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.

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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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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.

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Lawrence W. Gallick

Social Links: Statehouse v. Smartphone

Federal Court Enjoins California Teen Privacy Law . . . Again

All Your Sale Are Belong to Us - Mitigating IP and Payments Risk in In-Game Economies (Part II – User-Generated Content and In-Game Payment Models)

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A court in the Southern District of Ohio has issued a preliminary injunction against enforcement of the Social Media Parental Notification Act, an Ohio law that would require social media platforms to obtain parental consent for users under 16. NetChoice LLC, an industry group whose membership includes a number of large social media companies, challenged the legislation on behalf of its members and their users.The Act would impose age verification measures on social media platforms and require parental consent for users under the age of 16. The Ohio law applies specifically to platforms that target children or are likely to be accessed by children, which is determined based on the following factors:(1) Subject matter;(2) Language;(3) Design elements;(4) Visual content;(5) Use of animated characters or child-oriented activities and incentives;(6) Music or other audio content;(7) Age of models;(8) Presence of child celebrities or celebrities who appeal to children;(9) Advertisements;(10) Empirical evidence regarding audience composition; and(11) Evidence regarding the intended audience.Additionally, the Act makes exceptions for product review sites and “established and widely recognized” news sites with commenting functionality. Penalties for non-compliance include fines of (i) up to $1000 per day for the first 60 days of noncompliance; (ii) up to an additional $5000 per day for days 61–90; and (iii) up to an additional $10,000 per day for days 91 and beyond. While aimed at protecting minors online, the legislation raises serious concerns about free speech, vagueness, and compliance burdens on digital platforms.NetChoice, a trade association representing online businesses, filed a motion for a preliminary injunction against Ohio Attorney General Dave Yost, arguing that the Act violates the First and Fourteenth Amendment rights of both NetChoice’s members and their users. NetChoice contended that the law unduly restricts freedom of expression and the right to access information on the internet. Moreover, NetChoice argued that the law is vague and would cause some companies to needlessly spend large amounts of money to comply with a law which may not even apply to them.The court first determined that NetChoice had standing to bring claims on behalf of both itself and its members, based on economic harms to its members as well as constitutional harms, such as the chilling effect on free speech if the court did not hear NetChoice’s claims. Next, the court scrutinized the Act through the lens of both the First and Fourteenth Amendments, considering its implications for free speech and the potential harm it posed to social media platforms and their users.1. Strict Scrutiny and Content Based Restrictions: The court determined that the Act was subject to strict scrutiny, the highest standard of review, because it is “content based.” Strict scrutiny requires the government to show that a law uses a narrowly tailored approach to serve a compelling government interest. The Attorney General argued that, by applying to sites that “target children” or are “reasonably anticipated to be accessed by children,” the Ohio law was simply tailoring its application to platforms that pose a risk to minors’ privacy, health, and safety rather than targeting any particular content. The court held, however, that provisions of the law that applied to sites with certain features were inherently content based, since they conveyed a message about the community that the site intended to curate and foster. Moreover, the court pointed to the exceptions for “established” news sites and product review sites as obviously content based (as an example, the court asked why the law didn’t also include exceptions for book and film review sites). Therefore, the court determined that the Act selectively regulates speech and is subject to strict scrutiny review.2. Vagueness and Overbreadth: The court found the Act’s vagueness and broad application potentially chilled free speech, with unclear compliance requirements for platforms. For example, the Attorney General argued that the Ohio law is concerned with protecting minors from entering into terms of service that permit use of their personal data. The court noted, however, that the law is both overbroad because it completely blocks minors from these sites absent parental consent, and also underinclusive because it allows that “a child can still agree to a contract with the New York Times without their parent’s consent, but not with Facebook.” The Attorney General also recited a litany of potential psychological and real-world harms to children from use of certain social media sites, to which the court replied that the law “is a breathtakingly blunt instrument for reducing social media’s harm to children.” With respect to vagueness issues under the Fourteenth Amendment, the court pointed to the law’s “eyebrow-raising exception” for “established” and “widely recognized” media outlets and concluded that “[s]uch capacious and subjective language practically invites arbitrary application of the law.”3. Impact on Minors’ Rights: Highlighting the 2011 Supreme Court case, Brown v. Ent. Merchants Ass’n, which invalidated a California law prohibiting the sale of violent video games to minors, the court noted that the Ohio law does not enforce parental authority, as the Attorney General argued, but rather imposes governmental authority, subject to a parental veto. The court also made the converse point, that online platforms have a right to disseminate protected speech to both minors and adults.4. Balance of Equities and the Public Interest: After concluding that NetChoice had shown a strong likelihood of success on the merits and likelihood of irreparable harm, the court considered the final two preliminary injunction factors, whether the injunction would harm others and whether the public interest would be served by the injunction, noting that these two factors “merge when the government is a party.” While the Attorney General contended that the public interest would be served by allowing the law to go into effect and protect minors, the court was convinced by NetChoice’s argument that “the State has no interest in enforcing laws that are unconstitutional.” Accordingly, the court granted the preliminary injunction.This case is one of a number of recent and pending cases pitting legislative attempts to regulate social media platforms against the free speech rights and other constitutional rights of the platforms and their users. We will be following the case as it progresses, and will report back on any further developments.

Court Prohibits Ohio’s AG From Enforcing Social Media Parental Notification Act

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

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

Court Prohibits Ohio’s AG From Enforcing Social Media Parental Notification Act

A court in the Southern District of Ohio has issued a preliminary injunction against enforcement of the Social Media Parental Notification Act, an Ohio law that would require social media platforms to obtain parental consent for users under 16.

In a significant move toward enhancing transparency and trust in digital content, Meta <a href="https://about.fb.com/news/2024/02/labeling-ai-generated-images-on-facebook-instagram-and-threads/" target="_blank" dir="ltr">has announced</a> plans to introduce labeling for AI-generated images across Facebook, Instagram, and Threads. Nick Clegg, President of Global Affairs, highlighted the initiative as part of Meta’s commitment to lead with transparency in the rapidly evolving AI landscape.As artificial intelligence becomes increasingly integrated into content creation, distinguishing between human-generated and AI-generated materials <a href="https://www.npr.org/2024/01/26/1227091070/deepfakes-taylor-swift-images-regulation" target="_blank">has become more challenging</a>. Meta’s response involves collaboration with industry partners to establish common technical standards for identifying AI content, enabling users to recognize when images are “Imagined with AI.” This move is crucial as it extends beyond content created using Meta’s proprietary tools to also encompass content created using external AI technologies.Meta has already been labeling photorealistic images produced by its Meta AI feature. The new initiative will see these labels applied more broadly, marking a significant step toward more comprehensive transparency. The process involves detecting indicators of AI generation and applying visible labels across all supported languages on the platforms. The initiative is timely, coinciding with several important global elections, and aims to educate users about the origins of the content they consume.In addition to labeling, Meta is also working on AI content detection. The company is developing tools capable of identifying invisible markers such as IPTC metadata and invisible watermarks at scale. This approach not only aids in the robust identification of AI-generated content, but also assists other platforms in recognizing these markers, fostering a unified industry standard. Meta is uniquely situated to tackle these issues as it is both a developer of tools that produce generative AI content and the operator of the platforms on which much of that content is shared.However, Meta acknowledges the challenges ahead. The ability to label AI-generated audio and video content is still developing, prompting interim measures such as requiring users to disclose when sharing AI-generated videos or audios. Additionally, Meta is exploring technological solutions to prevent the removal of invisible watermarks, enhancing the integrity of AI-generated content.As AI-generated content becomes more prevalent, efforts to detect and label such content will be crucial to empower users to make informed decisions about the content they engage with and, more broadly, to prevent the spread of misinformation on social media platforms.

In a significant move toward enhancing transparency and trust in digital content, Meta has announced plans to introduce labeling for AI-generated images across Facebook, Instagram, and Threads. Nick Clegg, President of Global Affairs, highlighted the initiative as part of Meta’s commitment to lead with transparency in the rapidly evolving AI landscape.

Meta Announces AI Content Identification for Facebook, Instagram, and Threads

Recent <a href="https://www.cnn.com/2024/01/31/tech/big-tech-executives-senate-hearing-teens/index.html" target="_blank">Senate hearings</a> on social media safety have spotlighted the urgent need to protect children online, a concern that’s increasingly challenging the legal frameworks governing online platforms. Against this backdrop, the immunity that online platforms enjoy under <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" dir="ltr">Section 230 of the Communications Decency Act</a> remains a contentious issue.Here at Socially Aware, we have been tracking <a href="/topics/the-decline-and-fall-of-section-230" target="_self">the backlash against Section 230</a> for many years, and the pressure has only intensified recently. But to paraphrase Mark Twain, rumors of Section 230’s death have (so far) been greatly exaggerated, and the statute still provides platforms with robust protection in many cases, as illustrated by a <a href="https://caselaw.findlaw.com/court/us-dis-crt-cd-cal/115681333.html" target="_blank">recent opinion</a> out of the Central District of California dismissing claims against the dating app Grindr. This is <a href="/topics/appeals-court-upholds-section-230-protections-in-case-against-grindr" target="_self">not the first time</a> that Grindr has benefited from Section 230 protection.<a href="https://www.grindr.com/" target="_blank" dir="ltr">Grindr</a> is a popular LGBTQ+ dating application. The app requires users to provide an email address and verify that they are over 18, permitting them to create a profile including their geolocation and other information. The app uses the information that users provide to match them with other users who are “geographically proximate.”The case, John Doe v. Grindr, arose when the plaintiff, a minor, was matched with four adult men, with whom he chatted and whom met in person, ultimately leading to his sexual assault and rape in each instance. Doe sued Grindr for child sex trafficking and distributing a defective product, asserting claims of strict product liability, negligence, negligent misrepresentation, and violation of the <a href="https://www.congress.gov/bill/117th-congress/senate-bill/3949" target="_blank" dir="ltr">Trafficking Victims Protection Reauthorization Act</a> (TVPRA). He alleged that Grindr’s app is an inherently dangerous software product, that Grindr knows that minors use the app, and that sexual predators use it to target minors.Grindr moved to dismiss Doe’s claims, arguing that they were all barred by Section 230. The court applied the Ninth Circuit’s standard three-prong test, as originally articulated in <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/05-36189/05-36189-2011-02-25.html" target="_blank" dir="ltr">Barnes v. Yahoo!</a>, to determine Section 230’s applicability. This approach asks three questions: (1) is the defendant a provider or user of an “interactive computer service,” (2) does the plaintiff’s claim seek to treat the defendant as a “publisher or speaker,” and (3) was the content at issue provided by “another information content provider”? If these conditions are met, then the defendant is entitled to Section 230 immunity (assuming no other exception applies).The court easily determined that Grindr is an interactive computer service for purposes of the first prong of the test. The more interesting questions involved the second and third prongs, with Doe arguing that his claims did not treat Grindr as a publisher or speaker of content provided by a third party.Doe argued that his claims arose from Grindr’s design, development, and sale of a defective product rather than from Grindr’s activities as a publisher or speaker, relying on the Ninth Circuit case <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/04/20-55295.pdf" target="_blank" dir="ltr">Lemmon v. Snap</a> (which <a href="https://www.sociallyawareblog.com/topics/ninth-circuits-snap-decision-limits-section-230-immunity" target="_blank">we wrote about previously</a>). In Lemmon, the Ninth Circuit held that Section 230 did not apply to negligent design claims based on Snapchat’s “Speed Filter” feature, because those claims did not treat Snap as a publisher or speaker of information provided by another information content provider, but rather targeted Snap’s allegedly “unreasonable and negligent” design decisions. Similarly, Doe argued, Grindr’s app is defective in that it matches children with adults for in-person sexual encounters and facilitates the exchange of sexually explicit material.The court, however, distinguished Lemmon, noting that the allegedly defective match function in Grindr’s product relies on and publishes a user’s profile and geolocation data, which is third-party content generated by the user. To support this conclusion, the court cited <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/18-15175/18-15175-2019-08-20.html" target="_blank">Dyroff v. Ultimate Software</a> (finding that an app’s features, functions, and algorithms that analyze user content and recommend connections “are tools meant to facilitate the communication and content of others”), <a href="https://scholar.google.com/scholar_case?case=18029531304035617061&hl=en&as_sdt=6&as_vis=1&oi=scholarr" target="_blank">Herrick v. Grindr</a> (noting that Grindr’s geolocation feature is based on a user’s mobile device’s longitude and latitude), and <a href="https://law.justia.com/cases/federal/appellate-courts/ca5/07-50345/07-50345-cv0.wpd-2011-02-25.html" target="_blank">Doe v. Myspace</a> (rejecting argument that negligence claims were predicated on the lack of safety features to protect minors from communicating with predators). According to the court, Grindr received the user content from Doe and the adult men and published it via the match feature’s notification. If Grindr had not published that user-provided content, Doe and the adult men would never have met and the sexual assaults never occurred. [Citation omitted.] Thus, Doe’s claims require the Court to treat Grindr as a publisher of user content.On the third prong of the test—i.e., whether the relevant published material came from a third-party content provider—Doe argued that Grindr materially contributed to Doe’s harm by matching closely located children and adults on its app and that, therefore, his claim was not based only on third-party content. The court was not convinced, finding that the matching feature was based entirely on the geolocation information and user profiles provided by the users, which is publication of information created by third parties. According to the court, “Grindr is not an ‘information content provider because it did not create or develop information, but rather published information created or developed by third parties.’” [Internal citations omitted.]Regarding the TVPRA claim, Doe argued that Section 230 did not immunize Grindr because the <a href="https://www.congress.gov/bill/115th-congress/house-bill/1865" target="_blank">Allow States and Victims to Fight Online Sex Trafficking Act of 2017</a> (FOSTA) exempts child sex trafficking claims from the statutory safe harbor. Citing <a href="https://caselaw.findlaw.com/court/us-9th-circuit/1972265.html" target="_blank">Does v. Reddit</a>, however, the court noted that the FOSTA exception only applies when the platform itself contributed to the sex trafficking by knowingly benefiting or facilitating the illegal activities (we wrote about Does v. Reddit <a href="/topics/ninth-circuit-interprets-fosta-restriction-on-section-230-narrowly" target="_self" dir="ltr">here</a>).Here, because Doe told Grindr he was over 18, Grindr did not know that Doe was a minor, so Grindr was not directly liable under the TVPRA. Moreover, the court held, Doe’s allegations that Grindr knowingly benefitted (e.g., by selling ads) from sexual predators using the app did not mean that Grindr knowingly benefited from participating in child sex trafficking. According to the court, Grindr’s alleged generalized knowledge that sexual predators used the app was not sufficient to implicate Grindr in a “causal relationship between its own affirmative conduct furthering the sex-trafficking venture and its receipt of resulting ad revenues.” [Internal citations omitted.] Therefore, the FOSTA exception to Section 230 immunity did not apply.This case underscores the robust protection that Section 230 continues to provide to online platforms, even as societal concerns regarding social media’s impact on children reach fever pitch. As debates around Section 230 rage, Doe v. Grindr illustrates that the safe harbor provided by the statute remains potent, highlighting the complex interplay between ensuring online safety and maintaining the internet’s open, interactive nature.

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Associate

Lindsay Harris

Central District of California Upholds Grindr’s Immunity Under Section 230 Amidst Growing Concerns over Social Media Safety for Children