Section 230 Safe Harbor

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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

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

Happy 2018 to our readers! It has become a Socially Aware tradition to start the New Year with some predictions from our editors and contributors. With smart contracts on the horizon, the Internet of Things and cryptocurrencies in the spotlight, and a number of closely watched lawsuits moving toward resolution, 2018 promises to be an exciting year in the world of emerging technology and Internet law.

Here are some of our predictions regarding tech-related legal developments over the next twelve months. As always, the views expressed are not to be attributed to Morrison & Foerster or its clients.

From John Delaney, Co-Founder and Co-Editor, Socially Aware, and Partner at Morrison & Foerster:
Regarding Web Scraping

Web scraping is an increasingly common activity among businesses (by one estimate, web-scraping bots account for as much as 46% of Internet traffic), and is helping to fuel the “Big Data” revolution. Despite the growing popularity of web scraping, courts have been generally unsympathetic to web scrapers. Last August, however, web scrapers finally received a huge victory, as the U.S. District Court for the Northern District of California enjoined LinkedIn from blocking hiQ Labs’ scraping of publicly available user profiles from the LinkedIn website in the hiQ Labs, Inc. v. LinkedIn Corp. litigation. The case is now on appeal to the Ninth Circuit; although my sense is that the Ninth Circuit will reject the broad scope and rationale of the lower court’s ruling, if the Ninth Circuit nevertheless ultimately sides with hiQ Labs, the web scraper, the decision could be a game changer, bringing online scraping out of the shadows and perhaps spurring more aggressive uses of scraping tools and scraped data. On the other hand, if the Ninth Circuit reverses, we may see companies reexamining and perhaps curtailing their scraping initiatives. Either way, 2018 promises to bring greater clarity to this murky area of the law.

Regarding the Growing Challenges for Social Media Platforms

2017 was a tough year for social media platforms. After years of positive press, immense consumer goodwill and a generally “hands off” attitude from regulators, last year saw a growing backlash against social media due to a number of reasons: the continued rise of trolling creating an ever-more toxic online environment; criticism of social media’s role in the dissemination of fake news; the growing concern over social media “filter bubbles” and “echo chambers”; and worries about the potential societal impact of social media’s algorithm-driven effectiveness in attracting and keeping a grip on our attention. Expect to see in 2018 further efforts by social media companies to get out ahead of most if not all of these issues, in the hopes of winning over critics and discouraging greater governmental regulation.

Regarding the DMCA Safe Harbor for Hosting of User-Generated Content

The backlash against social media noted in my prior item may also be reflected to some extent in several 2017 court decisions regarding the DMCA safe harbor shielding website operators and other online service providers from copyright damages in connection with user-generated content (and perhaps in the CDA Section 230 case law discussed by Aaron Rubin below). After nearly two decades of court decisions generally taking an ever more expansive approach to this particular DMCA safe harbor, the pendulum begun to swing in the other direction in 2016, and this trend picked up steam in 2017, culminating in the Ninth Circuit’s Mavrix decision, which found an social media platform provider’s use of volunteer curators to review user posts to deprive the provider of DMCA safe harbor protection. Expect to see the pendulum continue to swing in favor of copyright owners in DMCA safe harbor decisions over the coming year.

Regarding Smart Contracts

Expect to see broader, mainstream adoption of “smart contracts,” especially in the B2B context—and perhaps litigation over smart contracts in 2019 . . . .

From Aaron Rubin, Co-Editor, Socially Aware, and Partner at Morrison & Foerster:
Regarding the CDA Section 230 Safe Harbor

We noted previously that 2016 was a particularly rough year for Section 230 of the Communications Decency Act and the immunity that the statute provides website operators against liability arising from third-party or user-generated content. Now that 2017 is in the rear view mirror, Section 230 is still standing but its future remains imperiled. We have seen evidence of Section 230’s resiliency in recent cases where courts rejected plaintiffs’ creative attempts to find chinks in the immunity’s armor by arguing, for example, that websites lose immunity when they use data analytics to direct users to content, or when they fail to warn users of potential dangers, or when they share ad revenue with content developers. Nonetheless, it is clear that the knives are still out for Section 230, including in Congress, where a number of bills are under consideration that would significantly limit the safe harbor in the name of combatting sex trafficking. I predict that 2018 will only see these efforts to rein in Section 230 increase. Continue Reading 2018: Predictions From Socially Aware’s Editors and Contributors

In an effort to deter hate groups from tweeting sanitized versions of their messages, Twitter has began considering account holders’ off platform behavior when the platform evaluates whether potentially harmful tweets should be removed and account holders should be suspended or permanently banned.

In connection with Congressional efforts to deter online sex trafficking by narrowing the Communications Decency Act’s Section 230 safe harbor protection for website operators from claims arising from third-party ads and other content, a revised House bill would require proof of intent to facilitate prostitution, helping to address Internet industry concerns regarding the legislative initiative.

YouTube is making a concerted effort to remove disturbing videos featuring children in distress.

Concerned about the effect fake news could have on the democratic process, lawmakers in Ireland proposed a law that would make disseminating fake news on social media a crime.

A proposed cybersecurity law in Vietnam would require foreign tech companies like Google to establish offices and store data in that country. According to this op-ed, such a relatively late attempt to rein in Vietnam’s social media use would “most certainly trigger a popular backlash” and “seem like a retrograde move.”

A new report from clinical experts in the UK recommends that children younger than five-years-old should never be permitted to use digital technology without supervision.

Snapchat is rolling out a redesign that places all the messages and Stories from a user’s friends to the left side of the camera, and stories from professional social media stars and media outlets that the user follows to the right of it. But will people over the age of 30 still have no idea how to use the platform?

Instagram is testing a direct messaging app that would replace its current inbox. Called Direct, the app stands independent of that Instagram platform and, like Snapchat, opens to the user’s camera.

Artificial intelligence is allowing people to actually enjoy the moments they photograph by significantly cutting down the time it takes to share and catalog pictures.

There’s a browser extension that will hide all the potentially upsetting stories in your social media newsfeeds, but it’s not perfect. And maybe that’s a good thing.

Hmmm—in a tumultuous year, the ten most-liked posts on Instagram of 2017 all belong to Beyoncé, Cristiano Ronaldo or Selena Gomez.

In contrast, the most popular tweets of this year concern politics, tragedy and, well, chicken nuggets.

The government in Indonesia has warned the world’s biggest social media providers that they risk being banned in that country if they don’t block pornography and other content deemed obscene.

A member of the House of Lords has proposed an amendment to the U.K.’s data protection bill that would subject technology companies to “minimum standards of age-appropriate design” such as not revealing the GPS locations of users younger than 16.

A bill in Wisconsin would make impersonating someone on social media a misdemeanor.

Google’s general counsel wrote a blog post arguing that two new cases over right-to-be-forgotten requests and pending before the European Union’s top court put the search-engine company at risk of “restricting access to lawful and valuable information.”

Trucking is a $700 billion industry that stands to save billions from automation,  and will likely get self-driving vehicles on the road sooner than most people expected.

Social media platforms are often used to prey on potential sex trafficking victims, according to one FBI special agent.

A recent study shows that searching for information from unofficial sources on social media during a crisis is likely to result in the spread of misinformation and anxiety. Researchers recommend that, to quash rumors, emergency management officials should stay in regular contact with people even if they don’t have any new information.

This piece in Slate invites readers to imagine what the Internet would look like today if not for the passage of Section 230 of the Communications Decency Act, a statute that “says that in general, websites are not responsible for the things their users do or post.”

An op-ed in USA Today compares to swift spread of infectious diseases that resulted from the concentration of populations in urban areas to the swift spread of ideas that accompanied the invention of the Internet, and concludes that traditional training in critical thinking is as necessary to survive the latter as nutrition was to survive the former.

By allowing companies to provide consumers with verifiable information about things like their diversity-driven hiring practices and their products’ supply chains, blockchain is going to change the marketing industry significantly, the American Marketing Association reports.

A high school senior who was bullied in middle school created Sit With Us, the phone-based anti-bullying app that helps kids find a welcoming place to eat in their school cafeteria.

A federal appeals court in Miami held that a judge needn’t necessarily recuse herself from a case being argued by a lawyer with whom the judge is merely Facebook “friends.”

Bills in both houses of Congress propose amending Section 230 of the Communications Decency Act to clarify that it doesn’t insulate website operators from liability for violating civil or criminal child-sex-trafficking laws.

The Commonwealth Court of Pennsylvania held that an unemployment-benefits board acted appropriately when it relied, in part, on an applicant’s Facebook post to determine that the applicant was not entitled to benefits.

A Texas law makes cyberbullying punishable by as much as a year in jail and/or a fine of up to $4,000.

Google is trying to make it more difficult to find and profit from YouTube videos that contain extremist content by placing warnings on those videos and disabling the advertising on them.

A company backed by Mark Cuban is planning to create a social media platform that will anonymize its users’ identities using blockchain technology and attempt to cut down on trolls by charging people with bad reputations on the platform more for premium services.

The online publishing platform Medium is giving some of its content writers the option to put their work behind Medium’s subscription pay wall and get paid based on the number of “claps” that work gets.

Evolutionary psychologists aren’t at all surprised by the popularity of snooping on social media.

Tips for law firm marketers on how to best leverage Instagram.

Advice on how to pen the best automated out-of-office reply.

When you visit someone’s home these days, do you use the doorbell or text instead?

03_April_SociallyAware_thumbnailThe latest issue of our Socially Aware newsletter is now available here.

In this edition, we explore the threat to U.S. jobs posed by rapid advances in emerging technologies; we examine a Federal Trade Commission report on how companies engaging in cross-device tracking can stay on the right side of the law; we take a look at a Second Circuit opinion that fleshes out the “repeat infringer” requirement online service providers must fulfill to qualify for the Digital Millennium Copyright Act’s safe harbors; we discuss a state court decision holding that Section 230 of the Communications Decency Act immunizes Snapchat from liability for a car wreck that was allegedly caused by the app’s “speed filter” feature; we describe a recent decision by the District Court of the Hague confirming that an app provider could be subject to the privacy laws of a country in the European Union merely by making its app available on mobile phones in that country; and we review a federal district court order requiring Google to comply with search warrants for foreign stored user data.

All this—plus an infographic illustrating how emerging technology will threaten U.S. jobs.

Read our newsletter.

SociallyAware_Vol8Issue1_Thumb2The latest issue of our Socially Aware newsletter is now available here.

In this edition,we examine a spate of court decisions that appear to rein in the historically broad scope of the Communications Decency Act’s Section 230 safe harbor for website operators; we outline ten steps companies can take to be better prepared for a security breach incident; we describe the implications of the Second Circuit’s recent opinion in Microsoft v. United States regarding the U.S. government’s efforts to require Microsoft to produce email messages stored outside the country; we explore the EU’s draft regulation prohibiting geo-blocking; and we take a look at UK Consumer Protection regulators’ efforts to combat undisclosed endorsements on social media.

All this—plus an infographic highlighting the most popular social-media-post topics in 2016.

Read our newsletter.

Speedometer_166009527We have been monitoring a trend of cases narrowing the immunity provided to website operators under Section 230 of the Communications Decency Act (CDA).  A recent decision by a state court in Georgia, however, demonstrates that Section 230 continues to be applied expansively in at least some cases.

The case, Maynard v. McGee, arose from an automobile collision in Clayton County, Georgia.  Christal McGee, the defendant, had allegedly been using Snapchat’s “speed filter” feature, which tracks a car’s speed in real-time and superimposes the speed on a mobile phone’s camera view. According to the plaintiffs, one of whom had been injured in the collision, McGee was using the speed filter when the accident occurred, with the intention of posting a video on Snapchat showing how fast she was driving.  The plaintiffs sued McGee and Snapchat for negligence, and Snapchat moved to dismiss based on the immunity provided by Section 230.

The plaintiffs alleged that Snapchat was negligent because it knew its users would use the speed filter “in a manner that might distract them from obeying traffic or safety laws” and that “users might put themselves or others in harm’s way in order to capture a Snap.” To demonstrate that Snapchat had knowledge, the plaintiffs pointed to a previous automobile collision that also involved the use of Snapchat’s speed filter.  The plaintiffs claimed that “[d]espite Snapchat’s actual knowledge of the danger from using its product’s speed filter while driving at excessive speeds, Snapchat did not remove or restrict access to the speed filter.” Continue Reading Snapchat Clocks Section 230 Win in Speed Filter Case