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In Ganske v. Mensch, a defamation suit stemming from a “battle by Tweet,” a federal district court in New York held that the allegedly defamatory statements in the defendant’s Tweet were nonactionable statements of opinion and dismissed the case. The case illustrates that courts in such “Twibel” (Twitter + libel) cases may view Tweets and similar statements on social media as informal and “freewheeling” in nature, which reasonable readers would understand to be expressions of opinion rather than statements of fact.

Charles Ganske, a former Associated Press (AP) journalist, sued Louise Mensch, a blogger and former member of the British Parliament, for defamation and tortious interference. Ganske argued that Mensch defamed him and interfered with his employment at AP based on a single Tweet that she posted on July 27, 2018, by which she “interjected herself” into a Twitter thread between Ganske and another Twitter user with the handle @Conspirator0.

Mensch’s Tweet from her @patribotics Twitter account stated: “To this xenophobic tweet of yours, sir, I fear we must tell @APCentral ‘citation needed’. You clearly personally spread Russian bots on your own site; and @Conspirator0 work on it has sent you into a frenzy of tweeting and trying to discredit him.”

Ganske claimed that Mensch’s Tweet contained false and defamatory statements about him because neither he nor his Tweets were xenophonic and he never spread Russian bots on any website. He also alleged that Mensch deliberately tagged his employer, AP, and published the Tweet to @APCentral in order to interfere with his employment. Ganske’s employment with AP was later terminated, and Ganske argued that this was the result of Mensch’s Tweet.
Continue Reading S.D.N.Y. Dismisses Defamation Case Arising Out of “Battle by Tweet”

A federal district court judge in Brooklyn, N.Y., dismissed the complaint in a case filed by Genius, a platform that lets users share and annotate lyrics, holding that the plaintiff’s claims were preempted by copyright law. The suit alleged that Google had stolen from Genius transcriptions of song lyrics, and included those song lyrics

In Elliott v. Donegan, a federal district court in New York held that Section 230 of the Communications Decency Act does not warrant the dismissal of a defamation claim where the plaintiff’s complaint did not “foreclose[] the possibility that Defendant created or developed the allegedly unlawful content.” The content at issue was a “publicly accessible, shared Google spreadsheet” titled “Shitty Media Men” that the defendant Moira Donegan had started containing a list of men in the media business who had allegedly committed some form of sexual violence.

Donegan, a media professional, circulated the list via email and other electronic means to women in her industry in an effort to share information about “people to avoid.” The list included the headings “NAME, AFFILIATION, ALLEGED MISCONDUCT, and NOTES.” It also included a disclaimer at the top of the spreadsheet stating, “This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt.”

After Donegan first published the list, “Shitty Media Men” assumed a life of its own. The spreadsheet went viral and a flurry of allegations were swiftly submitted. Soon, 70 men were named and major media outlets were preparing to publish related stories. As a result, the defendant took the spreadsheet offline about 12 hours after she posted it.
Continue Reading EDNY Refuses to Dismiss on § 230 Grounds in “Shitty Media Men” Defamation Case

Online service providers typically seek to mitigate risk by including arbitration clauses in their user agreements. In order for such agreements to be effective, however, they must be implemented properly. Babcock vs. Neutron Holdings, Inc., a recent Southern District of Florida case involving a plaintiff who was injured while riding one of the defendant’s Lime e-scooters, illustrates that courts will closely scrutinize the details of how an online contract is presented to users to determine whether or not it is enforceable.
Continue Reading Sweating the Details: Court Analyzes User Interface to Uphold Online Arbitration Clause

As we have noted many times in prior articles, courts often refuse to enforce “browsewrap” agreements where terms are presented to users merely by including a link on a page or screen without requiring affirmative acceptance. Courts typically look more favorably on “clickwrap” agreements where users agree to be bound by, for example, checking a box or clicking an “I accept” button.

The problem is that many implementations of online contracts do not fit neatly into one category or the other. The result is that courts, seemingly unable to resist the siren song of the “-wrap” terminology, find themselves struggling to shoehorn real-life cases into the binary clickwrap/browsewrap rubric, and often resort to inventing new terminology such as the dreaded “hybridwrap.”

HealthplanCRM, LLC v. Avmed, Inc., a case out of the Western District of Pennsylvania, illustrates this phenomenon. Plaintiff Cavulus licensed certain CRM software to defendant AvMed. AvMed decided to replace Cavulus software with a different CRM product and engaged defendant NTT to assist AvMed in transitioning its data to the successor product. Cavulus alleged, among other things, that NTT misappropriated its trade secrets in the course of doing this work. Cavulus sought to compel NTT to arbitrate these claims based on an arbitration clause contained in an “End-User Agreement” that was referenced in a link on the log-in page of the Cavulus software.
Continue Reading Court Discovers Rare and Elusive “Enforceable Browsewrap”

China’s “internet police,” who coordinate online censorship, have become especially busy since the coronavirus outbreak.

Inspired by homicides that were precipitated by social media posts created by one group of teenagers to incite another, a Florida bill would allow law enforcement to charge juveniles with a misdemeanor for posting photos of themselves with firearms online.

A federal district court in New York held that a photographer failed to state a claim against digital-media website Mashable for copyright infringement of a photo that Mashable embedded on its website by using Instagram’s application programming interface (API). The decision turned on Instagram’s terms of use.

Mashable initially sought a license from the plaintiff, a professional photographer named Stephanie Sinclair, to display a photograph in connection with an article the company planned to post on its website, mashable.com. The plaintiff refused Mashable’s offer, but Mashable, nevertheless, embedded the photograph on its website through the use of Instagram’s API.

Instagram’s terms of use state that users grant Instagram a sublicensable license to the content posted on Instagram, subject to Instagram’s privacy policy. Instagram’s privacy policy expressly states that content posted to “public” Instagram accounts is searchable by the public and available for others to use through the Instagram API.
Continue Reading S.D.N.Y.: Public Display of Embedded Instagram Photo Does Not Infringe Copyright

In a move that might be part of a settlement that YouTube has entered into with the Federal Trade Commission, the video-sharing site said it will ban “targeted” advertisements on videos likely to be watched by children. Because targeted ads rely on information collected about the platform’s users, displaying such ads to children

The high-end skincare brand Sunday Riley has settled lawsuits filed by the Federal Trade Commission claiming that the brand’s founder encouraged employees of her eponymous company to set up accounts “under different identities” on the cosmetics retail site Sephora.com and leave positive reviews for Sunday Riley’s products. The FTC filed the complaints after the agency

As regular readers of Socially Aware already know, there are many potential traps for companies that use photographs or other content without authorization from the copyright owners. For example, companies have faced copyright infringement claims based on use of photos pulled from Twitter. Claims have even arisen from the common practice of embedding tweets on blogs and websites, and we have seen a flurry of stories recently about photographers suing celebrities for posting photos of themselves.

Now there is another potential source of liability: the appearance of murals in the background of photographs used in advertisements. In at least two recent cases, automotive companies have faced claims of copyright infringement from the creators of murals painted on buildings that appear in the backgrounds of ads.

Most recently, in a federal district court in the Eastern District of Michigan, Mercedes Benz sought a declaratory judgment that its photographs, taken in Detroit (with permits from the city) and later posted on Instagram, did not infringe the copyrights of three defendants whose murals appeared in the backgrounds of those photographs.
Continue Reading Insta-Mural Infringement: Public Art in Instagram Ad Leads to Copyright Claim