociallyawareblog.com/2016/03/22/currency/" target="_blank" rel="noopener">previously covered</a>, the plaintiff asserted claims for, among other things, breach of contract and breach of the implied covenant of good faith and fair dealing. The defendant, YouTube, raised a defense under Section 230(c)(2). However, the court interpreted the provision narrowly, and found that although videos with inflated view counts could be a problem for YouTube, they are not “otherwise objectionable” within the meaning of Section 230(c)(2)(A).As we wrote previously, the court concluded that, in light of the CDA’s history and purpose, the phrase “otherwise objectionable” relates to “potentially offensive material, not simply any materials undesirable to a content provider or user.” Further, the requirement that the service provider subjectively finds the blocked or screened material objectionable “does not mean anything or everything YouTube finds subjectively objectionable is within the scope of Section 230(c).” The court did not believe that YouTube’s removal of the video was “the kind of self-regulatory editing and screening that Congress intended to immunize in adopting Section 230(c).” Therefore, the court held that YouTube’s removal of videos with inflated view counts fell outside of the protections offered by Section 230(c)(2).Looking AheadSo where do these cases leave us? Unfortunately for website operators, and happily for plaintiffs, there seems to be a trend developing toward reining in the historically broad scope of Section 230 immunity. Of course, Section 230 still provides robust protection in many cases, and we have also seen <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">a few recent victories</a> for defendants asserting Section 230 defenses. Whatever happens, we will continue to monitor and provide updates on Section 230 as we enter the new year.*          *          *For other Socially Aware blog posts regarding the CDA Section 230 safe harbor, please see the following: <a href="https://www.sociallyawareblog.com/2016/12/05/manchanda-v-google/" target="_blank" rel="noopener">In a Rough Year for CDA Section 230, Manchanda v. Google Provides Comfort to Website Operators</a>; <a href="https://www.sociallyawareblog.com/2016/11/22/yelp-section-230-still-has-teeth/" target="_blank" rel="noopener">Yelp Case Shows CDA §230 Still Has Teeth</a>; <a href="https://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="https://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>.

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

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The Decline and Fall of Section 230?

2016 has been a tough year for a lot of reasons, most of which are outside the scope of this blog (though if you’d like to hear our thoughts about Bowie, Prince

The Decline and Fall of Section 230?

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

2016 has been a <a href="http://blog.ericgoldman.org/archives/2016/06/wtf-is-going-on-with-section-230-cross-v-facebook.htm" target="_blank" rel="noopener">challenging</a> year for Section 230 of the Communications Decency Act (CDA) and the website operators who depend on it for protection against liability stemming from user-generated content. An unusually large number of cases this year have resulted in decisions holding that the defendant website operators were not entitled to immunity under Section 230. For example, as we’ve discussed <a href="http://www.sociallyawareblog.com/2016/08/24/hassell/" target="_blank" rel="noopener">recently</a>, in Hassel v. Bird, 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.We are working on an article surveying some of the recent cases holding that Section 230 did not apply. But in the meantime, it is important to remember that Section 230 remains a powerful shield against liability and that defendants continue to wield it successfully in many cases. The Ninth Circuit’s recent decision in Kimzey v. Yelp is one such case.Kimzey arose from two negative Yelp reviews that user “Sarah K” posted in September 2011 about Douglas Kimzey’s locksmith business in the Seattle area. Sarah K’s reviews were extremely negative and rated Kimzey one out of five stars in Yelp’s multiple-choice star rating system. In all caps, she warned Yelpers that “THIS WAS BY FAR THE WORST EXPERIENCE I HAVE EVER ENCOUNTERED WITH A LOCKSMITH. DO NOT GO THROUGH THIS COMPANY . . . CALL THIS BUSINESS AT YOUR OWN RISK.”In response, Kimzey filed a pro se complaint in the U.S. District Court for the Western District of Washington alleging that Yelp should be held liable for publishing such “Libelous Per Se statement[s]” on its website. In an apparent attempt to plead around Section 230 and the immunity afforded to website operators for liability arising from user-generated content, Kimzey asserted two arguments.Kimzey’s first argument was that Yelp created the reviews itself, by copying them from another website and reposting them on Yelp’s website. The court made quick work of this theory, noting that “threadbare allegations of fabrication of statements are implausible on their face and are insufficient to avoid immunity under the CDA.” The court went on to observe that, “[w]ere it otherwise, CDA immunity could be avoided simply by reciting a common line that user-generated statements are not what they say they are” and that “it cannot be the case that the CDA and its purpose of promoting the free exchange of information and ideas over the Internet could be so casually eviscerated.”Kimzey’s second theory was that Yelp was responsible for Sarah K’s reviews because it “transformed” the reviews into its own advertisements or promotions and because Yelp served as an “author” of the one-star rating by “designing the star image and creating the color” of its star rating system. While it is well established that a website operator may lose Section 230 immunity if it makes a material contribution to the creation or development of the content at issue, here the court held that “neither of the allegedly creative actions taken by Yelp falls within [the court’s] interpretation of the terms ‘creation’ or ‘development’ of information.”Specifically, the court held that, because Yelp’s star rating system is based entirely on user input and merely “reduces this information into a single, aggregate metric,” the star ratings cannot be “anything other than user-generated data” within the scope of the Section 230 immunity. The court went on to characterize Yelp’s star rating system “as the kind of ‘neutral tool’ operating on ‘voluntary inputs’ that [the Ninth Circuit] determined did not amount to content development or creation” in the Roommates.com case. The court also cited <a href="https://en.wikipedia.org/wiki/Carafano_v._Metrosplash.com,_Inc." target="_blank" rel="noopener">Carafano v. Metrosplash</a> for the proposition that “the mere fact that an interactive computer service classifies user characteristics and collects responses to questions does not transform it into a developer of the underlying misinformation.” Given this analysis, the Ninth Circuit upheld the district court’s dismissal of Kimzey’s complaint based on Yelp’s immunity under Section 230.Kimzey represents a clean Section 230 victory for Yelp, of the kind that we took for granted before the spate of Section 230 wins for plaintiffs that we have seen this year. We will be watching closely to see how the Section 230 winds blow as we move into 2017.

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Yelp Case Shows CDA §230 Still Has Teeth

Yelp Case Shows CDA §230 Still Has Teeth

2016 has been a challenging year for Section 230 of the Communications Decency Act (CDA) and the website operators who depend on it for protection against liabi

A recent California court decision involving Section 230 of the Communications Decency Act (CDA) is creating considerable concern among social media companies and other website operators.As we’ve discussed in past blog posts, CDA <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Section 230</a> has played an essential role in the growth of the Internet by shielding website operators from defamation and other claims arising from content posted to their websites by others.Under Section 230, a website operator is not “treated as the publisher or speaker of any information provided” by a user of that website; as a result, online businesses such as Facebook, Twitter and YouTube have been able to thrive despite hosting user-generated content on their platforms that may be false, deceptive or malicious and that, absent Section 230, might subject these and other Internet companies to crippling lawsuits.Recently, however, the California Court of Appeal affirmed a lower court opinion that could significantly narrow the contours of Section 230 protection. After a law firm sued a former client for posting defamatory reviews on Yelp.com, the court not only ordered the former client to remove the reviews, but demanded that Yelp (which was not party to the dispute) remove these reviews.The case, Hassell v. Bird, began in 2013 when attorney Dawn Hassell sued former client Ava Bird regarding three negative reviews that Hassell claimed Bird had published on Yelp.com under different usernames. Hassell alleged that Bird had defamed her, and, after Bird failed to appear, the California trial court issued an order granting Hassell’s requested damages and injunctive relief.In particular, the court ordered Bird to remove the offending posts, but Hassell further requested that the court require Yelp to remove the posts because Bird had not appeared in the case herself. The court agreed, entering a default judgment and ordering Yelp to remove the offending posts. (The trial court also ordered that any subsequent comments associated with Bird’s alleged usernames be removed, which the Court of Appeal struck down as an impermissible prior restraint.) Yelp challenged the order on a variety of grounds, including under Section 230.The Court of Appeal held that the Section 230 safe harbor did not apply, and that Yelp could be forced to comply with the order. The court reasoned that the order requiring Yelp to remove the reviews did not impose any liability on Yelp; Yelp was not itself sued for defamation and had no damages exposure, so Yelp did not face liability as a speaker or publisher of third-party speech. Rather, citing California law that authorized a court to prevent the repetition of “statements that have been adjudged to be defamatory,” the court characterized the injunction as “simply” controlling “the perpetuation of judicially declared defamatory statements.” The court acknowledged that Yelp could face liability for failing to comply with the injunction, but that would be liability under the court’s contempt power, not liability as a speaker or publisher.The Hassell case represents a significant setback for social media companies, bloggers and other website operators who rely on the Section 230 safe harbor to shield themselves from the misconduct of their users. While courts have previously held that a website operator may be liable for “contribut[ing] materially to the alleged illegality of the conduct”—such as StubHub.com allegedly suggesting and encouraging illegally high ticket resale prices—here, in contrast, there is no claim that Yelp contributed to or aided in the creation or publication of the defamatory reviews, besides merely providing the platform on which such reviews were hosted.Of particular concern for online businesses is that Hassell appears to create an end-run around Section 230 for plaintiffs who seek to have allegedly defamatory or false user-generated content removed from a website—sue the suspected posting party and, if that party fails to appear, obtain a default judgment; with a default judgment in hand, seek a court order requiring the hosting website to remove the objectionable post, as the plaintiff was able to do in the Hassell case.Commentators have <a href="http://blog.ericgoldman.org/archives/2016/06/wtf-is-going-on-with-section-230-cross-v-facebook.htm" target="_blank" rel="noopener">observed</a> that Hassell is one of a growing number of recent decisions seeking to curtail the scope of Section 230. After two decades of expansive applications of Section 230, are we now on the verge of a judicial backlash against the law that has helped to fuel the remarkable success of the U.S. Internet industry? *          *          *For other Socially Aware blog posts regarding the CDA Section 230 safe harbor, please see the following: <a href="https://www.sociallyawareblog.com/2016/03/22/currency/" target="_blank" rel="noopener">How to Protect Your Company’s Social Media Currency</a>; <a href="https://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>; and <a href="https://www.sociallyawareblog.com/2012/04/26/a-dirty-job-thedirty-com-cases-show-the-limits-of-cda-section-230/" target="_blank" rel="noopener">A Dirty Job: TheDirty.com Cases Show the Limits of CDA Section 230</a>.

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Controversial California Court Decision Significantly Narrows a Crucial Liability Safe Harbor for Website Operators

Controversial California Court Decision Significantly Narrows a Crucial Liability Safe Harbor for Website Operators

A recent California court decision involving Section 230 of the Communications Decency Act (CDA) is creating considerable concern among social media companies a

Here’s how <a href="http://www.theverge.com/2016/5/16/11686112/twitter-140-character-count-limit-change-link-photo" target="_blank" rel="noopener">Twitter is loosening up its 140-character limit</a>.The federal government will now check the social media history of prospective employees before granting them security clearance.One expert says C-level executives <a href="http://fortune.com/2016/05/16/hearsay-social-ceos-social-media/" target="_blank" rel="noopener">shouldn’t entrust millennials with their companies’ social media</a> feeds.Federal court <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2201&context=historical" target="_blank" rel="noopener">refuses to dismiss a lawsuit against Google</a> for allegedly removing sites from its search engine results.Before a larceny arrest, a <a href="http://www.nytimes.com/2016/05/16/nyregion/before-a-larceny-arrest-a-cry-for-help-on-facebook.html?smprod=nytcore-iphone&smid=nytcore-iphone-share" target="_blank" rel="noopener">“cry for help” on Facebook</a>.Do strong <a href="http://adcontrarian.blogspot.com/2016/05/does-content-build-brands.html" target="_blank" rel="noopener">social media campaigns really beget successful brands</a>, or is it the other way around?A lawyer representing students suing Google is questioning the impartiality of the federal judge hearing the case because the judge was just hired by <a href="http://fortune.com/2016/05/19/gmail-scanning-grewal/" target="_blank" rel="noopener">this unrelated tech giant</a>.The New York Times live streamed one of its pitch meetings on Facebook Live, and not everyone thinks it was a great idea.Some social media marketing satire, courtesy of The Onion.

Social Links—Twitter loosens up; case against Google stands; should millennials be in charge of big social media campaigns?

Here’s how Twitter is loosening up its 140-character limit. The federal government will now check the social media history of prospective employees before grant

Social Links—Twitter loosens up; case against Google stands; should millennials be in charge of big social media campaigns?

Today’s companies compete not only for dollars but also for likes, followers, views, tweets, comments and shares. “Social currency,” as <a href="http://vivaldipartners.com/vpsocialcurrency/about" target="_blank" rel="noopener">some researchers call it</a>, is becoming increasingly important and companies are <a href="http://www.bizjournals.com/triangle/news/2015/02/18/duke-fuqua-business-cmo-survey-social-media-budget.html" target="_blank" rel="noopener">investing heavily</a> in building their social media fan bases. In some cases, this commitment of time, money and resources has resulted in staggering success. Coca-Cola, for example, has <a href="https://www.facebook.com/cocacola" target="_blank" rel="noopener">amassed over 96 million likes</a> on its Facebook page and LEGO’s YouTube videos have been <a href="https://www.youtube.com/user/LEGO/about" target="_blank" rel="noopener">played over 2 billion times</a>.With such impressive statistics, there is no question that a company’s social media presence and the associated pages and profiles can be highly valuable business assets, providing an important means for disseminating content and connecting with customers. But how much control does a company really have over these social media assets? What recourse would be available if a social media platform decided to delete a company’s page or migrate its fans to another page?The answer may be not very much. Over the past few years, courts have repeatedly found in favor of social media platforms in a number of cases challenging the platforms’ ability to delete or suspend accounts and to remove or relocate user content.Legal Show-Downs on Social Media Take-DownsIn a recent California case, <a href="http://www.bloomberglaw.com/public/desktop/document/Lewis_v_YouTube_LLC_No_H041127_2015_BL_428281_Cal_App_6th_Dist_De?1456536437" target="_blank" rel="noopener">Lewis v. YouTube, LLC</a>, the plaintiff Jan Lewis’s account was removed by YouTube due to allegations that she artificially inflated view counts in violation of YouTube’s Terms of Service. YouTube eventually restored Lewis’s account and videos but not the view counts or comments that her videos had generated prior to the account’s suspension.Lewis sued YouTube for breach of contract, alleging that YouTube had deprived her of her reasonable expectations under the Terms of Service that her channel would be maintained and would continue to reflect the same number of views and comments. She sought damages as well as specific performance to compel YouTube to restore her account to its original condition.The court first held that Lewis could not show damages due to the fact that the YouTube Terms of Service contained a limitation of liability provision that disclaimed liability for any omissions relating to content. The court also held that Lewis was not entitled to specific performance because there was nothing in the Terms of Service that required YouTube to maintain particular content or to display view counts or comments. Accordingly, the court affirmed dismissal of Lewis’s complaint.In a similar case, <a href="https://docs.justia.com/cases/federal/district-courts/california/candce/5:2015cv03221/289340/27" target="_blank" rel="noopener">Darnaa LLC v. Google, Inc.</a>, Darnaa, a singer, posted a music video on YouTube. Again, due to allegations of view count inflation, YouTube removed and relocated the video to a different URL, disclosing on the original page that the video had been removed for violating its Terms of Service. Darnaa sued for breach of the covenant of good faith and fair dealing, interference with prospective economic advantage and defamation. In an email submitted with the complaint, Darnaa’s agent explained that she had launched several large campaigns (each costing $250,000 to $300,000) to promote the video and that the original link was already embedded in thousands of websites and blogs. Darnaa sought damages as well as an injunction to prevent YouTube from removing the video or changing its URL.The court dismissed all of Darnaa’s claims because YouTube’s Terms of Service require lawsuits to be filed within one year and Darnaa had filed her case too late. In its discussion, however, the court made several interesting points. In considering whether YouTube’s Terms of Service were unconscionable, the court held that, although the terms are by nature a “contract of adhesion,” the level of procedural unconscionability was slight, since the plaintiff could have publicized her videos on a different website. Further, in ruling that the terms were not substantively unconscionable, the court pointed out that “[b]ecause YouTube offers its hosting services free of charge, it is reasonable for YouTube to retain broad discretion over [its] services.”Although the court ultimately dismissed Darnaa’s claims based on the failure to timely file the suit, the decision was not a complete victory for YouTube. The court granted leave to amend to give Darnaa the opportunity to plead facts showing that she was entitled to equitable tolling of the contractual limitations period. Therefore, the court went on to consider whether Darnaa’s allegations were sufficient to state a claim. Among other things, the court held that YouTube’s Terms of Service were ambiguous regarding the platform’s rights to remove and relocate user videos in its sole discretion. Thus, the court further held that if Darnaa were able to amend the complaint to avoid the consequences of the failure to timely file, then the complaint would be sufficient to state a claim for breach of the contractual covenant of good faith and fair dealing.By contrast, the court found no such ambiguity in <a href="https://casetext.com/case/song-fi-inc-v-google-inc" target="_blank" rel="noopener">Song Fi v. Google Inc.</a>, a case with facts similar to those in Darnaa. In Song Fi, the plaintiff asserted claims for, among other things, breach of contract and breach of the implied covenant of good faith and fair dealing. YouTube raised a defense under the <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">Communications Decency Act (CDA) Section 230(c)(2)(A)</a> which states that no provider of an interactive computer service is liable for removing content that it considers to be obscene, violent, harassing or “otherwise objectionable.”The Song Fi court, interpreting this provision narrowly, found that although videos with inflated view counts could be a problem for YouTube, they are not “otherwise objectionable” within the meaning of Section 230(c)(2)(A), and thus YouTube did not have immunity under that provision. Specifically, the court concluded that, in light of the CDA’s history and purpose, the phrase “otherwise objectionable” relates to “potentially offensive material, not simply any materials undesirable to a content provider or user.” Further, the requirement that the service provider subjectively finds the blocked or screened material objectionable “does not mean anything or everything YouTube finds subjectively objectionable is within the scope of Section 230(c).” Therefore, the court held that videos with inflated view counts fell outside the statutory safe harbor granted by Section 230(c)(2).Despite finding Section 230(c)(2) inapplicable, the court ultimately dismissed all of Song Fi’s claims. Notably, the court dismissed the contract-based claims with prejudice, holding that, although YouTube’s Terms of Service were “inartfully drafted,” they “unambiguously” reserved to the right for YouTube to remove content in its sole discretion and to discontinue any aspect of its service without liability. Therefore, the court held, the Terms of Service “unambiguously foreclose[d]” Song Fi’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing.Facebook had more luck than did Google in asserting a CDA Section 230 defense in <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2089&context=historical" target="_blank" rel="noopener">Sikhs For Justice “SFJ”, Inc. v. Facebook, Inc.</a>, a case brought by a human rights group advocating for Sikh independence in the Indian state of Punjab. Sikhs for Justice (SFJ) alleged that Facebook had blocked its page in India at the behest of the Indian government. SFJ sued in the Northern District of California, asserting several causes of action including race discrimination, and sought damages and injunctive relief.The Sikhs for Justice court ruled in favor of Facebook, citing CDA Section 230(c)(1), which states that “no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  Based on this statutory language, Section 230(c)(1) has been interpreted to provide a broad immunity for website operators against liability arising from user generated content. In dismissing the suit, the Sikhs for Justice court explained that the content at issue was provided by SFJ, not by Facebook, and that Facebook’s refusal to publish the SFJ page in India was “clearly publisher conduct” that is immunized by Section 230(c)(1).Notably, the court did not mention the Section 230(c)(2) safe harbor for blocking user content, which YouTube had asserted in SongFi as discussed above. <a href="http://blog.ericgoldman.org/archives/2015/11/facebook-can-legally-block-pages-without-any-explanation-sikhs-for-justice-v-facebook-forbes-cross-post.htm" target="_blank" rel="noopener">According to some commentators, </a> the Sikhs for Justice court’s failure to discuss Section 230(c)(2) “highlights its weakness as a safe harbor.”In another case against Facebook, <a href="http://blog.ericgoldman.org/archives/2010/11/facebook_not_li_2.htm" target="_blank" rel="noopener">Young v. Facebook, Inc.</a>, the plaintiff, Karen Beth Young, found herself suddenly banned from Facebook after sending friend requests to strangers. She sued for breach of the implied covenant of good faith and fair dealing as well as several other claims. In contrast to some of the cases discussed above, the Young court found that “it is at least conceivable that arbitrary or bad faith termination of user accounts … with no explanation at all could implicate the implied covenant of good faith and fair dealing,” particularly since Facebook had provided in its Statement of Rights and Responsibilities that users’ accounts should not be terminated for reasons other than those described in the Statement. Nonetheless, the court dismissed Young’s suit because her complaint did not sufficiently allege that the account termination was undertaken in bad faith or violated Facebook’s contractual obligations.The cases above illustrate how difficult it is for social media users to object to deletion or suspension of accounts or to removal or relocation of content based on a platform’s contractual obligations under the applicable terms of service. Users have met with similar obstacles in asserting a property right in social media content.For example, <a href="https://www.docketalarm.com/cases/Florida_Southern_District_Court/0--13-cv-61582/Mattocks_v._Black_Entertainment_Television_LLC/101/" target="_blank" rel="noopener">Mattocks v. Black Entertainment Television LLC</a> (which we have <a href="http://www.sociallyawareblog.com/2014/11/04/whats-in-a-like/" target="_blank" rel="noopener">discussed previously</a>) involved a dispute between BET and Stacey Mattocks, whom BET had hired to help manage the unofficial Facebook fan page for one of its shows. When Mattocks restricted BET’s access to the fan page, BET asked Facebook to “migrate” the fans to another official page that BET had created and Facebook granted the request. Mattocks sued BET for conversion of her business interest in the Facebook fan page. The court, holding that Mattocks failed to establish that she owned a property interest in the page’s likes, granted BET’s motion for summary judgment. “If anyone can be deemed to own the ‘likes’ on a Facebook page,” the court stated, “it is the individual users responsible for them.” While the Mattocks case did not directly target the social media platform itself, it does demonstrate how difficult it can be for a plaintiff to challenge social media platforms’ decisions to remove or relocate content based on purported ownership of that content.Safeguarding Your Social Media CurrencyUltimately, the cases discussed above show that social media platforms have significant control over what is (or isn’t) published on their websites, regardless of the amount of time and effort that users have spent building up their individual pages and profiles. With all of this in mind, what can individuals and companies do to protect their social media currency? How can you help ensure that your hard-earned fans, likes, comments and views do not suddenly disappear?A good tip is to read the applicable terms of service carefully to understand the platform’s rules and the reasons for which a platform may delete or suspend accounts or remove or relocate content. Make sure to comply with the platform’s rules, including those regarding contests, collection and use of user information and content guidelines. Users should err on the side of caution, and avoid posting anything that could be deemed offensive or obscene or that might infringe upon other parties’ intellectual property rights. And it goes without saying that users should avoid fraudulent practices, such as artificially driving up view counts or posting fake comments.Most of all, businesses and individuals should keep in mind that social media platforms have broad discretion when it comes to decisions about what to publish and where. As such, consider spreading your company’s social media marketing efforts across a number of different platforms to minimize the impact of sudden content removals or relocations on any one platform. At the end of the day, every social media account—even those with millions of likes or views—is controlled not by the user that created the account but by the platform that hosts it.

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How to Protect Your Company’s Social Media Currency

How to Protect Your Company’s Social Media Currency

Today’s companies compete not only for dollars but also for likes, followers, views, tweets, comments and shares. “Social currency,” as some researchers call it

Positive I.D. The tech world recently took a giant step forward in the quest to create computers that accurately mimic human sensory and thought processes, thanks to Fei-Fei Li and Andrej Karpathy of the Stanford Artificial Intelligence Laboratory. The pair developed a program that identifies not just the subjects of a photo, but the action taking place in the image. Called NeuralTalk, the software captioned a picture of a man in a black shirt playing guitar, for example, as “man in black shirt is playing guitar,” according to <a href="http://www.theverge.com/2015/7/17/8985699/stanford-neural-networks-image-recognition-google-study" target="_blank" rel="noopener">The Verge</a>. The program isn’t perfect, the publication reports, but it’s often correct and is sometimes “unnervingly accurate.” Potential applications for artificial “neural networks” like Li’s obviously include giving users the ability to search, using natural language, through image repositories both public and private (think “photo of Bobby getting his diploma at Yale.”). But the technology could also be used in potentially life-saving ways, such as in cars that can warn drivers of potential hazards like potholes. And, of course, <a href="http://www.socialmediatoday.com/technology-data/aweiner/2015-07-17/computers-can-recognize-your-face-and-soon-theyll-know-what-youre" target="_blank" rel="noopener">such neural networks would be incredibly valuable to marketers</a>, allowing them to identify potential consumers of, say, sports equipment by searching through photos posted to social media for people using products in that category. As we discussed in a <a href="https://www.sociallyawareblog.com/2015/07/07/toward-a-grand-unifying-theory-of-todays-tech-trends/" target="_blank" rel="noopener">recent blog post</a>, the explosive of growth of the Internet of Things, wearables, big data analytics and other hot new technologies is being fueled at least in part by marketing uses—are artificial neural networks the next big thing to be embraced by marketers?Cruel intentions. Laws seeking to regulate speech on the Internet must be narrowly drafted to avoid running afoul of the First Amendment, and <a href="http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=3481&context=wmlr" target="_blank" rel="noopener">limiting such a law’s applicability to intentional attempts to cause damage</a> usually improves the law’s odds of meeting that requirement. Illustrating the importance of intent in free speech cases, an <a href="https://www.sociallyawareblog.com/2015/07/22/status-updates-cas-anti-revenge-porn-law-scrapped-civil-rights-claim-against-blogging-prosecutor-dismissed-match-buys-plentyoffish/" target="_blank" rel="noopener">anti-revenge-porn law in Arizona was recently scrapped</a>, in part because it applied to people who posted nude photos to the Internet irrespective of the poster’s intent. Now, a North Carolina Court of Appeals has held that an anti-cyberbullying law is constitutional because it, among other things, only prohibits posts to online networks that are made with “the intent to intimidate or torment a minor.” The court issued the holding in a lawsuit brought by a 19-year-old who was placed on 48 months’ probation and ordered stay off social media websites for a year for having contributed to abusive social media posts that targeted one of his classmates. The teen’s suit alleged that the law he was convicted of violating, <a href="http://nccriminallaw.sog.unc.edu/cyberbullying/" target="_blank" rel="noopener">N.C. Gen. Stat. §14-458.1</a>, is overbroad and unconstitutional. Upholding his conviction, the North Carolina Court of Appeals held, “It was not the content of Defendant’s Facebook comments that led to his conviction of cyberbullying. Rather, his specific intent to use those comments and the Internet as instrumentalities to intimidate or torment (a student) resulted in a jury finding him guilty under the Cyberbullying Statute.”A dish best served cold. Restaurants and other service providers are often without effective legal recourse against Yelp and other “user review” websites when they’re faced with negative—even defamatory—online reviews because Section 230 of the Communications Decency Act (CDA)—<a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener">47 U.S. Code § 230</a>—<a href="https://www.sociallyawareblog.com/2012/04/26/a-dirty-job-thedirty-com-cases-show-the-limits-of-cda-section-230/" target="_blank" rel="noopener">insulates website operators from liability</a> for content created by users (though there are, of course, <a href="https://www.sociallyawareblog.com/2012/04/26/a-dirty-job-thedirty-com-cases-show-the-limits-of-cda-section-230/" target="_blank" rel="noopener">exceptions</a>). That didn’t stop the owner of KC’s Rib Shack in Manchester, New Hampshire, from exacting revenge, however, when an attendee of a 20-person birthday celebration at his restaurant <a href="http://www.grubstreet.com/2015/07/yelp-review-response-karaoke.html?mid=facebook_nymag" target="_blank" rel="noopener">wrote a scathing review on Yelp and Facebook</a> admonishing the owner for approaching the party’s table “and very RUDELY [telling the diners] to keep quiet [since] others were trying to eat.” The review included “#boycott” and some expletives. In response, the restaurant’s owner, Kevin Cornish, replied to the self-identified disgruntled diner’s rant with <a href="https://www.facebook.com/kcsribshack/posts/10152981907933517" target="_blank" rel="noopener">his own review</a>—of her singing. Cornish reminded the review writer that his establishment is “a family restaurant, not a bar,” and wrote, “I realize you felt as though everybody in the entire restaurant was rejoicing in the painful rendition of Bohemian Rhapsody you and your self-entitled friends were performing, yet that was not the case.” He encouraged her to continue her “social media crusade,” including the hashtag #IDon’t NeedInconsiderateCustomers. Cornish’s retort has so far garnered close to 4,000 Facebook likes and has been shared on Facebook more than 400 times.

Status Updates: Appeals court upholds anti-cyberbullying law; better marketing through neural networks; restaurant owner turns the tables on Yelp critic

Positive I.D. The tech world recently took a giant step forward in the quest to create computers that accurately mimic human sensory and thought processes, than

Status Updates: Appeals court upholds anti-cyberbullying law; better marketing through neural networks; restaurant owner turns the tables on Yelp critic

In 2012, we reported on a pair of district court decisions that, based on similar facts, split on whether defendant TheDirty.com, a gossip website, qualified for immunity under Section 230 of the Communications Decency Act (CDA), the 1996 law that states “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Courts have generally held that Section 230 precludes defamation suits against website operators for content that their users create and post.TheDirty.com—which claims 22 million monthly unique visitors—invites users to “submit dirt” about themselves or others via a submission form requesting the basics of the “dirt,” with fields for “what’s happening” and “who, what, when, where, why,” and a link for users to upload photographs. Website operator Nik Richie then reposts the content, sometimes adding his own comments. Unsurprisingly, unhappy subjects of the gossip postings have sued Richie and his company on numerous occasions.In one case, Jones v. Dirty World Entertainment Recordings, LLC in the Eastern District of Kentucky, former teacher and Cincinnati Bengals cheerleader Sarah Jones brought defamation and other state law claims related to two posts showing her photo and stating that she had sex with players and contracted sexually transmitted diseases. In 2011, Richie moved for judgment as a matter of law on grounds that Section 230 gave him immunity as the “provider of an interactive computer service” because, he argued, the defamatory content originated with a user of the site and not Richie, though he had added his own comments. The court denied the motion, citing “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” as leading to its conclusion that Richie “specifically encouraged development of what is offensive about the content” and thereby lost immunity under Section 230. The court noted that Richie made comments addressed directly to Jones, including that he “love[d] how the Dirty Army [Richie’s term for the site’s users] ha[d] a war mentality,” a comment that the court held encouraged the posting of offensive content.After a mistrial in February 2013, Richie moved for summary judgment, asking the court to reconsider its ruling that he failed to qualify for CDA immunity. He noted that “since the CDA was first enacted in 1996, there have been approximately 300 reported decisions addressing immunity claims” (a statistic set forth in <a href="http://jolt.law.harvard.edu/digest/hill-v-stubhub">Hill v. Stubhub</a>) but that his was the only one ever to go to trial, even though, Richie argued, other cases involved worse facts and clearer damage to the plaintiff. Richie also discussed in detail the Western District of Missouri opinion we reported on last year that granted summary judgment to Richie on CDA immunity grounds, explicitly disagreeing with the Jones court’s initial ruling. The court was not convinced, denying the motion simply “for the reasons set forth in the Court’s previous opinion.”The case went to trial on July 8, 2013. The jury deliberated for more than ten hours and homed in on the key issue: in a note to the judge, the jury “request[ed] the evidence presented to the court detailing screenshots of how one submits a post to website TheDirty.com.” The jury, it seems, was asking for information to help it consider whether Richie and the site “encouraged the development of what is offensive”—the standard in the Sixth Circuit, of which the Eastern District of Kentucky is a part—about the ensuing posts about Jones. The jury awarded Jones $38,000 in actual damages and $300,000 in punitive damages.Search Engine Watch, a respected analyst of the Internet industry, predicts that “[t]he success of this lawsuit is going to open a flood of new lawsuits against The Dirty and other sites like it that host third-party content” and noted that the case was good for the online reputation management industry—companies that provide services for individuals to manage what is said about them online—because the threat of suit would make website operators more responsive to requests to remove user-generated content.From the courthouse steps, a tearful Jones said the jury got it right, and Richie’s attorney promised an immediate appeal. A few days later, Richie filed his appeal to the Sixth Circuit. We will keep you posted on the result.

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TheDirty.com Goes to Trial

TheDirty.com Goes to Trial