Digital Media Lawyer Blog

A May 7, 2009 ruling by the Ninth Circuit means that digital media companies will have to be careful about what they say when dealing with a complaint about an offending post. In another of a series of recent cases that have begun to find limits in the "immunity" provided by the Communications Decency Act, on May 7, 2009, a Ninth Circuit three-judge panel held that the CDA provides no protection to an internet service provider who promises, but then fails, to remove content provided by a third party.

Barnes v. Yahoo!, Inc. __ F.3d___, 2009 WL 1232367 (9th Cir. 2009) concerned an alleged fact situation in which after the breakup of their relations, the plaintiff's boyfriend began to post profiles regarding the plaintiff (Barnes) on Yahoo websites and in Yahoo chatrooms. These posts contained nude photos of the plaintiff, a solicitation to engage in sexual intercourse and provided the address and phone number at her place of employment. Before long, Barnes was peppered with emails, phone calls and personal visits, "all in expectation of sex." 2009 WL 1232367 at *1. A virtual repeat of Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003).

Barnes sent Yahoo several formal requests for the takedown of the posts. Nothing happened. Then, the day before a local news outlet was preparing to broadcast a report on the incident, Yahoo's director of communications called Barnes, asked her to fax directly the previous statements she had mailed and told Barnes that she would "personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it." 2009 WL 1232367 at *1.

Barnes claims that she relied on this statement and took no further action on the profiles. However, apparently still failing to get any action, two months later Barnes filed this suit against Yahoo. Shortly thereafter, the profiles disappeared. Id.

Barnes sued Yahoo under two causes of action: (i) negligent undertaking, and (ii) promissory estoppel. "Negligent undertaking" is based on the principal that if you decide to help someone else out, as a Good Samaritan, to protect their person or things, you are subject to liability if you act negligently. "Promissory estoppel" is based on the idea that if you make a promise, with the intent that a third party rely on it, you can be held liable if you fail to perform that promise.

In response to Barnes' complaint, Yahoo argued that it was immune from liability under the Communications Decency Act (47 U.S.C. § 230(c)). The Ninth Circuit agreed as to the negligent undertaking claim, but not as to promissory estoppel. The difference for the Court was the nature of the specific act on which Yahoo was being sued under the two legal theories -- Yahoo's failure to take down the posts v. Yahoo's failure to keep its promise to take down the posts.

Continue reading "Barnes v. Yahoo: No Communications Decency Act Protection for Internet Service Provider Who Fails to Keep Its Promise to Take Down an Offending Post" »

The actions taken by craigslist in its recent disputes with the state attorneys general appear contradictory.

Craigslist has now twice agreed to measures to limit its "erotic services" section. On November 6, 2008, craigslist signed a joint statement with 43 state attorneys general under which it agreed to do such things as create a system to identify and remove pornography and to charge fees for ads posted to its "erotic services" section with the goal of reducing the number of such ads. (Fn1) Then, on May 5, 2009, South Carolina Attorney General Henry McMaster sent a letter to craigslist stating that the site would be subject to criminal prosecution if it did not remove all material that made it possible for third parties to post content soliciting prostitution or containing pornographic images. According to press reports, Attorney General McMaster was considering actions against craigslist for "aiding and abetting prostitution, obscenity and conspiracy." (Fn2) As a result, on May 12, craigslist responded by voluntarily terminating its "erotic services" subcategory and replacing it with an "adult" category. This new category was only to be for "lawful activities", and craigslist agreed to manually screen all ads before they appeared on the site and to reject all ads that contained nudity or appeared to offer illegal services.

However, at the same time, craigslist has continued to insist that it had no legal obligation to take these actions, because of its immunity under the Communications Decency Act and U.S. Constitutional protections. According to the May 20, 2009 complaint it filed in the U.S. District Court of South Carolina to prevent the McMaster from initiating criminal action against it, craigslist's decisions to modify its site were merely "voluntary actions to deter abuse of its website as a matter of good corporate citizenship . . . ."

There is no question that craigslist's changes to its website make good sense from public relations and corporate citizenship standpoints. But did recent court decisions regarding the scope of the Communications Decency Act inform these changes as well?

Continue reading "Did Recent Decisions on the Scope of Immunity under the Communications Decency Act Inform Craigslist's Decision to Modify Its Site?" »

Power.com is a social networking aggregator, boasting over 5 million users in India and Brazil, that launched business in the U.S. in November 2008. It permits users to simultaneously log-in to multiple social networking sites, such as Myspace and Facebook and instant messaging sites, such as Twitter.

While some website operators might consider this service as free advertising, other might see it as posing the danger of supplanting the websites it aggregates. In fact, Power.com has already drawn significant lawsuit fire. In December 2008, shortly after the site premiered, Power.com was sued by Facebook. (Facebook, Inc. v. Power Ventures, Inc., et al., U.S.D.C., Northern District of California, Case No. C 08-5780).

Facebook claimed that Power.com was circumventing Facebook's protocols for accessing its information, infringing on Facebook's trademark, and inducing Facebook users to provide them with email addresses of Facebook contacts for the purposes of sending commercial messages that it falsely stated came from "The Facebook Team." Facebook brought claims against Power.com under numerous legal theories, including violation of the CAN-SPAM act (15 USC §7701), copyright and trademark infringement, violation of the Digital Millennium Copyright Act and violation of California's unfair competition law.

In response, Power.com brought a motion to dismiss/motion for more definite statement -challenging the sufficiency of the allegations in the complaint. However, the bar to survive such a motion in Federal court is not very high. Under Federal rules, a plaintiff generally does not have to be specific about the facts that underlie the claims he brings in a lawsuit. Federal courts deem it sufficient that the complaint merely contain sufficient facts to give the defendant "fair notice" of the nature of the claim and its basis. The courts rely on discovery and law and summary judgment to weed out unmeritorious claims. The main exception to this rule is for claims alleging fraud. For these claims, the complaint must state what the fraudulent representations were, who said them and where and when.

These rules largely dictated the outcome here. After Facebook filed its opposition, Power.com actually withdrew its motion as to the CAN-SPAM claims. According to Power.com's reply brief, this did not amount to a concession that the claims had merit, but merely that Facebook had met the pleading standards for these claims.

Continue reading "Facebook Suit Against Social Networking Aggregator Power.com Survives Initial Court Test" »

A recent Wall Street Journal article highlights an important fact about digital media immunity acts such as the Communications Decency Act and the Digital Millennium Copyright Act. These acts generally only protect information intermediaries, not original authors of content.

According to the May 21, 2009 article, "Bloggers, Beware: What You Write Can Get You Sued", a blogger made several posts in online forums about a hacker attack on a company that makes software used to track sales for adult entertainment sites. The blogger allegedly claimed that personal information of the sites' customers had been compromised. While the blogger may have thought that her intentions were noble, the company sued her for defamation, contending that no consumer data was compromised and accusing her of embarking on a campaign to defame it.

In this situation, the Communications Decency Act (47 USC Sec. 230(c)(2)) would likely provide immunity to the online forums on which the blogger posted her statements. However, it would not immunize the blogger, assuming that she was the original source of the allegedly defamatory statements, because it only provides protection for "information provided by another information content provider."

Similarly, the Digital Millennium Copyright Act (17 USC Sec. 512) would also likely provide immunity for any claims of copyright infringement to the internet service provider. However, it also would not immunize the blogger, because its relevant provision only provides protection for "infringement of copyright by reason of storage at the direction of a user". (Sec. 512(c)).

The general public is aware that the film and recording industries have been able to sue users of file sharing sites for copyright infringement. However, digital media users may not be aware that blogging or posting information on an interactive website can expose them to a wide variety of speech-related tort suits, as well. Because the internet enables messages to be broadcast easily to a massive audience, it actually vastly increases the chance that a thoughtless word can cause damage, and thus give rise to legal liability on the part of the author.

So what do I recommend that a person, like me, who creates original digital media material, do to protect him/herself?

First of all, recognize that you are an author of material that is being published to a potentially vast audience. Second, before you hit the "post" button, review what you have written and see if it contains material about a third party that they might claim constitutes a threat to their safety, is false, injures their reputation, casts them in a bad light or releases personal information about them. Third, also consider whether your use of third party materials is fair. Is your post really nothing more than a copy of someone else's material? Have you credited the third-party sources you used?

The unconsidered potential for liability when posting on the internet reminds me of an incident from Ronald Reagan's presidency. On August 11, 1984, during a mike check before his weekly Saturday radio address, President Reagan made the quip "My fellow Americans, I'm pleased to tell you today that I've signed legislation that will outlaw Russia forever. We begin bombing in five minutes." While he intended this as a private joke, the statement was leaked to the public and created a major international incident, reportedly causing the Soviet Army temporarily to go on alert.

The internet can be an even louder megaphone. When you post, don't forget that people are listening.

David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.