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 Alejandro Gutierrez v. FriendFinder Networks Inc. 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.
Continue Reading Just Browsing: District Court Finds Browsewrap Agreement Enforceable

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

A recent Second Circuit decision makes clear that the safe harbor that social media and other Internet companies enjoy under Section 230 of the Communications Decency Act broadly applies to a wide variety of claims.

When you think about the Section 230 safe harbor, don’t just think defamation or other similar state law claims. Consider whether the claim—be it federal, state, local, or foreign—seeks to hold a party that publishes third-party content on the Internet responsible for publishing the content. If, after stripping it all down, this is the crux of the cause of action, the safe harbor should apply (absent a few statutory exclusions discussed below). The safe harbor should apply even if the party uses its discretion as a publisher in deciding how best to target its audience or to display the information provided by third parties.

In 2016, Facebook was sued by the estates of four U.S. citizens who died in terrorist attacks in Israel and one who narrowly survived but was grievously injured. The plaintiffs claimed that Facebook should be held liable under the federal Anti-Terrorism Act and the Justice Against Sponsors of Terror Act, which provide a private right of action against those who aid and abet acts of international terrorism, conspire in furtherance of acts of terrorism, or provide material support to terrorist groups. The plaintiffs also asserted claims arising under Israeli law.
Continue Reading CDA Section 230 Immunizes Platform From Liability for Friend and Content Suggestion Algorithms

A federal district court dismissed a case against supermodel Gigi Hadid for posting to Instagram a photo of herself that was taken by a paparazzo. The reason for the court’s decision was simple: The party claiming copyright ownership of the photo failed to get it registered with the U.S. Copyright Office, a prerequisite to filing

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” 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 noted previously, 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. 
Continue Reading Court Holds that Arbitration Clause in “Hybridwrap” Terms Is Unenforceable

As we noted in our recent post on the Second Circuit case Herrick v. Grindr, LLC, Section 230 of the Communications Decency Act (CDA) continues to provide immunity to online intermediaries from liability for user content, despite pressure from courts and legislatures seeking to chip away at this safe harbor. The D.C. Circuit case Marshall’s Locksmith Service Inc. v. Google, LLC serves as another example of Section 230’s resiliency.

In Marshall’s Locksmith, the D.C. Circuit affirmed the dismissal of claims brought by 14 locksmith companies against search engine operators Google, Microsoft and Yahoo! for allegedly conspiring to allow “scam locksmiths” to inundate the online search results page in order to extract additional advertising revenue.

The scam locksmiths at issue published websites targeting heavily populated locations around the country to trick potential customers into believing that they were local companies. These websites provided either a fictitious address or no address at all, and falsely claimed that they were local businesses. The plaintiffs asserted various federal and state law claims against the search engine operators relating to false advertising, conspiracy and fraud based on their activities in connection with the scam locksmiths’ websites.
Continue Reading D.C. Circuit Holds that Section 230 Locks Out Locksmiths

In March, Socially Aware reported on a lawsuit involving several prominent news outlets’ publication of a photo of NFL quarterback Tom Brady on Twitter. The case had the potential to upend a copyright and Internet-law rule that, in the words of a Forbes columnist, “media companies had viewed as settled law for over a

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 as

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.
Continue Reading Appeals Court Again Upholds Section 230 Protections in Case Against Grindr

A new law in Australia makes a social media company’s failure to remove “abhorrent violent material” from its platform punishable by significant fines. The law also states that the executives at social media companies who fail to remove the content could be sentenced to jail time.

The European Parliament voted to approve the Copyright Directive,