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LexBlog/99 Park Row
Evangeline Phang
August 17, 2020

It is another win for social media platforms in the realm of the Communications Decency Act’s Section 230. In a case of first impression within the Third Circuit, the Eastern District of Pennsylvania in Hepp v. Facebook ruled that social media platforms are immune under the Communications Decency Act for right of publicity violations under state law by users of such platforms.

Karen Hepp, a television news anchor for FOX 29 News, filed a complaint against several social media platforms, including Facebook, Imgur, Reddit, and Giphy (collectively, “social media defendants”), alleging that the social media defendants violated Pennsylvania’s right of publicity statute and Hepp’s common law right of publicity, based on such defendants’ “unlawful use of her image.”

Two years before filing her complaint, Hepp discovered that a photograph of her was taken without her consent by a security camera in a New York City convenience store. The photograph was subsequently used in online advertisements for erectile dysfunction and dating websites. For example, Hepp’s photograph was featured: (a) on Imgur under the heading “milf,” and (b) on a Reddit post titled “Amazing” in the subgroup r/obsf (“older but still $#^able”). Hepp alleged that, as a public figure, she suffered harm from the unauthorized publication of her image on the platforms hosted by the social media defendants, but she did not allege that such defendants created, authored, or directly published the photograph at issue.

In response to Hepp’s complaint, each social media defendant filed a motion to dismiss, asserting, among other things, immunity under Section 230 of the CDA. As we have noted in prior articles, Section 230(c) provides a federal safe harbor for internet service providers against liability for content originating from third-party users and content creators. This safe harbor is not boundless, however. For example, Section 230(e)(2) carves out causes of action “pertaining to intellectual property.” Hepp attempted to use this exception to get around the Section 230 immunity afforded to the social media defendants, but the court was not convinced. Ultimately, the court sided with the social media defendants and granted their motions to dismiss.

In reaching its decision, the court acknowledged the circuit split between the Ninth Circuit and several district courts over whether the CDA preempts state intellectual property claims.

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Technology & Marketing Law Blog
Eric Goldman
July 30, 2020
La Liberte spoke at a city council meeting. A photo of her speaking went viral because a “social media activist” posted the photo with a caption that she said racist things about a minority teenager in the photo. That turned out to be false. Nevertheless, MSNBC TV host Joy Reid retweeted the initial post (which is not at issue in this case); then she made two separate posts about the photo, each of which made the claim that La Liberte was making racist statements about teen. La Liberte sued Reid for defamation.

Reid invoked Section 230, but the issue is pretty straightforward. Reid solely authored the two posts repeating the claims she saw elsewhere, so she’s the ICP in the equation.

To get around this, Reid argued that her post “merely repeated what countless others had previously published before her, including Vargas and at least eight other individuals who specifically stated that La Liberte made racial slurs at the Council Meeting.”

Not surprising, the Second Circuit shreds this:Case citation: La Liberte v. Reid, 2020 WL 3980223 (2d Cir. July 15, 2020)

The post Section 230 Doesn’t Protect Repeating Rumors–La Liberte v. Reid

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Tech Dirt
Cathy Gellis
Jul 21st 2020

Having just criticized the Second Circuit for getting Section 230 (among other things) very wrong, it’s worth pointing out an occasion where it got it very right. The decision in Force v. Facebook [ed: a case about using social media to encourage terrorism] came out last year, but the Supreme Court recently denied any further review, so it’s still ripe to talk about how this case could, and should, bear on future Section 230 litigation.

It is a notable decision, not just in terms of its result upholding Section 230 but in how it cut through much of the confusion that tends to plague discussion regarding Section 230. It brought the focus back to the essential question at the heart of the statute: who imbued the content at issue with its allegedly wrongful quality? That question is really is the only thing that matters when it comes to figuring out whether Section 230 applies.

This case was one of the many seeking to hold social media platforms liable for terrorists using them. None of them have succeeded, although for varying reasons. For instance, in Fields v. Twitter, in which we wrote an amicus brief, the claims failed but not for Section 230 reasons. In this case, however, the dismissal of the complaint was upheld on Section 230 grounds.

The plaintiffs put forth several theories about why Facebook should not have been protected by Section 230. Most of them tried to construe Facebook as the information content provider of the terrorists’ content, and thus not entitled to the immunity. But the Second Circuit rejected them all.

Ultimately the statute is simple: whoever created the wrongful content is responsible for it, not the party who simply enabled its expression. The only question is who created the wrongful content, and per the court, “[A] defendant will not be considered to have developed third-party content unless the defendant directly and ‘materially’ contributed to what made the content itself ‘unlawful.'” [p. 68].

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It seems that recently there has been a significant number of libel claims that are all based on an unfavorable portrayal of a real person in a work of fiction – television program of motion picture – that is based on real life events.  There is Mossack Fonseca & Co., S.A. et al v. Netflix Inc ., which is based on the streamer’s portrayal of Panamaian lawyers at the center  the “Panama Papers”, leaked documents , that outlined their practice of helping clients move money to avoid tax liability.  The defamation suit claims the program falsely depicts both men as engaging in criminal activity, including subplots that link them to drug cartels and Russian gangsters with Mossack and Fonseca depicted in a “cartoonish” and “palpably farcical” manner that made it obvious the portrayal was fictionalized and intended to be comedic. . . .

Despite the producer’s win on appeal, this case is an example of the risks inherent in creating a work of fiction, including fictional characters, that is based on real world events.  It also provides examples of steps producers can take to prevent being on the losing side of a defamation claim.

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Technology & Marketing Law Blog
Eric Goldman
June 25, 2020
In this well-publicized case, Rep. Devin Nunes sued Liz Mair (@LizMair) and the accounts @devincow (“Devin Nunes’ Cow”), and @DevinNunesMom for various tweets. That lawsuit is dubious. Even less wisely, Nunes also sued Twitter for these third-party tweets. The judge gave Nunes a first-hand tutorial in Section 230 and dismissed Twitter. The case wasn’t close.

The court rejects Nunes’ key arguments:

• Courts can grant the Section 230 defense on a motion to dismiss because it is an immunity from suit. This issue has vexed courts from time to time (remember the tortured Barnes v. Yahoo ruling?). At this point, most courts will grant Section 230 on a motion to dismiss when the defense is apparent on the complaint’s face. (Like when a plaintiff tries to hold Twitter liable for third-party tweets).
• Nunes tried the common “conservative” talking point that Twitter lost its eligibility for Section 230 because it made editorial decisions about third-party content (the “it’s no longer a platform, it’s become a publisher” argument you find routinely featured on @BadLegalTakes and @BadSec230Takes). The court responds simply: “Plaintiff seeks to have the court treat Twitter as the publisher or speaker of the content provided by others based on its allowing or not allowing certain content to be on its Internet platform. The court refuses to do so” (citing Zeran). THERE IS NO PUBLISHER/PLATFORM DISTINCTION IN SECTION 230 JURISPRUDENCE AND NEVER HAS BEEN. Anyone suggesting otherwise deserves to be posterized on @BadLegalTakes and @BadSec230Takes.
• Nunes tried another popular “conservative” talking point that Twitter exhibited viewpoint bias against him, and that means Twitter should lose Section 230’s protection. The court says that the Nemet Chevrolet v. ConsumerAffairs court found Section 230 even when the plaintiff alleged bias.

The opinion concludes with a curious statement: “The court further finds that 47 USC Section 230 (c)(2) provides immunity for all civil liability and therefore Twitter is immune from Plaintiff’s negligence claim.” This sentence makes more sense if the court meant Section 230(c)(1) and not Section 230(c)(2). Zeran and Barnes both rejected negligence claims on (c)(1) grounds. If the court meant what it said, this sentence seems likely to exacerbate “conservatives’” baffling obsession about Section 230(c)(2).

Case citation: Nunes v. Twitter, Inc., CL19-1715-00 (Va. Cir. Ct. June 24, 2020)

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Technology & Marketing Law Blog
Eric Goldman
June 24, 2020

As I previously blogged:

Turo is a peer-to-peer marketplace for car rentals. “Colloquially put, Turo is the ‘Airbnb’ of private motor vehicles.” Though Turo doesn’t dictate where the buyer and seller exchange the car, Turo facilitates matches at airports, either by the seller leaving the car in the parking garage or doing curbside delivery.

The last time I blogged about Turo, Logan Airport in Boston successfully shut them down despite Turo’s invocation of Section 230 to strike down the airport’s regulations. In the latest ruling, LAX Airport similarly overcomes a Section 230 claim to shut Turo down as well.

This is a pretty easy case after the Ninth Circuit’s HomeAway v. Santa Monica ruling. The court says:

Consistent with the holding in HomeAway.com, recent decisions by federal courts across the country have also denied Section 230 immunity to platform services where it was only the platforms’ commercial transaction-facilitating functions that were subject to regulation.

Case citation: Turo v. City of Los Angeles, 2020 WL 3422262 (C.D. Cal. June 19, 2020)

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Technology & Marketing Law Blog
Eric Goldman
April 21, 2020

Whitepages compiles and generates “background reports” on people, remixing content from a database of public and private records that allegedly incorporates 2B+ records/month. In response to searches on people’s names, Whitepages provides free previews, such as this one included in the court opinion (this is a truncated view–it goes on for 3 pages):

Much of the free preview provides links indicating that more information about the person may be available behind Whitepages’ “premium” paywall. Thus, the plaintiffs assert that the free preview acts as advertising for the premium service.

Instant Checkmate runs a similar service to Whitepages. The interface is different, but the plaintiffs still characterize the free preview as advertising for the paywalled database.

The plaintiffs claim that the free preview violate Illinois’ publicity rights statute by displaying people’s personal data in the “ads.” The defendants moved to dismiss. This case reminded me a little of the uncited Facebook Sponsored Stories case (Fraley v. Facebook)….

Section 230. The court might have said that Section 230 doesn’t apply to publicity rights claims as IP claims (which is probably true everywhere except the 9th Circuit), and the court doesn’t address the closely analogous FTC v. Accusearch case denying Section 230 protection for the sale of telephone call records. Instead, citing the terrible 7th Circuit Huon decision, the court says “Whitepages did not act as a mere passive transmitter or publisher of information that was ‘provided by another information content provider.’ Rather, it is alleged to have actively compiled and collated, from several sources, information regarding Lukis. The CDA therefore does not shield Whitepages from liability.”

Case citation: Lukis v. Whitepages Inc., 2020 WL 1888916 (N.D. Ill. April 16, 2020)

Technology & Marketing Law Blog
Eric Goldman
April 16, 2020

… today’s pro se lawsuit, like numerous lawsuits preceding it, goes nowhere and gets a quick dismissal.

The plaintiff says that TheDirty hosts a service that it knows “libels” people. This sets up an easy Section 230 defense. The court’s analysis of Section 230:

federal law forbids defamation claims against host or platform website operators such as Dirty World, such as those alleged here, under the Communications Decency Act, 47 U.S.C. § 230 (the “CDA”). Dirty World cites multiple cases explaining the reasons underlying CDA’s prohibition. Conclusory and speculative allegations that the host or platform website operator must have created the speech is not sufficient to state a claim. [Kimzey v. Yelp!] Plaintiff has not plead facts here that “tend to demonstrate that the” post “was not, as is usual, authored by a user.” Further, the possibility that the posts were created by the website owner is not sufficient for a defamation claim to proceed against a host or platform website operator. [Nemet Chevrolet, Ltd. v. Consumeraffairs.com]

The First Amended Complaint’s allegation that “it is evident” that Dirty World “itself places comments on the webpages that are posted on their website www.thedirtyarmy.com” because the phrase “The Dirty Army” is present on Dirty World’s website and also its Facebook page is not sufficient to defeat CDA immunity

A parallel copyright claim fails because the complaint didn’t allege a copyright registration. ..

Case citation: Laake v. Dirty World LLC, 2020 WL 1866124 (D. Ariz. April 14, 2020). The complaint. See also the court’s refusal to add GoDaddy as a defendant (magistrate report; district judge’s approval).

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\Technology & Marketing Law Blog
Eric Goldman
April 1, 2020
Pellegrino is a saxophone player with “externally rotatable feet,” which has helped him develop a nifty “signature” dance move while playing. The videogame Fortnite sells “emotes,” optional customizations for players’ digital avatars. Pellegrino alleges that the “Phone It In” emote depicts his signature dance move. Pellegrino sued Fortnite for a variety of claims. The court dismisses all of them, with prejudice, except for the false endorsement claim (which will fail later).

Case citation: Pellegrino v. Epic Games, Inc., 2:19-cv-01806-JP (E.D. Pa. March 31, 2020). The complaint.

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LexBlog
J. Alexander Lawrence
November 12, 2019

A recent decision from a federal court in New York highlights the limits social media users enjoy under Section 230 of the Communications Decency Act (CDA). The case involves Joy Reid, the popular host of MSNBC’s AM Joy who has more than two million Twitter and Instagram followers, and the interaction between a young Hispanic boy and a “Make America Great Again” (MAGA)–hat wearing woman named Roslyn La Liberte at a Simi Valley, California, City Council meeting.

The case centers on a single re-tweet by Reid and two of her Instagram posts.

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The content in this post was found at https://www.lexblog.com/2019/11/12/the-joys-and-dangers-of-tweeting-a-cda-immunity-update/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com