Free for a Fee

Proskaur

Jeffrey Neuburger
July 31, 2018

In a closely-followed dispute, the California Supreme Court vacated a lower court order, based upon a default judgment in a defamation action, which had directed Yelp, Inc. (“Yelp”), a non-party to the original suit, to take down certain consumer reviews posted on its site. (Hassell v. Bird, No. S235968, 2018 WL 3213933 (Cal. July 2, 2018)).  If the plaintiffs had included Yelp as a defendant in the original suit, such a suit would have likely been barred by Section 230 of the Communications Decency Act (“CDA” or “CDA Section 230”); instead, the plaintiffs adopted a litigation strategy to bypass such legal immunities.  In refusing to allow plaintiff’s “creative pleading” to avoid the CDA, the outcome was a win for online companies and platforms that host user-generated content (“A Case for the Internet,” declared Yelp).

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The content in this post was found at https://newmedialaw.proskauer.com/2018/07/31/in-a-divided-opinion-california-supreme-court-squashes-end-run-around-cda-immunity-that-sought-to-compel-a-non-party-online-platform-to-remove-defamatory-content/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Technology & Marketing Law Blog

Eric Goldman
April 30, 2018

[Though most of these rulings are defense-favorable, Congress recently eviscerated Section 230 and isn’t done ruining its greatest online policy masterpiece]

Twitter Defeats Defamation Claim

Case citation: Frenken v. Hunter, 2018 WL 1964893 (N.D. Cal. April 26, 2018)

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Section 230 Protects Instagram Link to Defamatory Content

Case citation: Marfione v. Kai USA, 2018 WL 1519042 (W.D. Pa. March 28, 2018)

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No Liability for Cyber-Harassment Attack, Even if the Service Could Have Been Designed Differently

Case citation: Herrick v. Grindr LLC, 2018 WL 566457 (SDNY Jan. 25, 2018)

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Section 230 Protects Message Board 

Allnurses runs a message board related to nursing. The plaintiff offers Active Test Prep (ATP), a test prep service for nursing exams. Allnurses users allegedly defamed ATP in message board posts. Allnurses defends on Section 230 grounds, which the court largely accepts. ATP claimed the users were Allnurses’ “agents” but didn’t marshal good evidence to support the assertion. Also, the court says Section 230 applies to claims that Allnurses “ratified and adopted” the user comments. In a footnote, the court says: “ATP argues that Allnurses selectively removed content and ultimately closed the thread—but that is precisely the type of action that the CDA was intended to protect.”

The opinion also addresses what it means to “like” an allegedly defamatory post: “to ‘Like’ something online is not to vouch for its veracity, and certainly not in whole.” See Bland v. Roberts.

ATP also claimed breach of contract for Allnurses’ failure to enforce negative behavioral covenants in the TOS (have you noticed how often plaintiffs are trying this attempted workaround to Section 230?). The court says that Allnurses’ contract formation failed because ATP  “does not allege, and the record does not show, that users must check a box accepting the statement ‘Your participation implies full acceptance with our Terms of Service.’” [Protip: you never want to “imply” anything about your contract terms or formation process.] Furthermore, ATP can’t be a third party beneficiary of the Allnurses/user contract because “by this logic, the entire world is an intended beneficiary of the TOS. That cannot be right.” The promissory estoppel workaround fails because the TOS terms are too indefinite.

Case citation: East Coast Test Prep LLC v. Allnurses.com, Inc., 2018 WL 614732 (D. Minn. Jan. 29, 2018)

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Section 230 Helps Defeat Product Liability Claim

A retractable leash permanently injured the plaintiff’s eye. She bought the leash from an Amazon Marketplace merchant. She sued Amazon for various products liability claims. The court says no. First, the court says Amazon wasn’t the seller of goods in its marketplace. Sorry this passage is so painful, but don’t shoot the messenger:

Like an auctioneer, Amazon is merely a third-party vendor’s “means of marketing,” since third-party vendors—not Amazon—“cho[o]se the products and expose[ ] them for sale by means of” the Marketplace. Because of the enormous number of third-party vendors (and, presumably, the correspondingly enormous number of goods sold by those vendors) Amazon is similarly “not equipped to pass upon the quality of the myriad of products” available on its Marketplace. And because Amazon has “no role in the selection of the goods to be sold,” it also cannot have any “direct impact upon the manufacture of the products” sold by the third-party vendors.

The Amazon Marketplace serves as a sort of newspaper classified ad section, connecting potential consumers with eager sellers in an efficient, modern, streamlined manner. Because subjecting it to strict liability would not further the purposes of § 402A, as revealed by Musser and other Pennsylvania cases, it cannot be liable to the Oberdorfs under a strict products liability theory.

Calling Amazon Marketplace a “classified ad section” is definitely defense-favorable, but it’s a weak analogy that other courts would reject. See Airbnb v. San Francisco. Regarding Section 230, the court says:

Since the Oberdorfs’ claims for strict products liability, misrepresentation, and breach of warranty have all been disposed of supra, this Court need only consider Amazon’s CDA argument with respect to the Oberdorfs’ negligence and negligent undertaking claims. Although the Complaint frames those claims broadly, it is clear from the Oberdorfs’ papers that they are, in fact, attempting to hold Amazon liable for its role in publishing an advertisement for The Furry Group’s product. In other words, the Oberdorfs are attempting to “treat[ Amazon] as the publisher or speaker of…information provided by” The Furry Group.

Uncited cases in this genre include: Inman v. Technicolor, McDonald v. LG (reaching a different conclusion on Section 230), Hinton v. Amazon, and Englert v. Alibaba.

Case citation: Oberdorf v. Amazon.com, Inc., 2017 WL 6527142 (M.D. Pa. Dec. 21, 2017)

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Publicity Rights Claim Preempted by Section 230 in a Court Outside the 9th Circuit

Case citation: Parker v. PayPal, 2017 WL 3508759 (E.D. Pa. Aug. 16, 2017)

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/04/recapping-a-years-worth-of-section-230-cases-that-got-stuck-in-my-blogging-queue.htm  Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Technology & Marketing Law Blog

Eric Goldman
July 2, 2018
I previously described the case facts: “A lawyer was unhappy with a Yelp review about her. The lawyer sued the putative author (with dubious service of process), got a default ruling that the review was defamatory along with a removal injunction, and then delivered the injunction to Yelp and demanded removal. Yelp refused to remove the review.” In a shocking development, in 2016, the Court of Appeals upheld the injunction. Today, the California Supreme Court reversed that ruling, seemingly restoring the status quo. Yelp rightly claims it as a win.

However, the long-term implications of this case aren’t entirely clear because the Supreme Court voted 3-1-3:  . . .

Unfortunately, the fractured opinions raise some doubts about the true holding of this case. If the plurality opinion is the law, Section 230 defendants have a lot to celebrate. The plurality opinion strongly endorses Section 230….

The opinion is noteworthy for what it didn’t do. There was no analysis at all of the First Amendment. Due process was discussed, but there was no clear resolution on the applicability of Constitutional due process to this case. The opinions did not come anywhere close to resolving when a non-party can be bound to an injunction, an issue that affects cases far beyond the Internet Law realm. . . .

One of the many unusual aspects of this case is that Yelp didn’t remove the review when presented with the court’s judgment.

Case Citation: Hassell v. Bird, S235968 (Cal. Sup. Ct. July 2, 2018)

[ed’s note: Eric’s subsequent analysis is detailed and insightful. Uses this case to address LOADS of 230 issues. Do note, this is a state supreme court (CA) decision.]

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/07/the-california-supreme-court-didnt-ruin-section-230-today-hassell-v-bird.htm  Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Tech Dirt

Tim Cushing
Thu, Jul 12th 2018

An interesting sidebar to a case we’ve written about previously has surfaced via the ever-attentive Eric Goldman. Last month we covered a lawsuit against Snapchat brought by the victims of an car accident. The victims claim Snapchat is at least partially responsible for the injuries inflicted on Karen Maynard. The driver of the other vehicle, Christal McGee, was allegedly driving at over 100 mph when she hit Maynard’s vehicle. The suit also alleged — based on passenger statements, accident reconstruction, and police reports — McGee was using Snapchat’s “Speed” filter when the accident occurred.

The Georgia state appeals court allowed the case to proceed, but not on Section 230 grounds.

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The content in this post was found at https://www.techdirt.com/articles/20180707/21561340194/state-appeals-court-tosses-defamation-suit-against-lawyer-who-wrote-about-teen-driver-who-injured-his-client.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Technology & Marketing  Law Blog

Eric Goldman

April 11, 2018

This morning, President Trump signed H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), into law. The bill signing was anticipated, but that doesn’t make the outcome any less terrible. Today, Washington DC regulators made a major error, one that we’ll likely regret for decades.

Eventually, I plan to write an explainer about the law. In this post, I’ll highlight three developments from the past 2+ weeks since the Senate approved the bill, plus some open questions.

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The content in this post was found at 

https://blog.ericgoldman.org/archives/2018/04/worst-of-both-worlds-fosta-signed-into-law-completing-section-230s-evisceration.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

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The content in this post was found at https://arstechnica.com/tech-policy/2018/03/congress-oks-sex-trafficking-bill-that-critics-say-will-censor-the-internet/

Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Social Aware blog: law and business of social media

Hywote Taye & John Delaney on March 20, 2018

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.

In September 2012, Equustek asked Google to delist search results for Datalink; Google declined this request. Equustek then sought a court order against Google in Canada and prevailed, resulting in Google removing 300 Datalink websites from search results generated by the Canadian version of its site, located at www.google.ca. Google, however, did not take similar steps with respect to U.S. and other non-Canadian versions of its site, so the Datalink websites continued to appear in search results conducted by users outside of Canada.

Equustek returned to the Canadian court, this time to seek an order compelling Google to remove the Datalink-related search results globally so that Datalink results would not appear for any Google users, regardless of their location. Equustek once again prevailed, and Google appealed to the Court of Appeal for British Columbia. That court, and later the Supreme Court of Canada, affirmed the trial court’s order.

Google then brought the battle to the United States; in July 2017, it commenced an action in the U.S. District Court for the Northern District of California seeking a declaratory judgment that the Canadian court order cannot be enforced in the United States and an injunction against the enforcement of such order. (Equustek did not submit an opposition brief.)

In support of its preliminary injunction motion, Google’s primary arguments were that the Canadian order (1) ignores the Communication Decency Act’s immunity for interactive service providers (2) directly conflicts with the First Amendment and (3) violates principles of international comity.

Socially Aware

Janie Buckley & J. Alexander Lawrence on March 15, 2018

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.

Herrick then sued Grindr, claiming that the company was liable to him because of the defective design of the app and the failure to police such conduct on the app. Specifically, Herrick alleged that the Grindr app lacked safety features that would prevent bad actors such as his former boyfriend from using the app to impersonate others. Herrick also claimed that Grindr had a duty to warn him and other users that it could not protect them from harassment stemming from impersonators.

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The content in this post was found at https://www.sociallyawareblog.com/2018/03/15/lawsuit-against-online-dating-app-grindr-dismissed-under-section-230-of-the-communications-decency-act/

Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com..

Techdirt

March 3, 2018

Another case of YouTube’s copyright notification system being abused has filtered down through social media. A YouTuber whose channel specializes in game reviews was targeted by the developer of the game after some back-and-forth on the internet over his negative review.

Chris Hodgkinson reviewed a game called Super Seducer, which supposedly teaches dudes how to pick up women through the magical art of full-motion video. Call it “edutainment.” (If you must…) The developer, Richard La Ruina, didn’t care for his game being featured on a video series entitled “This is the Worst Game Ever.” Nor did he care for Hodgkinson’s suggestion the game offered nothing to men in the way of usable pick-up artistry.

Techdirt

retrieved Feb. 23, 2018

In the annals of stupid legislation, California’s attempt to fight ageism at Hollywood studios by targeting third-party websites and using the First Amendment as a doormat will secure a prominent place in infamy. Rising from the ashes of a failed lawsuit brought by an actress who claimed IMDb cost her untold amounts of wealth by publishing her age, the law basically said IMDb couldn’t publish facts on its website. Those pushing the legislation included the Screen Actors Guild, which apparently doesn’t have the spine to stand up to studios and target them for discriminating against actors and actresses.

Last year, IMDb secured a temporary injunction against the state of California, forbidding it from enforcing the law while the courts sorted out its constitutionality. That day has arrived. A federal court has declared the law unconstitutional and permanently blocked California from going after IMDb because Hollywood producers participate in discriminatory hiring. (h/t Jacob Gershman)

The decision [PDF] is short. It takes only six pages for the district court to destroy the state’s arguments. First, it tells the state it’s not going to apply a lower First Amendment standard of scrutiny to its awful law.

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The content in this post was found at https://www.techdirt.com/articles/20180221/14510139279/federal-court-shuts-down-imdb-targeting-anti-ageism-law-permanently.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Clicking the title link will take you to the source of the post.

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