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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.

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

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.

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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.

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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.”

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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.

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

Venable attorneys Marcella Ballard and Kristen Ruisi recently participated in an MIP Global Trademark Forum panel on Responsible Advertising, Social Media and Influencers. With Marci moderating and Kristen presenting, the panel also included Jessica E. Cardon, deputy general counsel at Quality King Distributors; Lydia Cheuk, deputy general counsel at Away; and Melissa Moriarty, assistant general counsel at VaynerMedia. During their discussion, panelists shared the following insights:

  1. Brands are relying more on influencers, leading to increased FTC scrutiny

Kristen spoke about how the FTC is becoming stricter in its enforcement of its guidelines, which strive to prevent influencers from making false claims about products or services they haven’t tried and ensure that consumers are aware of advertising relationships. While the responsibility to disclose relationships with the brand they are promoting or endorsing ultimately rests with the influencer, brands still have to work with influencers to ensure they are meeting their disclosure obligations.

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Continue Reading Panel Recap: Responsible Advertising, Social Media and Influencers

A recent decision from a United States District Court in New York dismissing a defamation claim against cable television host and national correspondent Joy Reid provides a mixed bag of findings in the world of defamation lawsuits. The central issue in Roslyn La Liberte v. Joy Reid was whether the defendant, Reid, had defamed the plaintiff when she re-posted content about La Liberte on social media. Although the decision is generally a garden variety dismissal of defamation claims, the court also rejected the defendant’s Section 230 of the Communications Decency Act (CDA) defense and applied California’s anti-SLAPP statute to award Reid her attorneys’ fees and costs.

The posts at issue concerned a photograph of La Liberte, in which she appears to be shouting at a teenage boy. The photograph was taken at a city council meeting for a highly politicized senate bill, intended to limit local law enforcement’s cooperation with federal immigration authorities. A few days after the photo was taken, an activist named Alan Vargas tweeted the image and suggested that La Liberte was yelling: “You are going to be the first deported . . . dirty Mexican.” Reid re-tweeted the photograph on two separate occasions, first on social media along with the caption:

He showed up to rally to defend immigrants . . . She showed up too, in her MAGA hat, and screamed, “You are going to be the first deported” . . . “dirty Mexican!” He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.

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Continue Reading Take More Than a New York Minute Before You Re-Tweet

A federal district court recently dismissed an invasion of privacy and infliction of emotional distress action against Tumblr brought by a Connecticut woman whose ex-boyfriend had uploaded a series of nude photographs on social media and the revenge porn site myex.com. The court found that Section 230(c)(1) of the Communications Decency Act (CDA) expressly preempted the woman’s claims, which treated Tumblr like the “publisher” or “speaker” of the offensive postings.

Although the nude photographs of the plaintiff were taken down, they soon migrated to Tumblr, where users could view the photos, along with her name, links to her social media accounts, and other identifying personal information. The plaintiff repeatedly engaged Tumblr to remove the unauthorized intimate photographs, only to have the images reposted by third parties following removal. The plaintiff ultimately initiated a lawsuit against Tumblr, claiming it did not preemptively remove the photographs even after receiving repeated notice of unauthorized uploads.

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Continue Reading Court Finds Communications Decency Act Protects Tumblr Against Revenge Porn Claim

Supermodel Jelena Noura “Gigi” Hadid was not the first celebrity to be photographed by paparazzi and then to post the resulting photo to social media, nor was she the first to be subsequently sued for copyright infringement for doing so. Other celebrities, including Jennifer Lopez and, most recently, Victoria Beckham, have made news for the same situation.

This trend falls into an interesting intersection of two significant tenets of law: a celebrity’s right of publicity in their own image and a photographer’s right to copyright their artistic work. The district court dismissed the case due to a lack of a copyright registration. In addition to that defense, though, her attorneys also raised the defenses of fair use and implied license. The second may have begun paving the way for future legal challenges to clarify these issues by raising a novel argument—implied license—alongside the more typical defense of fair use.

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Continue Reading Are Paparazzi Images Fair Game for Social Media?