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. Continue Reading Section 230 Survives to Fight Another Day Following California Supreme Court Decision

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

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) several of the anonymous people who ran it. Whether Instagram will ultimately have to turn over the identities of the users behind the account will turn on a couple of key legal issues.

A bill recently passed by the New York State Senate makes it a crime for “a caretaker to post a vulnerable elderly person on social media without their consent.” At least one tech columnist thinks the legislation is so broadly worded that it violates the U.S. Constitution. That might be so, but—in light of several news reports about this unfortunate form of elder abuse over the last few years—that same columnist may not be correct about the bill likely having been passed in response to a one-time incident.

A new law in Egypt that categorizes social media accounts and blogs with more than 5,000 followers as media outlets allows the government in that country to block those accounts and blogs for publishing fake news. Some critics aren’t buying the government’s explanation for the law’s implementation, however, and are suggesting it was inspired by a very different motivation.

Critics of the most recent version of the European Copyright Directive’s Article 13, which the European Parliament rejected in early July, brought home their message by arguing that it would have prevented social media users from uploading and sharing their favorite memes.

In a criminal trial, social media posts may be used by both the prosecution and the defense to impeach a witness but—as with all impeachment evidence—the posts’ use and scope is entirely within the discretion of the trial court. The New York Law Journal’s cybercrime columnist explains.

To thwart rampant cheating by high school children, one country shut down the Internet nationwide during certain hours and had social media platforms go dark for the whole exam period.

Snapchat now allows users to unsend messages. Here’s how.

Employees of Burger King’s Russian division recently had to eat crow for a tasteless social media campaign that offered women a lifetime supply of Whoppers as well as three million Russian rubles ($47,000) in exchange for accomplishing a really crass feat.

We’ve all heard of drivers experiencing road rage, but how about members of the public experiencing robot rage? According to a company that supplies cooler-sized food-delivery robots, its’s a thing.

 

 

 

 

 

This is the famous Monkey selfie.

I confess: I have mixed emotions regarding the iconic “monkey-selfie” photo and all the hubbub it has created.

Don’t get me wrong; I think monkeys are wonderful, and the photo deserves its iconic status. Who can resist smiling while viewing that famous image of Naruto, the macaque monkey who allegedly snapped the self-portrait?

And the monkey selfie has been a boon to legal blogs. Our own posts regarding the photo have been among the most viewed content on Socially Aware (one of our posts prompted a call from my mother, who felt strongly that Naruto should be entitled to a copyright in the photo).

But, let’s face it, in an era where technology disruption is generating so many critical and difficult copyright issues, the law relevant to the monkey selfie is pretty straightforward, at least in the United States. As the U.S. Copyright Office states in its Compendium II of Copyright Office Practices, for a work to be copyrightable, it must “owe its origin to a human being,” and that materials produced solely by nature, by plants or by animals do not count. U.S. courts have reached the same conclusion. (Although I note that David Slater, the nature photographer whose camera was used to take the photo, claims that he—and not the macaque—is in fact the author of the photo for copyright purposes.) Continue Reading Monkey-Selfie Case Returns—To Court & (Maybe) a Theater Near You

A recent German Federal Court of Justice decision may have a significant impact on content providers’ business models. Offering software that allows users to block advertising does not constitute an unfair commercial practice. Even providing advertisers with the option to pay for showing certain ads—a practice known as whitelisting—does not violate the unfair competition rules.

Issued on April 19, the decision involved a legal dispute between the ad blocking software provider Eyeo GmbH and the online-content provider Axel Springer (which also happens to be Germany’s largest publishing house). The decision overruled the Higher Regional Court of Cologne’s previous decision, which, like the Federal Court of Justice, did not categorize Eyeo’s offer of its ad blocking product as an unfair competition practice, but did categorize paid whitelisting as unlawful.

Axel Springer is now left with the final option of taking the case to the Federal Constitutional Court.

Background and core arguments of the parties

Eyeo, a German software company, offers the product AdBlock Plus, which allows Internet users to block ads online. The product became the most popular ad blocking software in Germany and abroad, with over 500 million downloads and 100 million users worldwide.

In 2011, the company started to monetize its product by offering a whitelisting service that gives advertisers the option to pay to show their ads. To get on Eyeo’s list of companies whose ads are not blocked, advertisers have to comply with Eyeo’s “acceptable advertising” conditions and share their ad revenue with the company. The conditions dictate the advertising’s features such as its placement, size, and—in the case of text advertising—color. Continue Reading German Federal Court: Unfair Competition Law No Basis to Ban Ad Blocking and Whitelisting

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 back in 2014 explains the difficulties of using causes of action like copyright infringement—and state laws—as vehicles for fighting revenge porn.

The highest court in New York State held that whether or not a personal injury plaintiff’s Facebook photos are discoverable does not depend on whether the photos were set to “private,” but rather “the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case.”

A federal district court held that Kentucky’s governor did not violate the free speech rights of two Kentucky citizens when he blocked them from commenting on his Facebook page and Twitter account. The opinion underscores differences among courts as to the First Amendment’s application to government officials’ social media accounts; for example, a Virginia federal district court’s 2017 holding reached the opposite conclusion in a case involving similar facts.

Having witnessed social media’s potential to escalate gang disputes, judges in Illinois have imposed limitations on some juvenile defendants’ use of the popular platforms, a move that some defense attorneys argue violates the young defendants’ First Amendment rights.

A bill proposed by California State Sen. Bob Hertzberg would require social media platforms to identify bots—automated accounts that appear to be owned by real people but are actually computer programs capable of simulating human dialog. Bots can spread a message across social media faster and more widely than would be humanly possible, and have been used in efforts to manipulate public opinion.

This CIO article lists the new strategies, job titles and processes that will be popular this year among businesses transforming into data-driven enterprises.

A solo law practitioner in Chicago filed a complaint claiming defamation and false light against a former client who she alleges posted a Yelp review calling her a “con artist” and a “legal predator”  after, allegedly pursuant to the terms of his retainer, she billed $9,000 to his credit card for a significant amount of legal work.

Carnival Cruise Line put up signs all over the hometown of the 15-year-old owner of the Snapchat handle @CarnivalCruise in order to locate him and offer him and his family a luxurious free vacation in exchange for the transfer of his Snapchat handle—and the unusual but innovate strategy paid off. Who knew that old-school billboards could be so effectively used for one-on-one marketing?

Does a search engine operator have to delist websites hosting, without authorization, your trade secret materials or other intellectual property? The answer may depend on where you sue—just ask Google. The U.S. District Court for the Northern District of California recently handed the company a victory over plaintiff Equustek Solutions Inc. in what has turned into an international battle where physical borders can have very real consequences on the Internet.

The dispute began when a rival company, Datalink, allegedly misappropriated Equustek’s trade secrets in developing competing products. Equustek also alleged that Datalink misled customers who thought they were buying Equustek products. In 2012, Equustek obtained numerous court orders in Canada against Datalink. Datalink refused to comply, and Canadian court issued an arrest warrant for the primary defendant, who has yet to be apprehended. Continue Reading The Coming Border Wars: U.S. Court Decision Refusing to Enforce Canadian Court Order Highlights the Growing Balkanization of the Internet

Section 230 of the Communications Decency Act continues to act as one of the strongest legal protections that social media companies have to avoid being saddled with crippling damage awards based on the misdeeds of their users.

The strong protections afforded by Section 230(c) were recently reaffirmed by Judge Caproni of the Southern District of New York, in Herrick v. Grindr. The case involved a dispute between the social networking platform Grindr and an individual who was maliciously targeted through the platform by his former lover. For the unfamiliar, Grindr is mobile app directed to gay and bisexual men that, using geolocation technology, helps them to connect with other users who are located nearby.

Plaintiff Herrick alleged that his ex-boyfriend set up several fake profiles on Grindr that claimed to be him. Over a thousand users responded to the impersonating profiles. Herrick’s ex‑boyfriend, pretending to be Herrick, would then direct the men to Herrick’s’ work-place and home. The ex-boyfriend, still posing as Herrick, would also tell these would-be suitors that Herrick had certain rape fantasies, that he would initially resist their overtures, and that they should attempt to overcome Herrick’s initial refusals. The impersonating profiles were reported to Grindr (the app’s operator), but Herrick claimed that Grindr did not respond, other than to send an automated message. Continue Reading Lawsuit Against Online Dating App Grindr Dismissed Under Section 230 of the Communications Decency Act

In a decision that has generated considerable controversy, a federal court in New York has held that the popular practice of embedding tweets into websites and blogs can result in copyright infringement. Plaintiff Justin Goldman had taken a photo of NFL quarterback Tom Brady, which Goldman posted to Snapchat. Snapchat users “screengrabbed” the image for use in tweets on Twitter. The defendants—nine news outlets—embedded tweets featuring the Goldman photo into online articles so that the photo itself was never hosted on the news outlets’ servers; rather, it was hosted on Twitter’s servers (a process known as “framing” or “inline linking”). The court found that, even absent any copying of the image onto their own servers, the news outlets’ actions had resulted in a violation of Goldman’s exclusive right to authorize the public display of his photo.

If legislation recently introduced in California passes, businesses with apps or websites requiring passwords and enabling Golden State residents younger than 18 to share content could be prohibited from asking those minors to agree to the site’s or the app’s terms and conditions of use.

After a lawyer was unable to serve process by delivering court documents to a defendant’s physical and email addresses, the Ontario Superior Court granted the lawyer permission to serve process by mailing a statement of claim to the defendant’s last known address and by sending the statement of claim through private messages to the defendant’s Instagram and LinkedIn accounts. This is reportedly the first time an Ontario court has permitted service of process through social media. The first instance that we at Socially Aware heard of a U.S. court permitting a plaintiff to serve process on a domestic, U.S.-based defendant through a social media account happened back in 2014.

Videos that impose celebrities’ and non-famous people’s faces onto porn performers’ to produce believable videos have surfaced on the Internet, and are on the verge of proliferating. Unlike the non-consensual dissemination of explicit photos that haven’t been manipulated—sometimes referred to as “revenge porn”—this fake porn is technically not a privacy issue, and making it illegal could raise First Amendment issues.

By mining datasets and social media to recover millions of dollars lost to tax fraud and errors, the IRS may be violating common law and the Electronic Communications Privacy Act, according to an op-ed piece in The Hill.

A woman is suing her ex-husband, a sheriff’s deputy in Georgia, for having her and her friend arrested and briefly jailed for posting on Facebook about his alleged refusal to drop off medication for his sick children on his way to work. The women had been charged with “criminal defamation of character” but the case was ultimately dropped after a state court judge ruled there was no basis for the arrest.

During a hearing in a Manhattan federal court over a suit brought by seven Twitter users who say President Trump blocked them on Twitter for having responded to his tweets, the plaintiffs’ lawyer compared Twitter to a “virtual town hall” where “blocking is a state action and violates the First Amendment.” An assistant district attorney, on the other hand, analogized the social media platform to a convention where the presiding official can decide whether or not to engage with someone. The district court judge who heard the arguments refused to decide the case on the spot and encouraged the parties to settle out of court.

Have your social media connections been posting headshots of themselves alongside historical portraits of people who look just like them? Those posts are the product of a Google app that matches the photo of a person’s face to a famous work of art, and the results can be fun. But not for people who live in Illinois or Texas, where access to the app isn’t available. Experts believe it’s because laws in those states restrict how companies can use biometric data.

The stock market is apparently keeping up with the Kardashians. A day after Kim Kardashian’s half-sister Kylie Jenner tweeted her frustration with Snapchat’s recent redesign, the company’s market value decreased by $1.3 billion.

In February the U.S Supreme Court heard oral arguments in United States v. MicrosoftAt issue is Microsoft’s challenge to a warrant issued by a U.S. court directing it to produce emails stored in Ireland. With implications for government investigations, privacy law, and multi-national tech companies’ ability to compete globally, the case has attracted significant attention.

Over the course of the oral arguments it became clear that rendering a decision in United States v. Microsoft would require the justices to choose between two less-than-satisfactory outcomes: denying the U.S. government access to necessary information, or potentially harming U.S. technology companies’ ability to operate globally.

The conundrum the justices face is largely due to the fact that the 1986 law at issue, the Stored Communications Act (SCA), never envisioned the kind of complex, cross-border data storage practices of today.

Find out more about the case and how recently introduced legislation known as the CLOUD Act could wind up superseding the Court’s decision in United States v. Microsoft by, among other things, clarifying the SCA’s applicability to foreign-stored data while also providing technology companies with a new vehicle for challenging certain orders that conflict with the laws of the country where data is stored.

Read my article in Wired.