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 this second installment of our six-part series examining Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from the publication and filtering of content created by their users or other third parties, we’ll examine some of the most significant cases that interpreted and applied the statute in the fifteen (or so) years following its enactment.These cases show a general trend of courts interpreting the statutory language broadly: rejecting any distinction between publisher and distributor liability for purposes of the Section 230 safe harbor, giving wide latitude to the types of platforms that qualify as “interactive computer services” and to who counts as a “provider or user” of such services, and clarifying that Section 230 immunity is not limited to defamation claims but rather extends to any claim or cause of action that treats the defendant as a “publisher or speaker” of third-party information.But some of these early cases also imposed limits on the broad scope of Section 230 and planted the analytical seeds that would eventually lead to the more recent trend of cases interpreting the statute less expansively, which we will cover in our third installment of this series.Due to length, we are publishing this second installment in two parts, so please keep an eye out for part two tomorrow.If you want to catch up on the origins and prehistory of Section 230, you can read our first installment <a href="https://www.sociallyawareblog.com/topics/part-1-section-230-27-years-old-and-still-in-the-spotlight" target="_self" dir="ltr">here</a>.A Landmark Case That Established the Broad Parameters of the Section 230 Safe HarborThe first major case to interpret Section 230 following its enactment in 1996 was <a href="https://firstamendment.mtsu.edu/article/zeran-v-america-online-inc-4th-cir-1997/">Zeran v. AOL</a> in 1997. In Zeran, an anonymous post on an AOL bulletin board advertised the sale of t-shirts with slogans glorifying the <a href="https://en.wikipedia.org/wiki/Oklahoma_City_bombing" target="_blank" dir="ltr">Oklahoma City bombing</a> (for those too young to remember, this was the domestic terrorist truck bombing of a federal office building in Oklahoma City that killed 168 people, including many children in a day care center). The t-shirts displayed highly offensive slogans such as “Finally a day care center that keeps the kids quiet ‒ Oklahoma 1995.”The post instructed readers to contact plaintiff Kenneth Zeran and listed his home phone number. Zeran, in fact, had nothing to do with the post and apparently was randomly targeted for this prank. Zeran began receiving threatening calls. AOL removed the post at Zeran’s request, but similar posts appeared. Less than a week after the initial post, Zeran was receiving threatening calls every two minutes and his house was put under protective surveillance.Zeran sued AOL, alleging that it was negligent in failing to adequately respond to the fake posts after becoming aware that they were fraudulent. AOL argued that it was protected by Section 230. Citing CompuServe and Prodigy (as discussed in <a href="https://www.sociallyawareblog.com/topics/part-1-section-230-27-years-old-and-still-in-the-spotlight" target="_self">Part 1</a>), Zeran argued that AOL was a distributor of information (like a bookstore), rather than a publisher (like a newspaper), and thus was not protected by Section 230. As readers will recall from Part 1, Section 230 immunizes platforms from being treated as a “publisher or speaker” of third-party content, but the statute does not expressly address liability for distributing such content.The court rejected this distinction between distributors and publishers, holding that Section 230 provided immunity for both the distribution and publication of content, and that AOL was therefore immune from liability for the third-party bulletin board posts. Today, more than 25 years later, the court’s holding in Zeran has never been rejected in a precedential opinion and has been adopted by every federal circuit court that has considered it. It’s not an overstatement to say that, at least from a legal point of view, the Fourth Circuit’s broad interpretation of Section 230 in this case was instrumental to the development of the commercial Internet in its early days.For many years following Zeran, the general trend in the cases was to interpret Section 230 broadly and apply the safe harbor to a wide variety of defendants in an equally wide variety of circumstances.Immunity for AOL in a Defamation Suit: Under Section 230, Online Is DifferentIn <a href="https://www.eff.org/files/blumenthal-v-drudge.pdf" target="_blank" dir="ltr">Blumenthal v. Drudge</a>, a 1998 case in the District Court for the District of Columbia, Sidney Blumenthal, then an adviser to President Bill Clinton, and his wife Jacqueline Blumenthal sued Matt Drudge and AOL for defamation and libel, based on Drudge’s article describing Blumenthal’s alleged history of spousal abuse. The article appeared in the Drudge Report, Drudge’s eponymous news commentary and political gossip site, and was also published on AOL pursuant to a licensing arrangement between AOL and Drudge.Immediately after the Blumenthals filed the claim, Drudge issued a retraction and public apology, but the Blumenthals proceeded with the suit. The court granted summary judgment to AOL, holding that it was immune from liability under Section 230. The court interpreted the statute broadly and held that AOL was not a publisher or speaker of Drudge’s article, even though it paid him and promoted his column on its website (this aspect of the court’s analysis has been <a href="https://cyber.harvard.edu/columbia/masur.pdf" target="_blank" dir="ltr">criticized</a>).The court noted that, “[i]n recognition of the speed with which information may be disseminated and the near impossibility of regulating information content, Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others.” As in Zeran, the court also rejected the Blumenthal’s argument that AOL should be held liable as a distributor, since Section 230 made no distinction between publishers and distributors.Blumenthal thus demonstrates that, from the beginning, courts have recognized that Section 230 represented a radical break from traditional defamation law: under Section 230, online really is different.Ninth Circuit Holds that Section 230 Immunity Applies to Publication of an Allegedly Defamatory EmailIn 2003, the Ninth Circuit held in <a href="https://www.eff.org/files/batzel-v-smith.pdf" target="_blank" dir="ltr">Batzel v. Smith</a> that Section 230 immunity extended to a museum administrator who selected, edited, and published on the museum’s Listserv and website an email he had received claiming that plaintiff Ellen Batzel possessed paintings looted by the Nazis during WWII.The case arose after Robert Smith, a handyman who was working for Batzel, sent an email to Ton Cremers, the director of Amsterdam’s famous Rijksmuseum, in which Smith accused Batzel of owning art stolen by the Nazis and being a descendant of Heinrich Himmler. After making a few minor editorial adjustments to Smith’s email, Cremers sent it to the museum’s email distribution list and published it on the website without Smith’s consent or knowledge. Batzel learned of the email and contacted Cremers, who in turn contacted Smith for clarification. Smith asserted that his claims were correct but said he never would have sent the email had he known it was going to be published. Batzel claimed her reputation had been injured by the publication and sued Smith, Cremers, and the Netherlands Museum Association (and other related parties).The court first examined whether the museum Listserv and website qualified as “provider[s] or user[s] of an interactive computer service” for purposes of Section 230. The Ninth Circuit interpreted the statutory language broadly to include the Listserv and website, rejecting the district court’s conclusion that only services that provide access to the Internet as a whole qualify as interactive computer services. The court also noted that, regardless of whether the Listserv and website were themselves interactive computer services, Section 230 covers not only providers but also users of interactive computer services, and there was no dispute that the museum network “uses interactive computer services to distribute its on-line mailing and to post the listserv on its website.”The court then went on to consider whether the email as published by Cremers constituted information “provided by another information content provider” under Section 230, and “whether Smith was the sole content provider of his e-mail, or whether Cremers can also be considered to have ‘creat[ed]’ or ‘develop[ed]’ Smith’s e-mail message forwarded to the listserv.” The court determined that Cremers’ minor edits to the email did not rise to the level of “development,” nor did the fact that Cremers chose to forward the email to the Listserv undermine Section 230 immunity: “the exclusion of ‘publisher’ liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published while retaining its basic form and message.”Interestingly, the court’s analysis did not end there, due to the fact that Smith claimed he never intended his email to be published. The court noted that “[t]he question thus becomes whether Smith can be said to have ‘provided’ his e-mail in the sense intended” by Section 230’s reference to information “provided by” another information content provider. If Smith never intended his email to be published on the Internet, then Cremers’ decision to forward it to the Listserv would be analogous to clipping an article from a magazine and publishing it online. That is not what Section 230 was intended to cover.Ultimately, the court determined that Section 230 immunity applies if a provider or user of an online platform reasonably believed under the circumstances that a third party provided the material at issue for publication on the Internet. The court remanded this issue to the district court.Ninth Circuit Holds that Section 230 Provides Immunity for Fake Dating ProfileIn <a href="https://www.eff.org/files/carafano-v-metrosplash.pdf" target="_blank">Carafano v. Metrosplash</a>, a Ninth Circuit case from 2003, a man in Berlin, Germany created a fake profile on Matchmaker.com, masquerading as actress Christianne Carafano (whose stage name is Chase Masterson). The imposter also included Carafano’s home address and telephone number. Matchmaker.com initially refused to remove the profile even after Masterson had received threatening and sexually explicit voicemail messages and a fax, but did eventually remove the profile. Carafano sued the company in California for defamation, misappropriation of the right of publicity, invasion of privacy, and negligence.The district court rejected Matchmaker.com’s Section 230 defense due to the fact that the site’s profile creation process required users to answer a lengthy questionnaire. The district court determined that this made Matchmaker.com partly responsible for the content of the fake profile and, therefore, an “information content provider” in Section 230 terms. The Ninth Circuit reversed the district court and held that Matchmaker.com was entitled to Section 230 immunity as an interactive service provider, and was not an information content provider with respect to the fake profile, notwithstanding the questionnaire.In its opinion, the court stated:<blockquote dir="ltr">Under § 230(c), therefore, so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process…. The fact that some of the content was formulated in response to Matchmaker’s questionnaire does not alter this conclusion. Doubtless, the questionnaire facilitated the expression of information by individual users. However, the selection of the content was left exclusively to the user. The actual profile “information” consisted of the particular options chosen and the additional essay answers provided. Matchmaker was not responsible, even in part, for associating certain multiple choice responses with a set of physical characteristics, a group of essay answers, and a photograph. Matchmaker cannot be considered an “information content provider” under the statute because no profile has any content until a user actively creates it.</blockquote>California Supreme Court Addresses Publisher/Distributor Distinction as well as Application of Section 230 to UsersThe 2006 California Supreme Court case, <a href="https://www.eff.org/files/barrett-v-rosenthal.pdf" target="_blank" dir="ltr">Barrett v. Rosenthal</a>, addressed two important issues: first, whether Section 230 confers immunity with respect to both publisher and distributor liability (i.e., the same question at issue in Zeran as discussed above); and second, how Section 230 applies to users (as distinct from providers) of online platforms.The case arose from allegedly defamatory statements contained in a letter written by Tim Bolen, a publicist for alternative medicine practitioners including the late Hulda Clark. Bolen’s letter attacked plaintiffs Stephen Barrett and Terry Polevoy, two physicians who operated websites devoted to exposing health frauds. Defendant Ilena Rosenthal reposted Bolen’s letter on two alternative medicine newsgroup sites. The plaintiffs sued, alleging that Rosenthal committed libel by maliciously distributing defamatory statements impugning their character and competence, and disparaging their efforts to combat fraud, even after the plaintiffs had notified Rosenthal that the statements were false and defamatory.The trial court dismissed the defamation claims against Rosenthal, but the California Court of Appeal reversed, holding that Section 230 immunized only publishers, not distributors, of defamatory information. The California Supreme Court then reversed the Court of Appeal, citing Zeran for the proposition that “the publisher/distributor distinction makes no difference for purposes of section 230 immunity” and that “[s]ubjecting service providers to notice liability would defeat ‘the dual purposes’ of section 230, by encouraging providers to restrict speech and abstain from self-regulation.”Barrett also addressed the fact that Rosenthal was a user of the newsgroup sites where she posted Bolen’s letter, rather than the operator of those sites. Although the defendants in most Section 230 cases are platform operators rather than platform users, Section 230(c)(1) says that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (emphasis added).The court in Barrett noted that “user” is not defined in the statute, and that users such as Rosenthal “are situated differently from institutional service providers with regard to some of the principal policy considerations” that underlie Section 230. Among other things, “individuals do not face the massive volume of third-party postings that providers encounter, [so] [s]elf-regulation is a far less challenging enterprise for them,” and “[u]sers are more likely than service providers to actively engage in malicious propagation of defamatory or other offensive material.”Nonetheless, the court concluded that “[t]he standard rules of statutory construction . . . yield an unambiguous result,” namely that “‘[u]ser’ plainly refers to someone who uses something, and the statutory context makes it clear that Congress simply meant someone who uses an interactive computer service.” Because Rosenthal used the Internet to gain access to newsgroups where she posted Bolen’s allegedly defamatory letter, the court held she was a “user” under Section 230 and entitled to the benefit of the safe harbor. The court also held that, for purposes of Section 230, there was no distinction between “active” and “passive” users, and that “[b]y declaring that no ‘user’ may be treated as a ‘publisher’ of third party content, Congress has comprehensively immunized republication by individual Internet users.”

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

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











Anthony Ramirez

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

In this second installment of our six-part series examining Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from the publication and filtering of content created by their users or other third parties, we’ll examine some of the most significant cases that interpreted and applied the statute in the fifteen (or so) years following its enactment.

PART 2(a) – Section 230: 27 Years Old and Still in the Spotlight

Here at Socially Aware we talk a lot about Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes social media platforms and other online service providers from liability stemming from content created by their users or other third parties. Sometimes referred to as “the 26 words that changed the Internet” and often discussed as one of the <a href="https://www.theatlantic.com/business/archive/2013/09/the-law-that-gave-us-the-modern-internet-and-the-campaign-to-kill-it/279588/" target="_blank" dir="ltr">most important pieces of Internet law</a>, Section 230(c)(1) states “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.”Put another way, when online platforms publish content posted by their users, the platforms are exempt from liability arising from that content if they meet the requirements for the Section 230 safe harbor. For example, if a TikTok user posts a defamatory video about another person, that user may be liable for defamation, but Section 230 will generally provide immunity for TikTok.Section 230 has generated significant controversy in recent years and again is making headlines, especially with the intense focus on generative AI and its potential consequences – both positive and negative – for individuals, businesses, governments, and society at large.  This summer, we’re launching a four-part series that will look at the origins of Section 230, examine some of the seminal cases that have interpreted and applied the statute, and explore the numerous legislative and judicial efforts to limit the scope of the law.Section 230: OriginsImagine if TikTok or YouTube were potentially liable for every item of content posted by their users. It would be hard to imagine social media or the Internet as we currently know it existing if that were the case. But that is where we were in the early days of the Internet, based on some early case law that we discuss below. Before getting into the cases, however, it will be helpful to understand how defamation liability for third-party content typically works. Generally speaking, the threshold question is whether the party disseminating that third-party content can exercise editorial discretion in doing so.First, consider the example of a common carrier such as a telephone company or FedEx. When these companies are acting as common carriers, they are generally not liable for the third-party content that they disseminate. They cannot not disseminate the content, after all.By contrast, take a publisher like The New York Times. It does exercise editorial discretion over what it disseminates. It reviews each piece of content it publishes and decides whether to publish it or not. And, as a result, it accepts liability for that decision. If a newspaper or other publisher repeats or otherwise republishes defamatory third-party content—e.g., in an op-ed piece or letter to the editor—the publisher will be subject to liability to the same extent as if it had created the content itself (subject to some nuances that we need not address for present purposes).Somewhere in between we have distributors like bookstores or magazine stands. They exercise some editorial discretion in choosing what books and magazines to sell, so that threshold requirement is met. But, unlike a newspaper, bookstores and magazine stands do not review or read every line of every book and magazine they sell. And they certainly don’t have the ability to go line by line and remove content they disagree with. Therefore, when it comes to distributors (as opposed to publishers), the law generally imposes liability for third-party defamatory statements only if the distributor knew (or constructively knew) of the defamatory statement at issue.Now consider online platforms that host third-party content. In some ways, they act, or can act, more like newspapers. They can create walled gardens, hire moderators, review and take down user posts they don’t like, and deny access to those whose content they don’t want to publish in the first instance. In other ways, at least some are more like the telephone company. They can choose not to hire moderators and review content, and instead simply let users post whatever they want. So, in these ways, they are more like common carriers. In some other ways, though, online platforms are more like bookstores. They distribute lots of third-party content and may, at least for certain kinds of content, exercise editorial discretion in doing so.Given the various functions online platforms can and cannot realistically perform, in the early days of the World Wide Web it was unclear how to think about their liability for the third-party content they published (or distributed). And two early cases that faced this issue came to different conclusions, though both held that they could be liable. One analogized them more to bookstores and the other more to newspapers.Pre-Section 230 CasesIn a 1991 case, <a href="https://law.justia.com/cases/federal/district-courts/FSupp/776/135/2340509/" target="_blank" dir="ltr">Cubby Inc. v. CompuServe Inc.,</a> in the Southern District of New York, Cubby Inc. and Robert Blanchard sued CompuServe for libel, business disparagement, and unfair competition for hosting a forum with content created by Rumorville USA, a daily newsletter that published allegedly defamatory content about a competing online newsletter developed by Blanchard and Cubby Inc. The court held that online service providers were subject to standard defamation law for their hosted content and, although CompuServe did host defamatory content on its forums, CompuServe was merely a distributor, rather than a publisher, of the content. Therefore, CompuServe could only be held liable for defamation if it knew or had reason to know of the defamatory nature of the content. Because Rumorville USA uploaded its newsletter automatically and CompuServe made no effort to review the content on its forums, CompuServe could not be held liable.This holding strongly disincentivized online platforms like CompuServe from reviewing or moderating their users’ content. Put differently, it incentivized platforms to operate more like a telephone company and less like a newspaper with respect to handling of users’ content.Next, we have a New York Supreme Court case, <a href="https://casetext.com/case/stratton-oakmont-inc-v-prodigy-servs" target="_blank" dir="ltr">Stratton Oakmont v. Prodigy Services</a>, from 1995, which made things even more perplexing for online platforms. In this case, a user of Prodigy’s Money Talk bulletin board created a post that claimed that Stratton Oakmont (a securities investment banking firm) and its president committed criminal and fraudulent acts in connection with an IPO. In response, Stratton Oakmont sued Prodigy and the anonymous poster for defamation.The court held that Prodigy was liable as the publisher of the content created by its users, and thus faced the same liability standard faced by traditional newspapers. Specifically, the court found that Prodigy exercised editorial control over the messages on its bulletin boards by posting content guidelines for users, using moderators to enforce the guidelines, and using screening software designed to remove offensive language – in other words, standard content moderation.In terms of incentives, Stratton Oakmont was even worse than Cubby. Based on these cases, online platforms were incentivized to avoid exerting any effort whatsoever to moderate users’ content and try to make their platforms more pleasant. It was this perverse incentive that led directly to the enactment of Section 230, signed into law by President Bill Clinton in 1996.Enactment of Section 230As noted above, Section 230 immunizes online service providers from liability stemming from the publication, removal, and filtering of third-party content. Section 230(c)(1) is the broadest and most powerful section of the CDA and would have protected CompuServe and Prodigy from any liability for their users’ defamatory content, even if the platforms were aware of the content. CDA § 230(c)(1) states that an “interactive computer service provider” cannot be treated as a publisher or speaker of content provided by a separate “information content provider.”But what exactly does this mean and how far does Section 230’s immunity extend? In our next installment, we will look at how courts have interpreted the statute, particularly considering the rise of social media, which did not even exist in its modern form when Section 230 was enacted.

Here at Socially Aware we talk a lot about Section 230, the section of the 1996 Communications Decency Act (CDA) that immunizes social media platforms and other online service providers from liability stemming from content created by their users or other third parties. 

PART 1 - Section 230: 27 Years Old and Still in the Spotlight

Social media continues to dominate the headlines this spring, with several high-profile events capturing the media’s, regulators’, and lawmakers’ attention.Jack Owoc, founder and former CEO of Bang Energy (“Bang,” a performance energy beverage), claimed that he retained the rights to control Bang’s social media accounts, namely Instagram, TikTok, and Twitter. Owoc claimed that these accounts were intertwined with his own personal brand and therefore belonged to him.The courts and Vital Pharmaceuticals (“Vital”), Bang’s manufacturer, saw things differently. In March, U.S. Bankruptcy Judge Peter D. Russin for the Southern District of Florida blocked Owoc from the accounts; in April, Owoc was forced to delete disparaging comments he made on his Instagram handle @BangEnergy.CEO about advisers who were trying to sell the bankrupt energy drink maker. (Vital, Bang’s parent company, filed for bankruptcy in October 2020.) In March 2023, Vital removed Owoc as CEO, replacing him with John C. DiDonato.Social media account ownership was a hot topic about a decade ago, with several high-profile cases such as <a href="https://cases.justia.com/federal/district-courts/california/candce/3:2011cv03474/243145/28/0.pdf" target="_blank">PhoneDog v. Kravitz</a>, <a href="https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2011cv05013/382292/30/" target="_blank">Ardis Health, LLC et al. v. Nankivell</a>, <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1153&context=historical" target="_blank">Eagle v. Morgan</a>, and Maremont v. Susan Fredman Design Group LTD,which we discussed here in the 2013 article <a href="https://www.jdsupra.com/legalnews/ownership-of-business-related-social-med-52890">“</a><a href="https://www.jdsupra.com/legalnews/ownership-of-business-related-social-med-52890" target="_blank">Ownership of Business-Related Social Media Accounts</a>.” We provided additional coverage of similar work-related social media account ownership issues in our 2012 post, “<a href="https://www.sociallyawareblog.com/topics/which-side-are-you-on-employers-and-employees-battle-over-ownership-of-social-media-accounts" target="_blank">Which Side Are You On? Employers and Employees Battle Over Ownership of Social Media Accounts</a>.”In addition, we’ve had our eye on other aspects of the social media fabric for more than a decade. In two 2014 posts (“<a href="https://www.sociallyawareblog.com/topics/whats-in-a-like_01" target="_blank">What’s in a Like</a>” and “<a href="https://www.sociallyawareblog.com/topics/she-liked-it-she-really-really-liked-it-federal-district-court-holds-facebook-fan-page-manager-doesnt-own-likes" target="_blank">She Liked It. She Really, Really Liked It: Federal District Court Holds Facebook Fan Page Manager Doesn’t Own ‘Likes’</a>”), we discuss the value of social media “likes” as assets, including likes as protected speech, as property, and as concerted activity. We reviewed cases such as <a href="https://www.ca4.uscourts.gov/Opinions/Published/121671.P.pdf" target="_blank">Bland v. Roberts</a> and <a href="https://www.docketalarm.com/cases/Florida_Southern_District_Court/0--13-cv-61582/Mattocks_v._Black_Entertainment_Television_LLC/101/" target="_blank">Mattocks v. Black Entertainment Television</a> that respectively raised issues of likes as protected speech and likes as property.The recent events of the Bang matter have reignited the conversation around social media account ownership and control. In addition, when a company and its owner/founder are closely aligned, if not synonymous, as was the case with Owoc and Bang, it raises additional questions where the line between a company and a person’s brand identity rests.

Social Links: Social Media Account Ownership Once Again in the Spotlight

Social Links: Social Media Account Ownership Once Again in the Spotlight

Social media continues to dominate the headlines this spring, with several high-profile events capturing the media’s, regulators’, and lawmakers’ attention.

In early March 2022, a coalition of state attorneys general launched an investigation of TikTok to determine whether the social media platform, which is popular among young Americans, causes long-term harm to them. Initiated in the Massachusetts attorney general’s office and led by Massachusetts Attorney General Maura Healey (D), the probe also seeks to examine whether TikTok’s practices violate state consumer protection laws.According to an <a href="https://www.washingtonpost.com/technology/2022/03/02/state-attorneys-general-tiktok/">article</a> in The Washington Post, “The attorneys general plan to focus on the methods TikTok uses to lure young users to spend extra time on the platform and open the app frequently.” Central to the claims against ByteDance, the Chinese company that owns TikTok, is how TikTok’s powerful algorithms can suggest content that is not appropriate for young people and teens. In September 2021, The Wall Street Journal published its own <a href="https://www.wsj.com/articles/tiktok-algorithm-sex-drugs-minors-11631052944">investigation</a> that revealed how TikTok serves up adult topics to minors.Attorneys general from California, Florida, Kentucky, Nebraska, New Jersey, Tennessee, and Vermont also are working on other ongoing investigations.Additional coverage of this topic includes: <ul><li><a href="https://www.wsj.com/articles/tiktok-faces-scrutiny-in-state-attorneys-general-probe-of-online-harms-to-children-11646251698">TikTok Faces Scrutiny in State Attorneys General Probe of Online Harms to Children</a> (The Wall Street Journal)</li><li><a href="https://mashable.com/article/nationwide-attorneys-general-investigate-tiktok">Nationwide investigation into TikTok underway by group of state attorneys general</a> (Mashable)</li><li><a href="https://www.msnbc.com/the-reidout/reidout-blog/tiktok-investigation-rcna18516">TikTok's honeymoon period is over, state AG probe suggests</a> (MSNBC)</li></ul> The EU draws a hard line in the sand with the Digital Markets ActIn late March 2022, the new legislation was passed that has the potential to reign in the power of some of the world’s most powerful technology companies.<a href="https://www.nytimes.com/2022/03/24/technology/eu-regulation-apple-meta-google.html">The Digital Markets Act</a> comes from the European Union, one of the strongest and strictest government coalitions to regulate big tech’s reach and influence on society, governments, corporations, and populations. Long known for its stalwart stance against that reach, the European Union has led the way with other landmark regulations, including the 2018 <a href="https://gdpr-info.eu/">General Data Protection Regulation</a> (GDPR), a privacy law that restricts the online collection and sharing of personal data. That regulation made Europe the “world’s leading tech watchdog” according to an <a href="https://www.nytimes.com/2018/05/24/technology/europe-gdpr-privacy.html">article</a> in The New York Times.The Center for Strategic and International Studies offers this <a href="https://www.csis.org/analysis/european-unions-digital-markets-act-primer">primer</a> on the Digital Markets Act, while Wired provides its own <a href="https://www.wired.com/story/digital-markets-act-messaging/">unique take</a> on the legislation and its potential primary impact on U.S.-based companies.Our European colleagues will be reporting on this landmark legislation shortly, so stay tuned here at Socially Aware for updates.Now on remand, district court denies Meta’s motion to dismiss in right of publicity caseOn April 22, 2022, the district court presiding over Hepp v. Meta Platforms (FKA Hepp v. Facebook) denied Meta’s <a href="https://www.law360.com/articles/1486615/attachments/0">Motion to Dismiss</a> the Second Amended Complaint. As previously <a href="https://www.sociallyawareblog.com/topics/district-court-in-third-circuit-sides-with-ninth-circuit-section-230-protects-social-media-platforms-from-state-law-intellectual-property-claims.html">reported</a> by Socially Aware, the plaintiff Karen Hepp alleged that Meta violated her right of publicity under Pennsylvania law (both common law and statutory) when a third-party advertiser used a photo of the plaintiff, a news anchor in Philadelphia, in an ad soliciting users to “meet and chat with single women.”Consistent with the Ninth Circuit’s holding in Perfect 10 v. CCBill, Meta originally argued that Section 230 of the U.S. Communications Decency Act preempts state law right of publicity claims. While the district court agreed with Meta, finding social media platforms immune under Section 230 for such right of publicity violations, the Third Circuit reversed, holding that Section 230(e)(2) applies to both federal and state intellectual property claims. (Section 230(e)(2) states “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.”)On remand, Meta argued the plaintiff could not succeed on the merits because: (1) Meta did not use her image for a “commercial purpose” or have “actual knowledge” of the unauthorized use, as required under Pennsylvania’s right of publicity statute; (2) her common law claim has been abrogated and subsumed by the comprehensive statutory scheme created when the Pennsylvania legislature enacted the statutory right of publicity; and (3) if her common law claim does still exist, she failed to plead facts sufficient to establish a claim.After considering clause (1), the district court found that the argument was more appropriate for summary judgment. The court was unwilling to resolve the issue in clause (2) since discovery would already commence based on the plaintiff’s statutory claim. Finally, regarding clause (3), the court found that the plaintiff had set forth sufficient facts to survive a motion to dismiss.

Coalition of State Attorneys General Investigate Tiktok’s Potential Harm to Children and Teens

In early March 2022, a coalition of state attorneys general launched an investigation of TikTok to determine whether the social media platform, which is popular

Coalition of State Attorneys General Investigate Tiktok’s Potential Harm to Children and Teens

Lawmakers on Capitol Hill continue to take aim at social media platforms that collect and use personal information that build algorithms to target individuals across a variety of dimensions when users engage with those platforms, most prominently in the form of advertising and other promotional campaigns from the political, entertainment, and commercial realms.The Banning Surveillance Advertising Act, introduced in January by <a href="https://eshoo.house.gov/media/press-releases/eshoo-schakowsky-booker-introduce-bill-ban-surveillance-advertising" target="_blank">Democratic Representatives Anna Eshoo (California) and Jan Schakowsky (Illinois), and Democratic Senator Cory Booker (New Jersey)</a>, seeks to rein in advertisers, ad networks, and other entities from using personal information received from third parties to target advertisements. As <a href="https://www.mediapost.com/publications/article/370406/new-bill-would-outlaw-most-forms-of-behavioral-tar.html" target="_blank">Media Post</a> reports, “The bill says personal information includes data that is ‘reasonably linkable’ to an individual or device—including inferred data, browsing activity and unique identifiers.”What makes this bill different from previous privacy bills is its departure from requiring a user’s consent or allowing a user to opt out of behavioral targeting. The bill would still permit contextual advertising, which generally refers to advertisements based on the information that a particular screen is displaying or for which the individual searched. But it would prohibit using information collected for contextual advertising purposes for further targeting in other forums or contexts. The bill also would not restrict certain types of location-based targeted advertising. In addition, the bill would ban targeting on either actual or perceived information about a user’s race, national origin, religion, sex, disability, or other protected statuses.The technology and advertising sectors have been swift with their commentary on the bill. Read more from the following:<ul><li><a href="https://www.emarketer.com/content/why-marketers-should-take-banning-surveillance-advertising-act-seriously" target="_blank">eMarketer</a></li><li><a href="https://techcrunch.com/2022/01/18/banning-surveillance-advertising-act/" target="_blank">Tech Crunch</a></li><li><a href="https://www.adexchanger.com/privacy/even-if-targeted-online-advertising-isnt-banned-take-note-of-which-way-the-wind-is-blowing/" target="_blank">Ad Exchanger</a></li></ul><h3>Like COVID variants, misinformation in social media surges</h3>Recent studies have shown a steep rise in misinformation being spread by online gangs and other groups responsible for coordinated inauthentic behavior (CIB). These movements continue to spread conspiracy theories and anti-vaccination rhetoric, and often use bullying tactics to harass and intimidate influencers, health officials, and journalists who oppose their alt-views. Many believe that these actors are causing more harm than government-backed groups, given their ability to infiltrate social media platforms, and the difficulty in regulating their informal tactics.Meta, Facebook’s parent company, <a href="https://about.fb.com/news/2021/12/metas-adversarial-threat-report/" target="_blank">recently banned adversarial pages</a> that were associated with a European anti-vaccination movement called “Viral Vendetta,” or “V_V,” as <a href="https://public-assets.graphika.com/reports/graphika_report_viral_vendetta.pdf" target="_blank">this Graphika report</a> explains.As <a href="https://www.axios.com/newsletters/axios-login-0bb473c3-938b-4771-bd0b-bbac04a795a4.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axioslogin&stream=top" target="_blank">Axios recently reported</a>, “Loosely organized activist movements can be more dangerous than bot-driven campaigns that are often backed by state or government actors, because they link real-world people who can encourage each other to take more drastic actions, according to Bryce Webster-Jacobsen, director of intelligence operations at GroupSense, a threat intelligence firm.”According to Meta, the company now has taken swift action against two tactics that these alt-actors employ:<ul><li>Brigading: We will remove any adversarial networks we find where people work together to mass comment, mass post or engage in other types of repetitive mass behaviors to harass others or silence them.</li><li>Mass Reporting: We will remove any adversarial networks we find where people work together to mass-report an account or content to get it incorrectly taken down from our platform.</li></ul><h3>Increasing number of U.S. adults favor regulation of social media</h3>A <a href="https://assets.morningconsult.com/wp-uploads/2021/10/18135638/2110047_crosstabs_MC_TECH_FACEBOOK_Adults_v1_CC.pdf?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axioslogin&stream=top" target="_blank">recent study from Morning Consult</a> reported that 56% of U.S. adults are in favor of governmental regulation of social media companies. That study also cited that approximately three in five U.S. adults don’t believe that social media platforms go far enough to keep their users safe.The year 2021 witnessed a sharp increase in governmental and general societal scrutiny of social media platforms and the roles they play—or don’t play—in a variety of societal, governmental, and political arenas.But how to fix the myriad of issues that policymakers and the public raise about social media remains elusive, given the massive role that it plays in society.As Ashley Johnson, a senior policy analyst at the Information Technology and Innovation Foundation noted in a report that accompanied the Morning Consult survey, “I think if there is legislation, it's going to be very broad, in order to try to compromise and break this really large gap between the two parties.”

Social Links: Behavioral targeting under scrutiny from lawmakers

Lawmakers on Capitol Hill continue to take aim at social media platforms that collect and use personal information that build algorithms to target individuals a

Social Links: Behavioral targeting under scrutiny from lawmakers

In late October, Facebook announced that it would <a rel="noopener" target="_blank" href="https://about.fb.com/news/2021/10/facebook-company-is-now-meta/">change its name to Meta</a>, signaling a shift of the social media giant’s focus toward the <a rel="noopener" target="_blank" href="https://www.investopedia.com/metaverse-definition-5206578">metaverse</a>, a virtual space where social media, gaming, augmented reality, virtual reality, and cryptocurrencies converge and allow people to interact virtually with one another. It’s a relatively new concept in technology with <a rel="noopener" target="_blank" href="https://www.forbes.com/sites/cathyhackl/2021/05/02/defining-the-metaverse-today/?sh=883764764485">many different definitions and interpretations</a>. Facebook CEO Mark Zuckerberg <a href="https://about.facebook.com/meta">made the announcement at the company’s annual Connect conference</a> that brings together virtual and augmented reality developers, content creators, marketers, and other technologists to explore the industry’s growth and expansion.In addition to the name change, <a rel="noopener" target="_blank" href="https://about.fb.com/news/2021/11/update-on-use-of-face-recognition/">Facebook also announced</a> in early November that it would be shutting down its face recognition system that close to a third of all Facebook users use. This change in technology policy represents a seismic shift for the company and for the larger social media landscape, reflecting ongoing conversations in the industry about data privacy and access to personal information.Just in time for the holiday shopping season: Pinterest launches its own shopping networkIn late October, image sharing social media giant <a href="https://newsroom.pinterest.com/en/post/introducing-pinterest-tv">Pinterest announced</a> the launch of Pinterest TV, a digital destination where users and subscribers can interact with Pinterest creators selling their goods and creations. The channel features original episodes from “Pinners” in livestream sessions that are recorded and can be accessed after broadcast in an on-demand archive.COVID-19 fueled a meteoric increase in both online and live streaming shopping activities delivered from traditional television channels such as QVC and Home Shopping Network as well as internet companies such as YouTube, TikTok, Snapchat, and Amazon. <a rel="noopener" target="_blank" href="https://www.axios.com/live-video-shopping-format-fire-fd6b2b15-0e0e-46ea-9dce-64a167a277e8.html">Axios reported in September</a> that the live video shopping format is poised for exponential growth, while Coresight Research, a retail and tech analysis firm, predicted that livestream e-commerce could see growth to $25 billion in sales within the next two years.Social media companies prevail in Communications Decency Act’s intellectual property exception; Third Circuit cites internet publisher immunityKaren Hepp, a well-known Philadelphia television journalist, was photographed in 2017 by a New York City convenience store camera without her knowledge or consent. That photograph later found its way in a variety of online advertisements ranging from dating services to erectile dysfunction products.Hepp sued Facebook, Reddit, and Imgur in the United States District Court for the Eastern District of Pennsylvania. She claimed that each platform violated Pennsylvania’s statutory and common law right of publicity laws. <a rel="noopener" target="_blank" href="https://today.westlaw.com/Document/Iaf5326271d1d11ecbea4f0dc9fb69570/View/FullText.html?contextData=(sc.Default)&transitionType=Default&firstPage=true">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 rel="noopener" target="_blank" href="https://law.justia.com/cases/federal/appellate-courts/ca3/20-2725/20-2725-2021-09-23.html">Hepp v. Facebook, No. 20-2725 (3d Cir. 2021).</a>Algorithms under fire: proposed bill could alter Section 230 of the Communications Decency ActHouse Energy and Commerce Committee Chairman Frank Pallone, Democratic Representative from New Jersey, is sponsoring the Justice Against Malicious Algorithms Act (JAMA), a bill that would modify Section 230 of the Communications Decency Act of 1996 (CDA), which protects websites from liability over content posted by their users. The bill seeks to amend and strip away immunity from online platforms if they “knowingly or recklessly uses a personalized algorithm to recommend content that materially contributes to physical or severe emotional injury” <a rel="noopener" target="_blank" href="https://www.axios.com/newsletters/axios-login-55b536ad-4a7b-4557-a4d7-d3d1dde8be18.html">according to Axios</a>. The bill does not apply to platforms with fewer than five million unique monthly visitors or users.Some <a rel="noopener" target="_blank" href="https://www.engadget.com/house-bill-justice-against-malicious-algorithms-act-162915185.html">analysts don’t think the bill will get past the House of Representatives</a>, but even with its introduction, it sends a strong message for social media platforms to introduce more stringent policies away from self-regulation of content.LinkedIn’s presence in China to change under censorship concernsLinkedIn, the professional networking giant, recently announced that it will <a rel="noopener" target="_blank" href="https://blog.linkedin.com/2021/october/14/china-sunset-of-localized-version-of-linkedin-and-launch-of-new-injobs-app">retire its Chinese version and replace it with a new job board called “InJobs”</a> to connect China-based professionals with employers. LinkedIn acknowledges that operating in China presents challenges in compliance with the country’s requirements.LinkedIn recently came under fire for recently <a rel="noopener" target="_blank" href="https://www.axios.com/linkedin-blocks-us-journalists-profiles-in-china-22fcefd4-5bc1-490b-a448-b4f9b05e9566.html">blocking U.S. journalists’ profiles in China</a>. One such journalist, Bethany Allen-Ebrahimian, <a rel="noopener" target="_blank" href="https://www.axios.com/linkedin-unanswered-questions-china-censorship-56b75495-230c-4dc2-9a29-6a35e2f8cec0.html">pressed the platform about its censorship activities in China.</a>This unfolding story raises ongoing questions about Western technology companies and the roles they play in China, especially in their interplay with the Chinese government and its strict censorship laws and regulations.

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Facebook rebrands as “Meta;” disables facial recognition capabilities

Facebook rebrands as “Meta;” disables facial recognition capabilities

sociallyaware-ecommerce

In late October, Facebook announced that it would change its name to Meta, signaling a shift of the social media giant’s focus toward the metaverse, a virtual s

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District Court Enjoins Controversial Texas Social Media “Censorship” Law

District Court Enjoins Controversial Texas Social Media “Censorship” Law