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Generative AI is creating previously unimaginable possibilities for influencers and brands to engage with consumers. Rather than merely posting on social media, influencers will be able to utilize AI to have two-way conversations that feel authentic. Influencers can do this literally in their own voice, having unique dialogs with countless people at the same time.

Influencers and brands are accustomed to the rules governing what can be said on social media, but now they’ll need to start thinking about what sort of information they can elicit from their fans and consumers in the course of unique and unpredictable interactions, and what they can do with that information, because they will have the ability to gather more consumer information than ever before, and in ways that may be difficult to control.…

Continue Reading Let’s Chat: Influencers and Brands Testing the Waters of Generative AI Must Navigate Data Privacy and FTC Issues

The SEC has rung the bell again on a celebrity touting a crypto token offering without adequate disclosure of a paid role. On October 3, 2022, the Securities and Exchange Commission released its order instituting cease and desist proceedings against Kim Kardashian and detailing Kardashian’s violation of Section 17(b) of the Securities Act (see Administrative Proceeding File No. 3-21197). Kardashian came under scrutiny from the SEC after she promoted EthereumMax Tokens (Emax Tokens) via her Instagram account in June of 2021, near the height of the cryptocurrency market, without making the proper disclosures. The SEC had previously fined boxer Floyd Mayweather and rapper DJ Khaled in 2018 for similar violations of the SEC’s “anti-touting” rules.…

Continue Reading Oops they did it again – SEC brings Crypto Anti Touting Action against another celebrity – this time Kim Kardashian

The United States Court of Appeals for the Third Circuit recently upheld the federal cyberstalking statute against a constitutional challenge. See United States v. Ho Ka Yung, 37 F.4th 70 (3d Cir. 2022). The Third Circuit narrowly construed the statute’s intent element to require an intent to make the victim fear death or bodily injury or to cause the victim distress through threats or intimidation.

According to the opinion, the case begins with Yung’s application to Georgetown Law. The admission interview went poorly, and Yung was rejected. In turn, Yung allegedly embarked on a cyber-campaign against the unsuspecting interviewer, including creating fake blog posts as the interviewer bragging about raping women and children, filing false reports accusing the interviewer of sexual assault, and impersonating the interviewer’s wife in online sex ads. After the FBI became involved, Yung was charged with cyberstalking.…

Continue Reading Third Circuit Upholds Federal Cyberstalking Law

This article was previously published on Venable’s All About Advertising Law blog.

Background

Advertisers, e-commerce websites, affiliate networks, and publishers each play a large role in the development of the Internet. One reason they have been able to do so is Section 230 of the Communications Decency Act of 1996 (CDA), which immunizes online interactive services from liability arising from third-party content on their platforms. The CDA does so in twenty-six words:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Through this immunity, the CDA allows online services to host the speech of others, without assuming responsibility for what those users may say or do. No one disputes the premise that Section 230 fosters free expression and the creation of vibrant marketplaces for advertisers and merchants to efficiently and effectively reach consumers. Recently, however, confusion and controversy have arisen as to exactly who and what Section 230 does and does not protect, leading to divisions among court decisions and to calls for legislative “overhaul.” A quick review for merchants, advertisers, agencies, and affiliate networks seems desirable.…

Continue Reading An Advertiser’s Guide to Section 230 of the Communications Decency Act

This article was previously published on Venable’s All About Advertising Law blog.

A class action lawsuit filed against Kim Kardashian, Floyd Mayweather, and former professional basketball player Paul Pierce earlier this month underscores the need for celebrity endorsers to take care when they approach any endorsement activity in the cryptocurrency space.

The lawsuit alleges that the celebrities collaborated with Ethereum Max, a company offering ERC-20 cryptocurrency tokens (EMAX Tokens), and its executives to engage in a “pump-and-dump” scheme promoting investments in the company’s tokens. The complaint alleges that the three celebrity influencers misleadingly promoted EMAX Tokens to potential investors, touting the ability of investors to make significant returns due to the favorable “tokenomics” of the EMAX Tokens, when in fact the tokens were practically worthless. The class action alleges violations of California’s Unfair Competition Law, California’s Consumers Legal Remedies Act, aiding and abetting, and unjust enrichment/restitution.…

Continue Reading “Are You Guys Into Crypto???”: Celebrities Promoting Cryptocurrencies Become Class Action Targets

Well known for their highly publicized interactions with the legal system, Rose McGowan and her former defense attorney Jose Baez faced off this year over conflict of interest allegations in Baez v. McGowan, 2020 Ill. Cir. LEXIS 458 (2020).  Jose Baez is best known for his successful defense of Casey Anthony, a young woman tried for the murder of her two-year-old daughter in 2011, while actress, activist, and author Rose McGowan famously accused media producer Harvey Weinstein of raping her at the 1997 Sundance Film Festival.  McGowan is widely considered to be a fervent #MeToo supporter and touts nearly two million followers across her Twitter and Instagram profiles.

McGowan first hired Baez as her trial attorney in 2018 after McGowan was charged with felony possession of a controlled substance in Virginia.  The prosecution alleged that McGowan concealed a baggie of cocaine in her wallet, which was discovered after she accidentally left it behind on an airplane.  Although McGowan theorized that Weinstein paid off airline staff to plant the cocaine as part of a conspiracy to silence his rape accusers, she ultimately agreed to a plea deal and did not present the Weinstein theory to the court.…

Continue Reading Demonstrating the Strength of the “Opinion Defense,” Rose McGowan Defeats Defamation Suit

Lauded as the “the most important law protecting free speech”[1] and the law that “gave us the modern internet,”[2] Section 230 of the Communications Decency Act (Section 230) has been a fixture of recent internet policy debates and blamed for everything from the proliferation of sex trafficking[3] to enabling anti-conservative social media bias[4].

Section 230 says, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[5]

Those 26 words shield online platforms from liability arising from hosting or making available third-party or user-generated content.[6] In other words, online platforms are considered intermediaries that cannot be legally liable for what users post on their platforms. However, Section 230 does not provide immunity to the actual creator of content. The author of a defamatory post could still be held responsible for any defamatory material they post.…

Continue Reading Section 230 – Everything You Love and Hate About the Internet

On July 27, Melissane Velyvis successfully argued that a Domestic Violence Protective Order (the Order) was an unconstitutional prior restraint on her freedom of expression. Marin County Superior Court Judge Roy O. Chernus sustained Velyvis’ demurrer to a misdemeanor complaint brought against her for violating the Order in People v. Velyvis, Case No. CR211376A.

The Order prohibited Ms. Velyvis from posting anything on social media, blogs, or the internet regarding her ex-husband, Dr. John Velyvis, or his children. Dr. Velyvis applied for an order to curb posts on Ms. Velyvis’ blog, The Voice of Melissane Velyvis, which detailed the domestic abuse she allegedly suffered at the hands of Dr. Velyvis, and other events leading up to and resulting from the couple’s divorce. The blog describes Ms. Velyvis as a “survivor of non-fatal strangulation.”…

Continue Reading Blogger’s Descriptions of Domestic Violence Protected by Freedom of Expression

An increasing number of celebrities and social media personalities are endorsing the use of cannabidiol (CBD) products through social media. Many of these “influencers,” however, fail to account for and comply with the complex regulatory environment surrounding CBD advertisements. In the United States, the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) both limit the use of certain language in CBD endorsements. As these advertisements attempt to reach the broadest possible audience, violations by influencers are especially noticeable to regulators, who have stepped up their enforcement efforts in this area.
Continue Reading CBD Advertisements: What Celebrity Influencers Need to Know

On April 13, 2020, a federal district court in the Southern District of New York[1] held in Sinclair v. Ziff Davis, LLC, and Mashable, Inc., 180CV0790 (KMW) (Order), that an Instagram user who posted a photograph to a public account effectively gave Instagram the right to sublicense her photographs to a third party.  The Court held that the user therefore had no viable claim against the third party for copyright infringement.

The plaintiff user in this case was professional photographer Stephanie Sinclair (Plaintiff).  The co-defendant who licensed the photograph from Instagram was Mashable, Inc., a media and entertainment site (Mashable).  Plaintiff sued both Mashable and its parent company, Ziff Davis, LLC, for copyright infringement.…

Continue Reading Instagram Users: Post at Your Own Risk. Your Public Content May Be Legally Sublicensed