As we have frequently noted on Socially Aware, Section 230 of the Communications Decency Act protects social media sites and other online platforms from liability for user-generated content. Sometimes referred to as “the law that gave us the modern Internet,” Section 230 has provided robust immunity for website operators since it was enacted in 1996. As we have also written previously, however, the historically broad Section 230 immunity has come under pressure in recent years, with both courts and legislatures chipping away at this important safe harbor.

Now, some lawmakers are proposing legislation to narrow the protections that Section 230 affords to website owners. They assert that changes to the section are necessary to protect Internet users from dangers such as sex-trafficking and the doctored videos known as “deep fakes.”

The House Intelligence Committee Hearing

Recently, a low-tech fraudulent video that made House Speaker Nancy Pelosi’s speech appear slurred was widely shared on social media, inspiring Hany Farid, a computer-science professor and digital-forensics expert at the University of California, Berkeley, to tell The Washington Post, “this type of low-tech fake shows that there is a larger threat of misinformation campaigns—too many of us are willing to believe the worst in people that we disagree with.” Continue Reading Legislators Propose Narrowing § 230’s Protections

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 decade.” Read exactly what common-law copyright rule the case called into question, and how the Tom-Brady-Twitter-photo lawsuit concluded without resolving the status of that rule.

Rep. Alexandria Ocasio-Cortez blocked the conservative media outlet The Daily Caller from following her on Twitter after the publication disputed something she’d said in connection with her Green New Deal resolution. Some First Amendment experts argue that public officials’ blocking of accounts on social media doesn’t violate the free speech rights of the owners of those blocked accounts. Last year, however, in a case filed by Columbia University’s Knight First Amendment Institute and seven individuals who claimed President Trump had blocked them on Twitter, a federal district court in New York held that Twitter’s “interactive space” constitutes a public forum, and that blocking users violates their right to free speech.

A draft law in Germany is believed to be the first regulatory proposal in Europe “to impose binding diversity obligations on social media platforms’ ranking and sorting algorithms,” according to the authors of a post on a media blog belonging to the London School of Economics. The proposed law would, among other things, prohibit “media intermediaries”—a category that includes social media platforms, search engines and news aggregators—from “unfairly disadvantage[ing] (directly or indirectly) or treat[ing] differently providers of journalistic editorial content to the extent that the intermediary has potentially a significant influence on their visibility.”

The government of Bahrain, an island-country in the Persian Gulf that has been increasing security since a Shi’ite Muslim-led uprising in 2011, recently sent text messages to its citizens’ phones warning them that merely following activist social media accounts could result in legal liability.

Pursuant to a 2016 Russian law that requires social media sites to acquiesce to the government’s requests for user data, the Russian government is requiring the dating app Tinder to collect and turn over all of its user data for at least six months. Blackmail fodder, anyone?

North Face, an outdoor-activity-accoutrements company, secretly executed an ad campaign on Wikipedia. The campaign may have been an ingenious way to get North Face’s products at the top of world travelers’ Google results, but it violated the educational platform’s terms of service and struck many people as unethical. The company and its ad agency have since apologized.

In a case that serves a reminder of the increasing use of social media posts as evidence in courts of law, a court near Paris held that a French rock star’s Instagram account provided sufficient evidence to prove that the musician had spent enough time in France over several years to give a French court competence over the his estate.

Nevada just joined California as the second state to enact an opt-out right for consumers from the “sale” of their personal information. Senate Bill 220, which was signed into law on May 29, 2019, is scheduled to take effect on October 1, 2019, three months prior to its precursor under the California Consumer Protection Act (the CCPA). The opt-out right is one of several changes made to Nevada’s existing online privacy law, which requires operators of commercial websites and other online services to post a privacy policy. In addition to the new opt-out right, the revised law exempts from its requirements certain financial institutions, HIPAA-covered entities, and motor vehicle businesses. Continue Reading Nevada Enacts CCPA-Style Opt-Out Right for Consumers—but Similarities Are Few

Last week, German regulators decided to no longer accept the widely used “JusProg” software as a sufficient means for online service providers to comply with statutory youth protection requirements. The decision is effective immediately, although it will most likely be challenged in court. If it prevails, it puts video-sharing platforms, distributors of gaming content, and online media services at risk of being held accountable for not properly protecting minors from potentially harmful content. For the affected providers, this is particularly challenging because it will be hard, if not impossible, to implement alternative youth protection tools that will meet the redefined regulatory standards.

This alert provides the legal background for the decision and discusses its implications in more detail. It is relevant to all online service providers that target German users. Continue Reading Youth Protection in Germany: Are Online Age Checks & Daytime Blackouts Ahead?

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 hashtags. Whether a hashtag is capable of functioning as a trademark, the topic of two of Socially Aware’s most popular posts, is—of course—another issue entirely.

In what The New York Times describes as “the latest in a line of rulings allowing companies to use arbitration provisions to bar both class actions in court and class-wide arbitration proceedings,” the Supreme Court held that the employment agreements of workers at the lighting fixture retailer Lamps Plus can’t band together to sue the company for allegedly failing to protect their data. The details of the data breach make for an interesting read.

The U.K.’s data regulator has proposed rules that would prevent social media platforms from allowing children to “like” posts. Here’s why.

Officials in a Georgia city might pass a law that would allow elected and appointed officials and employees of the city to sue—at the city’s taxpayers’ expense—anyone who defames them on social media.

Instagram influencer Gianluca Vacchi, who is not a fictional character, but—according the complaint he filed in a federal court in New York—“an international social media celebrity, influencer, fashionista, and disk jockey” —is suing E*Trade for allegedly depicting a character in its commercials who is “stunningly identical” to him. The suit claims copyright infringement, Lanham Act false association and unfair competition, and violation of New York’s right of publicity and privacy.

The Chinese social media company Weibo restored access to this type of content from its platform after significant backlash from its users.

In the age of smartphones and social media, what can trial lawyers do to secure a jury that relied only on the evidence presented in court?

Artificial intelligence is informing which items McDonald’s includes on its outdoor digital menu displays.

The California State Bar is considering using artificial intelligence, too. The bar hopes that AI can help it to more efficiently determine which attorney misconduct complaints to pursue, and perform a function that affects every wannabe lawyer.

Should Wendy’s put Spicy Chicken Nuggets back on its menu? Social media users have spoken (with some prompting from Chance the Rapper).

The Directive on Copyright in the Digital Single Market (Directive) was finally approved by all EU legislative bodies on April 15, 2019. Introducing “modernizing EU copyright rules for European culture to flourish and circulate” was a key initiative of the European Commission’s Digital Single Market (DSM), which, according to the Commission’s President Jean-Claude Juncker, has now been completed by the Directive as “the missing piece of the puzzle.” The Directive was approved, just in time for the elections to the EU Parliament taking place in May 2019. Within a period of 24 months, the Member States are required to implement the Directive’s provisions into national law.

Various Member States have issued, along with their approval of the Directive, statements regarding their interpretation of the Directive and voicing quite different views about the upcoming implementation process. While Germany strongly opposes the notion of upload filters, it appears that France is in favor of a copyright protection mechanism that includes upload filters. At the same time, it remains a pressing question whether currently available algorithm-based filters would even be able to sufficiently differentiate between infringing and non-infringing content. Continue Reading The EU Copyright Directive Passes – But Member States Remain Split on Upload Filters

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, a directive that, although vaguely worded, affords copyright holders significant new protections online, and requires online platforms to police content more thoroughly than ever before. Find out exactly what impact industry advocates predict the law will have, and how long it will be until it’s implemented.

Learn how companies can collect and use biometric data without becoming an easy target for litigation, according to my co-editor Julie O’Neill and our colleague Max Phillip Zidel.

As part of the FTC’s continuing efforts to ensure consumers are aware of when an online endorser has been compensated in connection with an endorsement, the agency recently settled a complaint against a subscription service that allegedly offered its product for free to consumers who posted positive online reviews.

In the wake of reports about social media influencers purchasing fake followers and fake likes, as well as failing to adequately label endorsed content, online celebrities are embracing more relatable posts, potentially in an effort to appear more trustworthy.

To better compete with digital media platforms, the top 40 television markets in the United States will introduce a broadcasting standard that will enable interactive and targeted advertising.

Snap Inc., whose Snapchat app currently excludes users younger than 13 but generally does not verify ages, has announced that it is working with British lawmakers to prevent underage children from signing up for its service.

What’s up with Google’s new streaming game platform?

A photographer is suing supermodel Gigi Hadid for copyright infringement for posting a photo of herself to Instagram.

Fruit of the Loom is holding a contest on Instagram in search of the best jingle for their Breathable Boxer Briefs. See how much the underwear manufacturer promises to award the winning songwriter.

In early March 2019, the Department of Justice (DOJ) revised its Foreign Corrupt Practices Act (FCPA) Corporate Enforcement Policy (the Policy). First announced in November 2017, the Policy is designed to encourage companies to self-report FCPA violations and to cooperate with the DOJ’s FCPA investigations. The Policy and its recent revisions were incorporated into the United States Attorneys’ Manual (USAM), now referred to as the Justice Manual (JM), which is the internal DOJ document that sets forth policies and guidance for federal prosecutors.

One of the most notable aspects of the original Policy was its requirement that companies seeking to obtain remediation credit prohibit employees from using ephemeral messaging systems unless appropriate retention mechanisms were put in place. According to the original Policy, a company would receive full credit for remediation only “if [it] prohibit[ed] employees from using software that generates but does not appropriately retain business records or communications.” Continue Reading How to Comply with the Revised Ephemeral-Messaging Provision in the DOJ’s Corporate Enforcement Policy

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. Continue Reading What’s in a (User)Name?