Internet &amp; Social Media Law Blog

As a general rule, a website is not held liable for the content its users post on its platform. The Communications Decency Act (CDA) immunizes websites from lawsuits by not treating the website as the publisher or speaker of content posted by its users. It also allows websites to edit and remove content that could be obscene, lewd and objectionable without the website incurring liability for failure to remove other similar content. Courts have even gone as far as not holding websites liable for defamatory, offensive or infringing posts by its users even when such websites invite visitors to post potentially defamatory statements, so long as the website did not materially contribute to the actual offensive content of the post. While courts have applied this protection broadly, a recent Ninth Circuit decision declined to do so.

Posted June 22, 2016

News of Note for the Internet-Minded – 6/22/16

To the surprise of no one, Instagram is pretty popular; Samsung puts a billion dollars into the Internet of Things; the FCC’s trying to decide if radio noise is a problem; and there’s an approach to virtual reality that won’t make you want to throw up.

Posted June 14, 2016

Six Ways Site Design Can Potentially Render TOS Agreements Unenforceable

Our recent posts on successful legal challenges to the arbitration clauses in browsewrap and clickwrap agreements have a theme in common—even the most thorough and well-worded agreement can be rendered unenforceable by website design. With this in mind, we have put together a list of otherwise innocuous web design components that can be the bane of both browsewrap and clickwrap alike. Note, failure to pay attention to any one of these will not necessarily render your agreement weightless—many of these are culprits only when grouped together—but they are also each eminently addressable, so why not avoid potential pitfalls in the first place?

Posted June 9, 2016

Clickwrap Kryptonite: Don’t Let Site Design Undermine Your TOS

We previously covered the developing legal issues with browsewrap agreements and the importance of reviewing and updating any such agreement to ensure users are bound to the terms. In a browsewrap agreement, the user’s assent to the agreement’s terms is inferred from the user’s use of the website. Often, the terms of a browsewrap agreement are accessible from a hyperlink placed on one or more webpages of the company’s website. As we mentioned in our initial post, browsewrap agreements have a close, usually more dependable relative—the “clickwrap” agreement. A clickwrap agreement requires the user to click a button to affirm assent to the agreement’s terms. As a result of this direct, affirmative action, many lawyers view clickwrap as a safer alternative than its browsewrap cousin.

Posted June 6, 2016

How Binding Is Your Browsewrap Agreement?

Anyone who has purchased a product online or downloaded software for a computer, tablet or mobile device has likely encountered “browsewrap” and “clickwrap” agreements. Such agreements are the bread and butter of companies that sell or license products or provide services via websites or web applications. Clickwrap agreements require a user to affirmatively click a button to affirm his or her assent to the agreement’s terms, whereas with a browsewrap agreement, the user’s assent to the agreement’s terms is inferred from the user’s use of the website. (Often, the terms of a browsewrap agreement are accessible from a hyperlink placed on one or more webpages of the company’s website.)

Posted May 31, 2016

Hulk Hogan’s Legal Leg Drop Sets Precedent for Celebrity Journalism

Famed wrestler Hulk Hogan’s $140 million trial verdict against Gawker Media for publishing a tape of him having relations with his best friend’s wife and using racially offensive language, sends a clear message that despite the proliferation of Internet journalism, social media, paparazzi, and the 24 hour news cycle, celebrities are still entitled to privacy in their most intimate moments—at least for now.

Posted May 24, 2016

LinkedIn Grapples with the Ripples of a 2012 Data Breach

Last week on the official LinkedIn blog, the company’s chief information security officer, Cory Scott, reported the company had become aware of an additional set of data that has just been released consisting of e-mail and hashed password combinations of more than 100 million LinkedIn members. This recent release is related to a 2012 unauthorized access and disclosure of LinkedIn members’ passwords:

Yesterday, we became aware of an additional set of data that had just been released that claims to be email and hashed password combinations of more than 100 million LinkedIn members from that same theft in 2012. We are taking immediate steps to invalidate the passwords of the accounts impacted, and we will contact those members to reset their passwords. We have no indication that this is as a result of a new security breach. –Linkedin Official Blog, May 18, 2016

Posted May 20, 2016

The CFPB’s Take on Arbitration Provisions Is Not a Friendly One

It’s no secret that the Consumer Financial Protection Bureau (CFPB) views arbitration agreements in contracts between financial services providers and consumers rather unfavorably. This antipathy has been maintained even after a 2011 Supreme Court decision (ATT Mobility LLC v. Concepcion) affirming the practice. Back in October, the bureau announced its consideration of a proposed rule that would prohibit this practice in some cases, and in other cases, require companies that use arbitration clauses to report information regarding claims filed and awards issued to the CFPB. On May 5^th, the CFPB released the proposed rule.

In their client alert, Arbitration Provisions Mauled by Consumer Watchdog, colleagues Christine Scheuneman, Amy Pierce and Andrew Caplan examine the rule in depth, pointing out some of its contradictions and areas in which the proposed rule may be susceptible to (the inevitable) legal challenges that will follow.

Posted May 17, 2016

Say Yes to the Redress: A Potential Shift in Copyright Law May Arm the Fashion Police

Until recently, social media has been one of the only recourses for fashion designers and labels that have had their designs knocked off. Take the Acquazurra “Wild Thing” sandal, for example. Acquazzura is a high-end shoe brand that designed and released the $785 sandal, identifiable by its “wild” fringe on the toes. Shortly after, Ivanka Trump released the “Hettie” sandal, an almost identical shoe which, priced at $145, was almost $600 less expensive.

by Pillsbury Winthrop Shaw Pittman

Posted May 12, 2016

News of Note for the Internet-Minded – 5/12/16

Pillsbury Winthrop Shaw Pittman

AI teaching assistants and the NBA’s interest in VR aside, this week’s roundup has plenty of darker-themed stories, including torture-proof passwords, live-streamed suicide and death while AR gaming.