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N.J. App. Div. Permits Teacher’s Defamation Suit Based on Social Media Posts to Proceed

/ Rob Nussbaum

On October 24, 2024, the Appellate Division in New Jersey issued a decision in Herman v. Muhammad affirming a trial court’s denial of a motion to dismiss a defamation and false light invasion of privacy action filed by a teacher against a woman who made Instagram and Facebook posts which were allegedly false and malicious. The social media posts concerned the alleged removal of a seven-year-old student’s hijab in class by the teacher.

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Will it be the End of §230 as We Know It?

/ Rob Nussbaum / 1 Comment

Section 230 of the Communications Decency Act, 47 U.S.C. §230(c)(1) (hereafter “§230”), protects internet services, like Facebook, Twitter, and the like, from liability based on words used by third parties who use their platforms. The August 23, 2022 Trending Law Blog post discussed how 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 declined to decide 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.” At that time, Justice Clarence Thomas stated that while he agreed the Texas matter was not appropriate for review by the Supreme Court, he did call for the Court “to address the proper scope of immunity under §230” in a future appropriate case. Apparently that case has arrived.

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A Possible ‘High Noon’ for Social Media Platforms Looms at the Supreme Court

/ Rob Nussbaum / 3 Comments

The August 13, 2021 Trending Law Blog post discussed how, in NetChoice, LLC v. Attorney General, State of Florida, 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. Thereafter, the September 8, 2022 Trending Law Blog post discussed how in December 2021 a federal court in Texas enjoined enforcement of a law in the case of NetChoice, LLC v. Paxton which would have limited a large number of social media companies from moderating content. The Florida case was ultimately appealed to the United States Court of Appeals for the Eleventh Circuit while the Texas case was appealed to the United States Court of Appeals for the Fifth Circuit.

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Section 230 Dodges Another Judicial Bullet

/ Rob Nussbaum / 1 Comment

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

/ Rob Nussbaum

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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