Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

Social Links: Going Back to Cali

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Here at Socially Aware we covered a wide range of issues in 2019. We reviewed an opinion reminding us that <a href="https://www.sociallyawareblog.com/2019/03/22/whats-in-a-username/" target="_blank" rel="noopener">user-generated content posted on social media platforms is not necessarily freely available for use in other contexts</a>, and a rare instance of a federal district court holding that <a href="https://www.sociallyawareblog.com/2019/11/04/just-browsing-district-court-finds-browsewrap-agreement-enforceable/" target="_blank" rel="noopener">a browsewrap agreement was enforceable</a>.We also examined some aspects of Internet law in Europe, including the legality of <a href="https://www.sociallyawareblog.com/2019/03/14/cookie-wall-legality-in-the-eu/" target="_blank" rel="noopener">using “cookie walls” in the European Union</a>, and the <a href="https://www.sociallyawareblog.com/2019/05/15/the-eu-copyright-directive-passes-but-member-states-remain-split-on-upload-filters/" target="_blank" rel="noopener">EU Copyright Directive’s impact</a> on content-sharing service providers’ liability for copyright-infringing content.And, as <a href="https://www.sociallyawareblog.com/2018/08/22/section-230-survives-to-fight-another-day-following-california-supreme-court-decision/">we’ve done in past years</a>, we revisited the scope of the “safe harbor” that Section 230 of the Communications Decency Act provides <a href="https://www.sociallyawareblog.com/2019/09/05/safe-harbor-in-section-230-of-the-communications-decency-act-applies-to-wide-variety-of-claims/" target="_blank" rel="noopener">again</a>, <a href="https://www.sociallyawareblog.com/2019/07/17/federal-circuit-holds-that-section-230-locks-out-locksmiths/" target="_blank" rel="noopener">again</a>, and <a href="https://www.sociallyawareblog.com/2019/04/30/appeals-court-upholds-section-230-protections-in-case-against-grindr/" target="_blank" rel="noopener">again</a>.But none of those topics—except the CDA’s Section 230—are on our list of the top-ten most read articles of 2019. Here are the pieces that made the cut:<ol><li><a href="https://www.sociallyawareblog.com/2019/09/11/general-audience-google-youtube-to-pay-170-million-for-alleged-coppa-violations/" target="_blank" rel="noopener">The Company Who Cried “General Audience”: Google and YouTube to Pay $170 Million for Alleged COPPA Violations</a></li><li><a href="https://www.sociallyawareblog.com/2019/04/05/how-to-comply-with-the-revised-ephemeral-messaging-provision-in-the-fcpas-corporate-enforcement-policy/" target="_blank" rel="noopener">How to Comply with the Revised Ephemeral-Messaging Provision in the DOJ’s Corporate Enforcement Policy</a></li><li><a href="https://www.sociallyawareblog.com/2019/08/02/by-winning-motion-to-dismiss-supermodel-loses-chance-to-clarify-whether-she-can-lawfully-post-photos-of-herself-to-social-media/" target="_blank" rel="noopener">By Winning Motion to Dismiss, Supermodel Loses Chance to Clarify Whether She Can Lawfully Post Photos of Herself to Social Media</a></li><li>Will the Music Industry Continue To Win Its Copyright Battle Against ISPs?</li><li><a href="https://www.sociallyawareblog.com/2019/03/06/copyright-infringement-on-user-generated-platforms-when-is-the-platform-provider-liable-for-damages/" target="_blank" rel="noopener">Time to Hit Pause: Copyright Infringement on User-Generated Platforms – When Is the Platform Provider Liable for Damages?</a></li><li><a href="https://www.sociallyawareblog.com/2019/08/20/the-meme-generation-social-media-platforms-address-content-curation/" target="_blank" rel="noopener">The Meme Generation: Social Media Platforms Address Content Curation</a></li><li><a href="https://www.sociallyawareblog.com/2019/07/23/court-holds-that-arbitration-clause-in-hybridwrap-terms-is-unenforceable/" target="_blank" rel="noopener">Court Holds That Arbitration Clause in “Hybridwrap” Terms Is Unenforceable</a></li><li><a href="https://www.sociallyawareblog.com/2019/10/09/insta-mural-infringement-public-art-in-instagram-ad-leads-to-copyright-claim/" target="_blank" rel="noopener">Insta-Mural Infringement: Public Art in Instagram Ad Leads to Copyright Claim</a></li><li><a href="https://www.sociallyawareblog.com/2019/06/27/california-court-finds-section-230-protects-decision-to-suspend-and-ban-twitter-account/" target="_blank" rel="noopener">California Court Finds Section 230 Protects Decision to Suspend and Ban Twitter Account</a></li><li><a href="https://www.sociallyawareblog.com/2019/09/17/ninth-circuits-linkedin-decision-does-not-greenlight-the-unauthorized-web-scraping-of-public-websites/" target="_blank" rel="noopener">Ninth Circuit’s LinkedIn Decision Does Not Greenlight the Unauthorized Web Scraping of Public Websites</a></li></ol>

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2019: Our Greatest Hits

Here at Socially Aware we covered a wide range of issues in 2019. We reviewed an opinion reminding us that user-generated content posted on social media platfor

2019: Our Greatest Hits

Courts continue to grapple with the enforceability of online agreements. While courts generally enforce clickwrap agreements—online agreements where users affirmatively show their acceptance after being presented with the terms, usually by clicking “I agree”—browsewrap agreements have stood on shakier enforceability grounds. Browsewrap agreements are online terms that, unlike a clickwrap agreement, do not require any affirmative indication of consent. Indeed, users can often continue using a website without ever viewing the terms of a browsewrap agreement, or possibly even knowing they exist. As the Northern District of California’s decision in <a href="https://www.leagle.com/decision/infdco20190506976" target="_blank" rel="noopener">Alejandro Gutierrez v. FriendFinder Networks Inc.</a> demonstrates, browsewrap agreements are not always unenforceable, but reaching such a determination can be a highly fact-specific inquiry requiring significant discovery—including discovery of offline activities, such as phonecalls between the user and the online service provider.AdultFriendFinder.com (AFF) is an online dating website. The website is generally free, although users can pay for particular upgrades and services. Users must register to use the site, and AFF collects users’ personal information as part of the registration process. Use of AFF is governed by the site’s Terms of Use (the Terms). Users don’t have to explicitly agree to the Terms in order to register or use AFF, but the Terms are readily available on the site, and they state that continued use of AFF constitutes acceptance. The Terms also include an arbitration provision.Gutierrez began using AFF at least as early as July 2003, and continued using it for over a decade. Throughout this time, he provided personal information to AFF, including his name, address, credit card information, and photos.Gutierrez alleges that, in October 2016, someone hacked AFF’s systems and downloaded the personal information of 339 million AFF users. Based on this security breach, Gutierrez brought a putative class action in the federal district court of the Northern District of California against FriendFinder Networks, Inc. (“FriendFinder”), which owns and operates AFF. FriendFinder sought to dismiss the action and compel arbitration, based on the arbitration provision in the Terms. Gutierrez argued that he was not bound by the arbitration provision, because he never agreed to the Terms.Ultimately, the court found that Gutierrez did in fact agree to the Terms, despite the absence of evidence that he had ever viewed them, and granted FriendFinder’s motion to compel arbitration. According to the court, the Terms could be considered a browsewrap agreement because AFF did not require users to expressly indicate consent, or visit any page containing the Terms, before registering and using the site. Although browsewrap agreements are rarely enforced, the court found that the Terms were enforceable against Gutierrez in this instance. According to the court, Gutierrez was on inquiry notice that his continued use of the site would constitute an indication of his intent to be bound, and Gutierrez in fact gave such an indication by using the site after receiving the notice.Importantly, the court based its finding on a 2013 call between Gutierrez and a FriendFinder customer support representative. Gutierrez called FriendFinder customer support after losing access to AFF. The representative informed Gutierrez that he’d lost access to AFF because he had posted his email address in an AFF chatroom “in violation of [AFF’s] Terms of Use.” When Gutierrez said he didn’t understand why posting in a chatroom was “such a big deal,” the customer support representative explained, “Because we set restrictions on the website . . . .  you need to follow our rules and regulations.” According to the court, this conversation constituted notice to Gutierrez that, if he wanted to use AFF, he would be bound by the Terms. Once Gutierrez regained access to AFF, he continued using the site. Although he never read the Terms, the Terms were readily available on AFF. Because Gutierrez continued to use AFF after the representative notified him that the Terms govern his use of the site, and because the Terms clearly state that continued use of AFF constitutes acceptance, the court found that Gutierrez had in fact accepted the Terms.Although the court ultimately enforced AFF’s browsewrap terms, this case should still be a warning to website operators about the risks of using browsewrap agreements. The court could have reached a different decision if the plaintiff hadn’t had a separate customer support call that mentioned the Terms, or if FriendFinder had been unable to produce evidence of the call.

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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Just Browsing: District Court Finds Browsewrap Agreement Enforceable

Just Browsing: District Court Finds Browsewrap Agreement Enforceable

Courts continue to grapple with the enforceability of online agreements. While courts generally enforce clickwrap agreements—online agreements where users affir

A federal district court in Illinois recently held in <a href="https://www.bloomberglaw.com/public/desktop/document/AnandvHeathNo19CV000162019BL242545NDIllJune282019CourtOpinion?1562518361" target="_blank" rel="noopener">Anand v. Heath</a> that a digital marketing company could not force a user to arbitrate because a “Continue” button on its website did not provide clear notice that clicking the button constituted assent to the hyperlinked terms and conditions that contained the arbitration provision.As we have <a href="https://www.sociallyawareblog.com/2016/06/14/scroll-box/" target="_blank" rel="noopener">noted previously</a>, website operators who wish to enforce their online terms against users will have a higher likelihood of success if they do two things. First, the website should display the terms to users in a conspicuous fashion. Second, and applicable here, the website should affirmatively and unambiguously require users to assent to the terms. Anand demonstrates that online agreements risk unenforceability when the terms are presented in a manner that does not make clear to users that they are agreeing to be bound.The website www.retailproductzone.com offers users free gift cards in exchange for their responses to surveys and for their consent to be contacted for marketing purposes. Reward Zone USA LLC, a subsidiary of Fluent Inc., maintains the website. In June 2017, plaintiff Narantuya Anand registered on www.retailproductzone.com and completed a survey to receive a free gift card. According to Anand, she then received several unwanted telemarketing voicemails and text messages. Anand filed a putative class action against Fluent and Reward Zone alleging violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227. The defendants moved to compel Anand to arbitrate her claims based on the terms and conditions present on www.retailproductzone.com, which included a mandatory-arbitration clause. Anand argued that she never agreed to the arbitration clause contained in the website’s terms and conditions.When Anand navigated through the www.retailproductzone.com website in 2017, the words “I understand and agree to the Terms & Conditions which includes mandatory arbitration and Privacy Policy” were displayed above a “Continue” button. The defendants contended that, when Anand registered on the website, submitted her contact information, and advanced through the website after clicking “Continue,” she expressly assented to the arbitration clause contained in the terms and conditions. Anand denied that she had agreed to be bound by the arbitration clause.In determining whether the arbitration provision was enforceable against Anand, the court analyzed the configuration of the terms-of-use agreement on Reward Zone’s website.The court noted that online agreements often fall into one of two categories, using terminology that has become ubiquitous if not always very illuminating: “clickwrap” and “browsewrap” agreements. So-called clickwrap agreements require users to click on an “I agree” box or otherwise expressly manifest assent to be bound after being presented with the terms and conditions. In contrast, browsewrap agreements do not require the user to expressly accept the terms and are generally provided through a link on the website, often in small type at the bottom of the screen. In theory, users are assumed to have accepted a browsewrap agreement simply by using the website. The Anand court noted, however, that courts are generally reluctant to enforce browsewrap agreements.The court then goes on to note that many online agreements do not fall neatly into either the clickwrap or browsewrap category. Rather than abandoning the arguably misleading clickwrap/browsewrap dichotomy altogether, however, the court describes yet a third category of online contract, using the term “hybridwrap” to describe an online agreement that combines characteristics of a clickwrap and browsewrap. This mode of analysis, which a number of courts have employed since at least the Southern District of New York’s opinion in Fteja v. Facebook, holds that hybridwrap agreements “typically prompt the user to manifest assent” after presenting a hyperlink to the terms and conditions, rather than displaying the terms themselves.First, the court examined how Reward Zone presented its terms to users. The court noted that the terms themselves were presented through a hyperlink and that the user’s ability “to continue through the site was not conditioned on express assent” to the terms. Significantly, the “Continue” button did not explicitly establish a connection to the “I understand and agree . . . ” language preceding the link to the terms and conditions. The court outlined the deficiencies of Reward Zone’s configuration as follows:The hybridwrap agreement here is unenforceable because nothing expressly linked the “I understand and agree . . . ” language to the “Continue” button.  There was no “notice informing the user that, by clicking the button, the user [wa]s agreeing to” the terms and conditions.  Anand was not, for example, presented with an “‘I agree’ box after being presented with a list of terms and conditions for use,” nor was she otherwise “require[d] . . . to manifest assent to the terms and conditions expressly.”Second, the court rejected the defendant’s argument that Anand had assented by affirmatively clicking “Continue” to proceed through the website. The court pointed back to its finding that the website did not explain that clicking “Continue” would “constitute assent to the terms and conditions or that continuation was conditioned on such assent.”Third, the court also examined the placement of the “I understand and agree . . .” text above the “Continue” button. Here, there was “no connection between the statement ‘I understand and agree . . .’ and the ‘Continue’ button apart from the placement of the text above the button.” The court reasoned that the “mere proximity of a terms and conditions hyperlink to a button that the user must click to proceed does not equate to an affirmative manifestation of assent to the terms and conditions.” The opinion acknowledged that courts typically give effect to hybridwrap terms where “the button required to perform the action manifesting assent . . . is located directly next to a hyperlink to the terms and a notice informing the user that by clicking the button, the user is agreeing to those terms.” No such configuration was present on Reward Zone’s website.Finally, the court distinguished the cases cited by the defendants — where other courts enforced the terms of use of online agreements — because “those agreements included language expressly linking an action by the user to the manifestation of assent.” For example, in Fteja v. Facebook, the court held that the plaintiff “was informed of the consequences of his assenting click” where the website read: “[b]y clicking Sign Up, you are indicating that you have read and agree to the Terms of Service.” In <a href="https://law.justia.com/cases/federal/appellate-courts/ca2/16-2750/16-2750-2017-08-17.html" target="_blank" rel="noopener">Meyer v. Uber Technologies, Inc.</a>, the website’s text clearly explained that “[b]y creating an Uber account, you agree . . . . ”  Ultimately, the court did not find any “language that linked the notice regarding mandatory arbitration or the terms and conditions to the ‘Continue’ button” on Reward Zone’s website. Accordingly, the court denied Fluent and RewardZone’s motion to compel arbitration.Anand serves as yet another reminder that correctly implementing online agreements is critical to ensuring that such agreements will actually be enforceable against users. Regardless of the various flavors of “-wrap” terminology one uses, the keys to making online agreements enforceable are providing conspicuous notice of the terms to users, and obtaining users’ express assent to be bound by those terms.

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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Court Holds that Arbitration Clause in “Hybridwrap” Terms Is Unenforceable

Court Holds that Arbitration Clause in “Hybridwrap” Terms Is Unenforceable

A federal district court in Illinois recently held in Anand v. Heath that a digital marketing company could not force a user to arbitrate because a “Continue” b

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

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

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

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

As we have <a href="https://www.sociallyawareblog.com/2016/03/22/currency/" target="_blank" rel="noopener">noted previously</a>, YouTube users sometimes object when the online video giant removes their videos based on terms-of-use violations, such as artificially inflated view counts. In a recent California case, <a href="https://law.justia.com/cases/california/court-of-appeal/2017/h042775.html" target="_blank" rel="noopener">Bartholomew v. YouTube, LLC, </a>the court rejected a user’s claim that the statement YouTube posted after it removed her video, which allegedly gave the impression that the video contained offensive content, was defamatory.Joyce Bartholomew is a musician who creates what she calls “original Christian ministry music.” Ms. Bartholomew produced a video for the song “<a href="https://www.youtube.com/watch?v=6zQOV3GSWfM" target="_blank" rel="noopener">What Was Your Name</a>” and posted the video on YouTube in January 2014. YouTube assigned a URL to the video, which Ms. Bartholomew began sharing with her listeners and viewers. By April 2014, she claims that the video had amassed over 30,000 views.Shortly afterwards, however, YouTube removed the video and replaced it with the image of a “distressed face” and the following removal statement: “This video has been removed because its content violated YouTube’s Terms of Service.” The removal statement also provided a hyperlink to YouTube’s “<a href="https://www.youtube.com/yt/about/policies/#community-guidelines" target="_blank" rel="noopener">Community Guideline Tips</a>,” which identifies 10 categories of prohibited content: “Sex and Nudity,” “Hate Speech,” “Shocking and Disgusting,” “Dangerous Illegal Acts,” “Children,” “Copyright,” “Privacy,” “Harassment,” “Impersonation” and “Threats.”In an exchange between Ms. Bartholomew’s counsel and YouTube, it emerged that YouTube had removed the video because Ms. Bartholomew’s account had violated Paragraph 4(H) of YouTube’s terms of service, which bans the use of automated systems such as “robots” or “spiders” that send “more request messages to the YouTube servers in a given period of time [than] a human can reasonably produce in the same period by using a conventional on-line Web browser.” In other words, YouTube alleged, Ms. Bartholomew had artificially inflated the view count for her video.Ms. Bartholomew sued YouTube for libel based on the removal statement and the hyperlink to the Community Guideline Tips, which she argued had harmed her reputation by implying a “want of character” based on the featured prohibited categories such as sex, nudity, hate speech, etc. YouTube filed a demurrer. The trial court ruled that the removal statement was not libelous, and that the Community Guideline Tips page did not defame Ms. Bartholomew because some of the categories mentioned, such as “Children,” “Copyright” and “Privacy,” do not necessarily suggest offensive conduct. Ms. Bartholomew appealed, arguing that the trial court’s conclusions were erroneous and that both the removal statement and the Community Guideline Tips were defamatory.The California Court of Appeals examined the hyperlink in YouTube’s removal statement, which led to the Community Guideline Tips page. Some of these statements, the court noted, if they were sufficiently directed at Ms. Bartholomew, could constitute libel. However, Ms. Bartholomew had failed to allege “how the hyperlink could be viewed as defaming her personally.” Hyperlinks can be used in many different ways, including providing the viewer with more or less specific information about the subject being discussed on the originating page.Here, the court observed, the Community Guidelines Tips page provided “information more general” than was available on the originating page. An Internet user with a “reasonable working knowledge” of how Internet hyperlinks work would have understood that “no one particular offense could be reasonably read to apply to Bartholomew’s video and that the categories applied to the many thousands of videos that YouTube might have had to remove for any number of reasons.” Given the generality of the Community Guidelines Tips page, the court observed that Ms. Bartholomew had provided “no theory as to how the generalized statements on the Community Guideline Tips page were ever ascribed in any particular way to her.”The court also examined YouTube’s removal statement standing on its own – i.e., the statement “This video has been removed because its content violated YouTube’s Terms of Service.” The removal statement alleges that Ms. Bartholomew breached the Terms of Service, but a statement alleging a breach of contract is not defamatory per se. To support a defamation claim based on such a statement, the plaintiff must<a href="http://caselaw.findlaw.com/ca-court-of-appeal/1759551.html" target="_blank" rel="noopener"> demonstrate that the statement is defamatory by “innuendo</a>” or under a certain reading of the statement, supported by extrinsic facts.Citing its <a href="https://scholar.google.com/scholar_case?case=2991274174153378376&hl=en&as_sdt=2006&as_vis=1" target="_blank" rel="noopener">own precedent</a>, the court held that Ms. Bartholomew had failed to make such a demonstration. Given the breadth of items covered in YouTube’s terms of service, which includes three pages of single-spaced, fine print and a privacy policy, the Court held that the removal statement on its own did not subject Ms. Bartholomew to “hatred, contempt, ridicule, or obloquy” or tend to “injure [her] in [her] occupation.”On November 21, 2017, YouTube cited Bartholomew to defend against similar claims in a three-year-old libel suit, <a href="https://www.courthousenews.com/wp-content/uploads/2017/12/YouTube.Motion.forSumJudg.pdf" target="_blank" rel="noopener">Song Fi Inc. v. Google Inc.</a> Much like Ms. Bartholomew, plaintiffs Song Fi and Rasta Rock Opera claimed that Google and YouTube damaged their reputation when YouTube removed their video and posted the removal statement, implying that the video contained improper content.But, in its summary judgment motion in Song Fi, Google argues “Ms. Bartholomew held that the notice, whether on its own or combined with the guidelines, was not capable of conveying a defamatory meaning and was not a statement ‘of and concerning’ the plaintiff.” The Song Fi court <a href="https://www.courthousenews.com/wp-content/uploads/2017/12/YouTube.Order_.on_.Motion.pdf" target="_blank" rel="noopener">denied</a> Google’s motion to dismiss the plaintiffs’ defamation claim in 2016, but we will be watching closely to see how the court rules on YouTube’s summary judgment motion in light of Bartholomew.

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California Court Holds That YouTube’s Removal Notice Is Not Defamatory

California Court Holds That YouTube’s Removal Notice Is Not Defamatory

As we have noted previously, YouTube users sometimes object when the online video giant removes their videos based on terms-of-use violations, such as artificia

Last year, this blog raised concerns regarding the TCCWNA, its growing popularity with plaintiffs’ lawyers and the implications for online retailers. At a high level, the TCCWNA is a New Jersey consumer protection law that focuses on contractual terms (including online terms of service) governing transactions between sellers/service providers and New Jersey consumers. It prohibits sellers/service providers from including certain common provisions in their contracts with New Jersey consumers, and provides aggrieved New Jersey consumers with the right to recover from the seller/service provider a civil penalty of not less than $100 per violation. The TCCWNA applies even if the relevant contractual terms are expressly governed by the laws of a state other than New Jersey.The application of the TCCWNA to online retailors initially looked to be a boon to the plaintiff’s bar, based on a simple formula:  (1) assemble a class comprised of New Jersey consumers who have used an online retailer’s website that has terms of service alleged to be in violation of the TCCWNA; (2) file a class action lawsuit in New Jersey state or federal court; and (3) collect at least $100 for each affected New Jersey consumer.However, this approach now appears to have hit a serious speedbump, at least with respect to TCCWNA disputes filed or removed to federal court.In a March 29, 2017 decision in <a href="http://law.justia.com/cases/federal/district-courts/new-jersey/njdce/3:2016cv02167/332108/26/" target="_blank" rel="noopener">Rubin v. J. Crew Group, Inc.</a>, Judge Wolfson of the U.S. Court for the District of New Jersey dismissed a putative TCCWNA class action claim against the retailor J. Crew. The plaintiff claimed that the terms and conditions on J. Crew’s retail website included a limitation of liability provision that violated the TCCWNA. The plaintiff, however, could not point to specific harm that she suffered as a result of the alleged TCCWNA violation. Instead, she argued that the violation of her rights under New Jersey law is, itself, the underlying harm.Judge Wolfson rejected the plaintiff’s argument. Relying on the U.S. Supreme Court’s <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltdcce7bda080639e7/62731974deee7329767e7760/160516spokeo.pdf" target="_blank" rel="noopener">recent decision</a> in <a href="https://supreme.justia.com/cases/federal/us/578/13-1339/" target="_blank" rel="noopener">Spokeo, Inc. v. Robins</a>, Judge Wolfson held that a bare violation of a right granted by a statute is not enough under Article III of the U.S. Constitution to provide a plaintiff with standing to sue in federal court; in order to have standing, the violation must result in a concrete harm. Because the plaintiff could not show that she suffered any concrete harm as a result of the offending provisions in J. Crew’s online terms and conditions, the court dismissed her claim.Judge Wolfson also took the opportunity to directly address the recent flood of TCCWNA lawsuits against online retailors:The Court is aware that there are numerous class actions filed in this district based upon similar TCCWNA violations alleged in this case. While the intent of the New Jersey legislature in enacting the TCCWNA is to provide additional protections for consumers in this state from unfair business practices, the passage of the Act is not intended, however, for litigation-seeking plaintiffs and/or their counsel to troll the internet to find potential violations under the TCCWNA without any underlying harm. In such instances, standing would be lacking.Not long after the J. Crew ruling, Judge Hillman, also a judge of the U.S. Court for the District of New Jersey, echoed Judge Wolfson’s decision in a separate case. The fact pattern in <a href="http://law.justia.com/cases/federal/district-courts/new-jersey/njdce/1:2016cv05016/336530/16/" target="_blank" rel="noopener">Murray v. Lifetime Brands, Inc.</a> is similar to that in J. Crew: the plaintiff brought a putative class action suit against an online retailer alleging that the retailer’s online Terms of Use violate the TCCWNA. Noting that this case is one of several putative class action suits filed in District Court of New Jersey “all asserting basically the same claim against various sellers,” Judge Hillman dismissed the plaintiff’s claim under Spokeo for failure to plead that the plaintiff suffered a concrete harm from the online retailer’s purported violation of the TCCWNA.Although the J. Crew and Lifetime Brands decisions should come as some relief for online retailers, it remains important for retailers to be aware of the TCCWNA and to determine whether they are in compliance with the statute. Notably, the reasoning behind these recent retailer-friendly decisions may not be applicable to TCCWNA actions brought in New Jersey state courts, because Spokeo’s concrete harm requirement is tied to jurisdictional limits placed on federal courts under Article III of the U.S. Constitution, and thus specific to actions pursued in federal courts.Online retailers who are subject to suit in New Jersey state courts, and who do not succeed in removing such actions to federal court, could still be subject to the potentially substantial civil penalties afforded to plaintiffs under the TCCWNA. Accordingly, it is still too early to tell whether federal court decisions like J. Crew and Lifetime Brands, Inc. will ultimately reduce the volume of TCCWNA lawsuits brought against unsuspecting e-commerce providers, or merely shift the action primarily to New Jersey state courts going forward.*        *       *For our earlier Socially Aware article on New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act, please see Controversial New Jersey Consumer Protection Law Creates a Potential “Gotcha” for E-Commerce Companies. For more on the U.S. Supreme Court’s Spokeo decision, please see the following Morrison & Foerster client alert: <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltdcce7bda080639e7/62731974deee7329767e7760/160516spokeo.pdf" target="_blank" rel="noopener">The Supreme Court’s Spokeo Decision: Concrete Shoes for Consumer Class Actions?</a>

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E-tailers Rejoice as Decisions Limit Suits in Federal Court for Alleged Violations of N.J.’s Controversial Consumer Protection Law

E-tailers Rejoice as Decisions Limit Suits in Federal Court for Alleged Violations of N.J.’s Controversial Consumer Protection Law

Last year, this blog raised concerns regarding the TCCWNA, its growing popularity with plaintiffs’ lawyers and the implications for online retailers. At a high 

A New York State senator has introduced a bill that would make posting footage of a crime to social media with the intention of glorifying violence or becoming famous punishable by up to four years in prison and fines.Instagram hit the <a href="https://techcrunch.com/2017/04/26/instagram-700-million-users/" target="_blank" rel="noopener">700-million-user</a> mark.<a href="http://www.adweek.com/digital/social-media-advertising-spend-was-up-60-year-over-year-in-q1-report/" target="_blank" rel="noopener">Brands spent 60% more on social media advertising</a> in the first quarter of 2017 than they did in the same quarter last year, a new report shows.But savvy brands will do more to leverage social media than just buy advertising, according to a columnist in Entrepreneur. <a href="https://www.entrepreneur.com/article/288952" target="_blank" rel="noopener">Chatbots that can interact with customers on private messaging networks and in connection with in-app purchasing</a> are the next big things.And while we’re on the subject of private messaging networks, <a href="https://www.cnet.com/news/tumblr-is-inviting-you-and-your-friends-to-chill-at-the-cabana/" target="_blank" rel="noopener">Tumblr is launching its own version, called Cabana</a>. It encourages six friends to “hang out” and watch YouTube videos together.Pointing out the inadequacy of many celebrities’ methods of disclosing their status as paid endorsers of the products they promote on Instagram, the <a href="http://fortune.com/2017/04/20/ftc-instagram/" target="_blank" rel="noopener">FTC sent a letter to 90 high-profile social media users</a> that provides some guidance on how to fulfill the <a href="https://www.sociallyawareblog.com/2014/12/03/ftc-enforcement-action-confirms-that-ad-disclosure-obligations-extend-to-endorsements-made-in-social-media/" target="_blank" rel="noopener">endorsement guides</a>’ requirement that sponsored posts be identified in a “clear and conspicuous” way.<a href="http://www.adweek.com/digital/linkedin-060717-changes-privacy-policy-user-agreement/" target="_blank" rel="noopener">LinkedIn has updated its terms of service</a> and privacy policy, reportedly to make way for new platform features such as identifying when other LinkedIn members are in physical proximity to you, making available “productivity bots” to assist you in interacting with members of your LinkedIn network and allowing third-party services to display your LinkedIn profile to their users.<a href="http://www.cnbc.com/2017/04/18/facial-recognition-is-coming-to-us-airports-fast-tracked-by-trump.html" target="_blank" rel="noopener">Facial recognition systems will soon be used to identify visa holders</a> as they leave the United States, raising civil rights questions.The U.S. population’s <a href="https://www.nytimes.com/2017/04/13/us/political-polarization-internet.html?rref=collection%2Fsectioncollection%2Ftechnology&action=click&contentCollection=technology&region=stream&module=stream_unit&version=latest&contentPlacement=7&pgtype=sectionfront&_r=0" target="_blank" rel="noopener">political polarization isn’t a result of the rise of social media</a>, a new working paper issued by the National Bureau of Economic Research suggests, because hyper-partisanship is most prevalent among older Americans who are less likely than other Americans to consume media online.

Social Links: Social ad spend soars; the FTC’s special message to “influencers”; LinkedIn changes terms of use

A New York State senator has introduced a bill that would make posting footage of a crime to social media with the intention of glorifying violence or becoming 

Social Links: Social ad spend soars; the FTC’s special message to “influencers”; LinkedIn changes terms of use