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A federal district court in California has added to the small body of case law addressing whether it’s permissible for one party to use another party’s trademark as a hashtag. The court held that, for several reasons, the 9th Circuit’s nominative fair use analysis did not cover one company’s use of another company’s trademarks

Often hailed as the law that gave us the modern Internet, Section 230 of the Communication Decency Act generally protects online platforms from liability for content posted by third parties. Many commentators, including us here at Socially Aware, have noted that Section 230 has faced significant challenges in recent years. But Section 230 has proven resilient (as we previously noted here and here), and that resiliency was again demonstrated by the Second Circuit’s recent opinion in Herrick v. Grindr, LLC.

As we noted in our prior post following the district court’s order dismissing plaintiff Herrick’s claims on Section 230 grounds, the case arose from fake Grindr profiles allegedly set up by Herrick’s ex-boyfriend. According to Herrick, these fake profiles resulted in Herrick facing harassment from over 1,000 strangers who showed up at his door over the course of several months seeking violent sexual encounters.
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As consumers increasingly communicate and interact through social media platforms, courts have had to grapple with how to apply existing laws to new ways of communicating, as well as disseminating and using content. Sometimes, however, traditional legal standards apply to these new platforms in a straightforward manner. At least, that is what the court found in Dancel v. Groupon, Inc., a putative class action against Groupon, Inc., alleging that Groupon’s use of images originally posted on the social media site Instagram violated users’ rights under the Illinois Right of Publicity Act (IRPA).

Groupon, a website that offers consumers deals on goods and services, built a widget intended to provide its users a window into businesses for which Groupon offered deals. The widget used Instagram’s API to find photos that Instagram users had taken at particular locations, and then displayed those images under the deals offered on Groupon’s own website.  When a visitor to the Groupon page hovered his or her mouse over the Instagram images, the Groupon user could see the username of the person who posted the photo on Instagram and an associated caption, if there was one.

Dancel, who maintains an Instagram account with the username “meowchristine,” took a selfie of herself and her boyfriend in front of a restaurant and posted it on Instagram with a tag noting the name of the restaurant. Groupon later displayed this photograph, among others, in connection with its deal for the same restaurant.
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In what is being described as “the first settlement to deem such sales illegally deceptive,” New York Attorney General Letitia James has entered into a settlement with a company that had been selling fake followers, likes and views on several social media platforms. Read how much revenue the sales were generating for the

As we have noted previously, the California Court of Appeal’s Hassell v. Bird decision in 2016 upholding an injunction requiring Yelp to remove certain user reviews was discouraging to social media companies and other online intermediaries, as well as to fans of Section 230 of the Communications Decency Act and proponents of Internet free speech generally. The recent California Supreme Court decision reversing the Court of Appeal was, therefore, met with considerable relief by many in the Internet community.

But while the California Supreme Court’s decision is undoubtedly a significant development, it would be premature for Section 230 fans to break out the champagne; the “most important law protecting Internet speech” remains under attack from many directions, and this recent decision is far from definitive. But before getting into the details of the Hassell v. Bird opinion, let’s step back and consider the context in which the case arose.

Before Section 230: A Wild, Wild Web

A fundamental issue for social media platforms and other online intermediaries, including review sites like Yelp, is whether a company may be held liable when its customers engage in bad behavior, such as posting defamatory content or content that infringes the IP rights of third parties. Imagine if Facebook, Twitter, YouTube, and Yelp were potentially liable for defamation every time one of their users said something nasty (and untrue) about another user on their platforms. It would be hard to imagine the Internet as we currently know it existing if that were the case.
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Just over a month after the EU General Data Protection Regulation (GDPR) took effect, California passed its own sweeping privacy legislation, the California Consumer Privacy Act of 2018.

The Act stands to affect countless global companies doing business in California, many of which recently devoted extensive time and resources to GDPR compliance. These companies must

An advertising executive who lost his job after being named on an anonymous Instagram account is suing the now-defunct account for defamation. The suit names as defendants not only the account—Diet Madison Avenue, which was intended to root out harassment and discrimination at ad agencies—but also (as “Jane Doe 1,” “Jane Doe 2,” et cetera)

Finding that President Trump’s Twitter feed constitutes a public forum, a federal judge in New York City held that it’s a First Amendment violation when the President or one of his assistants blocks a Twitter user from viewing or responding to one of the President’s tweets. As the New York Times points out, the decision

Based on copyright infringement, emotional distress and other claims, a federal district court in California awarded $6.4 million to a victim of revenge porn, the posting of explicit material without the subject’s consent. The judgment is believed to be one of the largest awards relating to revenge porn. A Socially Aware post that we wrote