The NetChoice LLC Texas Case: Stay by Fifth Circuit Vacated by the Supreme Court

The December 16, 2021 post “Texas Enjoined from Enforcing Law Targeting Social Media Platforms” reported how on December 1, 2021 a federal court in Texas enjoined enforcement of a law which would have limited a large number of social media companies from moderating content on their websites.

Thereafter, on May 11, 2022, the United States Court of Appeals for the Fifth Circuit issued an Order which allowed the Texas law to go into effect, essentially staying the district court’s determination.

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Section 230 Dodges Another Judicial Bullet

The June 10, 2020 and July 22, 2019 posts on Trending Law Blogs discussed, among other things, how Section 230 of the Communications Decency Act, 47 U.S.C. §230 (c)(1) (hereafter “§230”), has come under attack by politicians who seek to remove the §230 immunity that protects internet platforms such as Google, Yahoo!, Microsoft and Facebook when they are sued for re-publishing content on their websites which is provided by a third-party.

On March 7, 2022, §230 staved off an attack by a private plaintiff in Texas who challenged Facebook’s §230 protection when the Supreme Court of the United States denied the plaintiff’s petition for certiorari. According to the Petition for Writ of Certiorari, the plaintiff claimed she was sex trafficked as a minor “because Facebook’s products connected her with a sex trafficker.” Facebook asserted it was “completely immune from suit” under §230. After the Texas Supreme Court ruled in favor of Facebook, plaintiff appealed to the U.S. Supreme Court, asking the Court to rule on whether §230 provided immunity from suit to internet platforms “in any case arising from the publication of third-party content, regardless of the platform’s own misconduct.”

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A Communication Data Warrant or Wiretap Order – Which is needed for Law Enforcement to Obtain ESI from Facebook?

Digital FingerprintIn a recent case decided by the Appellate Division in New Jersey, Facebook, Inc. v. State of New Jersey, the court considered whether communication data wire warrants (“CDWs”) or wiretap orders had to be served on Facebook for law enforcement officers to obtain “prospective electronically stored information” from Facebook users as part of an ongoing criminal investigation. The court held that a CDW rather than a wiretap order was required. (The court additionally held that the duration of the particular CDWs – 30 days – was too lengthy under New Jersey’s search warrant procedures and had to be modified to a 10 day duration.)

In reaching this decision, the Appellate Division reversed decisions of two trial judges who each had ruled that wiretap orders – not CDWs – were needed to compel Facebook to turn over information, i.e., images, videos, audio files, posts, comments, histories, the contents of private messages, etc., it would collect prospectively from the subjects of the investigation. The CDWs sought “the ongoing disclosure of prospective electronic communications for thirty consecutive days, and the immediate disclosure of at least twice as many days’ worth of the historical communications.”  Facebook provided all of the historical communications requested but moved to quash the CDWs to the extent they sought the contents of prospective electronic communications, contending that a wiretap order was needed to obtain those communications. (A wiretap order requires law enforcement to satisfy a significantly greater burden to be issued as compared to what must demonstrated to obtain a CDW.)

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Always Click the User Agreement Link!

In a recent case decided by the Appellate Division in New Jersey – Vercammen v. LinkedIn Corp. – the court affirmed the dismissal of a lawsuit filed by a New Jersey attorney who had his LinkedIn premium membership terminated because of his alleged multiple violations of the social media network’s policies, even after he had been warned that his posting practices violated LinkedIn’s policies. LinkedIn terminated the attorney’s account because he was posting more than 15 articles per day (which exceeded the number of article members were permitted to post) and because he was using the articles to advertise his business in violation of the site’s Publishing Platform Guidelines.

Linkedin WebsiteAll of the attorney’s claims – for breach of contract, breach of warranty, injunctive relief, negligence, fraud and consumer fraud – were dismissed with prejudice at the trial level, for among other reasons, the attorney’s failure to comply with the forum selection clause in LinkedIn’s User Agreement, which required disputes to be litigated in California.

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Social Media Influencers Beware!

In Petunia Products, Inc. v. Rodan & Fields, LLC and Molly Sims, the United States District Court for the Central District of California held that a social media influencer – a person “presumed to have the power to affect the purchase decisions of others” – could be sued for direct trademark infringement in connection with the products the influencer endorsed.

Young influencer stands in front of camera.

In this case, the plaintiff, a cosmetics company, owned the BROWBOOST®  trademark, which it used in connection with its eyebrow product. Defendant Rodan & Fields (“R&F”), a competitor of plaintiff, marketed its own eyebrow product called “Brow Defining Boost.” Plaintiff claimed the R&F product infringed on its trademark and that R&F’s promotion of its product on social media with the hashtag #BROWBOOST diluted plaintiff’s social media presence. Plaintiff also alleged that a social media blogging influencer employed by R&F, defendant Molly Sims, posted a blog which infringed on plaintiff’s trademark because the blog promoted the allegedly infringing product. Sims moved to dismiss the complaint, claiming plaintiff failed to adequately plead claims for direct trademark infringement, contributory infringement, false advertising, and unlawful and unfair business practices.

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Texas Enjoined from Enforcing Law Targeting Some Social Media Platforms

The August 13, 2021 Trending Law Blog post discussed how the United States District court for the Northern District of Florida enjoined Florida from enforcing a law that targeted some, but not all, social media platforms based on the content of the speech hosted on their websites. On December 1, 2021, a federal district court in Western District of Texas, following arguments heard in NetChoice LLC v. Paxton, relied on the First Amendment and similarly enjoined Texas from enforcing a law which would have limited a large number of social media companies from moderating content on their websites.

The Texas statute – HB20 – prohibited certain social media companies from “censoring” users of a platform based on the users’ viewpoints. The statute, however, only applied to certain social media companies, i.e., ones with more than 50 million users and which allowed users to create accounts so they could communicate with others by posting information, images, comments or messages. The law also imposed disclosure and operational requirements on the social media platforms and allowed Texas users or people doing business in Texas to seek injunctive relief and attorneys’ fees if they believed their viewpoint speech had been improperly censored. The statute similarly allowed the Texas Attorney General (defendant Ken Paxton) to seek injunctive relief and attorneys’ fees for violations of the law. Two social media trade associations filed suit to prevent Texas from enforcing HB20 based on, among other grounds, the First Amendment.

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Will a Decision of the High Court of Australia in a Case Involving Defamation and Social Media Have Ramifications Elsewhere?

On September 8, 2021, the High Court of Australia ruled 5-2 in Fairfax Media Publications Pty Ltd. v. Voller that media companies in Australia could be held liable for defamation as a result of comments left by third-parties on the companies’ social media pages. Although the case is not binding on courts in the United States, it could embolden plaintiffs here to pursue similar causes of action, so itAustralian High Court is worthwhile to review the facts and legal analysis set forth by the High Court in its Voller decision.

The facts of the case were fairly simple. The defendants, newspaper publishers and operators of television stations, maintained Facebook pages which hyperlinked to stories on the defendants’ websites. The defendants invited readers who used Facebook to comment about the articles on the media companies’ Facebook pages. The plaintiff, Dylan Voller, claimed that the companies posted news articles about his prior incarceration in a juvenile detention center, which resulted in comments alleged to be defamatory of him on the companies’ Facebook pages. Contending that the media companies were “publishers” of the comments made by readers of their Facebook pages, Voller filed suit.

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Southern District of New York Rejects Ninth Circuit’s Copyright Analysis Regarding Embedded Images

In a recent case, Nicklen v. Sinclair Broadcast Group, Inc., the United States District Court for the Southern District of New York, rejecting the rationale of a case decided by the United States Court of Appeals for the Ninth Circuit in 2007, denied a defendant’s motion to dismiss a complaint filed by plaintiff who posted a video on Instagram and Facebook only to have defendants embed the video in an online article posted on their websites without having first obtained a license from plaintiff.

The case involved video footage shot by plaintiff, the author and registered owner of a video showing an emaciated polar bear wandering around the Arctic. The plaintiff posted the video to his Instagram and Facebook accounts along with a caption which advised others seeking to use the content commercially to obtain a license to do so. Defendants published an article on their websites about starving polar bears and, using a Facebook and Instagram embedding tool, included the plaintiff’s video in their article without having first obtained a license. Defendants failed to remove the video from their websites after plaintiff sent a takedown notice, leading plaintiff to file a lawsuit which claimed that defendants “infringed his exclusive reproduction, distribution, and display rights” under U.S. copyright law.

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N.J. Supreme Court Dismisses Disciplinary Charges Against Attorney for Alleged Ethics Violation Involving the Use of Social Media

            The June 4, 2020 Trending Law Blog post discussed the New Jersey Supreme Court’s Disciplinary Review Board (“DRB”) recommendation to the Supreme Court that a New Jersey attorney receive an admonition for instructing a paralegal to “friend” an adverse, represented party on Facebook in order to gather non-public information about the individual, a plaintiff in a personal injury action. On September 21, 2021, the Supreme Court issued a decision which unanimously rejected the recommendation of the DRB.

            In the underlying matter, a personal injury plaintiff became aware that the defendants’ attorney’s office had contacted him through Facebook without first contacting his attorney, and, claiming that the contact violated New Jersey Rule of Professional Conduct 4.2 (Communication with Person Represented by Counsel), the plaintiff filed an ethics grievance against the lawyer. The DRB found “clear and convincing evidence that [counsel’s] conduct was unethical.”  Following that determination by the DRB, the Supreme Court conducted a de novo review of the record, including a decision by a Special Master (who had presided over a three day hearing on the matter and took testimony from witnesses) that the ethics complaint against the attorney should be dismissed. The Supreme Court agreed with the Special Master and held that “the disciplinary charges set forth in the complaint against [the attorney] have not been proven by clear and convincing evidence and must be dismissed.”

            In reaching this decision which rejected the DRB’s finding that the attorney violated the Rules of Professional Conduct, the Supreme Court recognized that in 2008 – when the complained of conduct occurred – the attorney was unfamiliar with the workings of Facebook and did not appreciate what “friending” meant on the social media platform. The Court also took notice of the fact that no jurisdictions in the country had issued any ethics opinions in 2008 regarding whether sending a “friend request” to a represented party constituted a violation of RPC 4.2. Finally, the Court also paid deference to the Special Master’s findings on witness credibility. As a result, the Supreme Court found, based on its independent review of the record, that the disciplinary charges against the attorney had not been proven by clear and convincing evidence.

            But the Court did not stop there. It took the opportunity presented in this disciplinary matter to provide guidance to attorneys with regard to their use of social media:

Attorneys should know that they may not communicate with a represented party about the subject of the representation — through social media or in any other manner — either directly or indirectly without the consent of the party’s lawyer. Today, social media is ubiquitous, a common form of communication among members of the public. Attorneys must acquaint themselves with the nature of social media to guide themselves and their non-lawyer staff and agents in the permissible uses of online research. At this point, attorneys cannot take refuge in the defense of ignorance. We refer this issue and any related issues to the Advisory Committee on Professional Ethics for further study and for consideration of amendments to our RPCs.

Opinion at 4. The Court also re-emphasized its conclusions about “the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms” later in its decision (at 32-36).

            Thus, the Supreme Court of New Jersey addressed head-on the admonition of comedian and former U.S. Senator Al Franken, who wrote, “Our laws need to reflect the evolution of technology and the changing expectations of American society.” 

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For any questions relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Florida Enjoined from Enforcing Law Targeting Some Social Media Platforms

Earlier this year, Florida enacted Senate Bill 7072 – The Stop Social Media Censorship Act – which imposed requirements and prohibitions on some, but not all, social media platforms relating to the speech hosted on their websites. The Act was scheduled to take effect on July 1, 2021, but on June 30, 2021, Judge Robert L. Hinkle of the United States District Court for the Northern District of Florida entered a preliminary injunction in NetChoice LLC, et al. v. Ashley Brooke Moody, et al., which enjoined various Florida officials from taking any steps to enforce the Act because he found the view-point based legislation was preempted by federal law and violated the First Amendment.            

The Florida legislation at issue, among other things, prohibited social media platforms from:

  • Barring candidates for office from their sites;
  • Using an algorithm to put a candidate’s posts in the feed of a user who wished to receive it or to exclude the post from the feed of a user who does not wish to receive it;
  • Taking action to “censor, deplatform or shadow ban” a “journalistic enterprise” based on the content of its publication or broadcast; and
  • Changing their user rules, terms and agreements more often than every 30 days
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