When is it okay to use social media to make fun of people?

There is news from California that discusses a Facebook page called 530 Fatties that was created to collect photos of and poke fun at obese people. It’s a rude project, and sets the context for discussing some intriguing legal and normative issues.

Apparently the site collects photos that are taken in public. One generally doesn’t have a privacy interest in being photographed while in public places. And that seems pretty straightforward if you stop and think about it — you’re in public after all. But should technology change that legal analysis? Mobile devices with good cameras connected to high speed broadband networks make creation, sharing and shaming much easier than it used to be. A population equipped with these means essentially turns all public space into a panopticon. Does that mean the individual should be given more of something-like-privacy when in public? If you think that’s crazy, consider it in light of what Justice Sotomayor wrote in her concurrence in the 2012 case of U.S. v. Jones: “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables [one] to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

Apart from privacy harms, what else is at play here? For the same reasons that mobile cameras + social media jeopardizes traditional privacy assurances, the combination can magnify the emotional harms against a person. The public shaming that modern technology occasions can inflict deeper wounds because of the greater spatial and temporal characteristics of the medium. One can now easily distribute a photo or other content to countless individuals, and since the web means the end of forgetting, that content may be around for much longer than the typical human memory.

Against these concerns are the free speech interests of the speaking parties. In the U.S. especially, it’s hardwired into our sensibilities that each of us has great freedom to speak and otherwise express ourselves. The traditional First Amendment analysis will protect speech — even if it offends — unless there is something truly unlawful about it. For example, there is no free speech right to defame, to distribute obscene materials, or to use “fighting words.” Certain forms of harassment fall into the category of unprotected speech. How should we examine the role that technology plays in moving what would otherwise be playground-like bullying (like calling someone a fatty) to unlawful speech that can subject one to civil or even criminal liability? Is the impact that technology’s use makes even a valid issue to discuss?

Finally, we should examine the responsibility of the intermediaries here. A social media platform generally is going to be protected by the Communications Decency Act at 47 USC 230 from liability for third party content. But we should discuss the roles of the intermediary in terms other than pure legal ones. Many social media platforms are proactive in taking down otherwise lawful content that has the tendency to offend. The pervasiveness of social media underscores the power that these platforms have to shape normative values around what is appropriate behavior among individuals. This power is indeed potentially greater than any legal or governmental power to constrain the generation and distribution of content.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

No Section 230 immunity for healthcare software provider

Company could be liable for modifications made to its software that provided abbreviated third-party warnings for prescription drugs.

Cases dealing with the Communications Decency Act often involve websites. See, for example, the recent decision from the Sixth Circuit involving thedirty.com, and earlier cases about Roommates.com and Amazon. But this case considered a sort of unique suggested application of Section 230 immunity. The question was whether a provider of software that facilitated the delivery of prescription monographs (including warning information) could claim immunity. It’s unusual for Section 230 to show up in a products liability/personal injury action, but that is how it happened here.

Plaintiff suffered blindness and other injuries allegedly from taking medication she says she would not have taken had it been accompanied with certain warnings. She sued several defendants, including a software company that provided the technology whereby warnings drafted by third parties were provided to pharmacy retailers.

Defendant software company moved to dismiss on several grounds, including immunity under the Communications Decency Act, 47 U.S.C. 230. The trial court denied the motion to dismiss and defendant sought review. On appeal, the court affirmed the denial of the motion to dismiss, holding that Section 230 immunity did not apply.

At the request of the retailer that sold plaintiff her medicine, defendant software company modified its software to provide only abbreviated product warnings. Plaintiff’s claims against defendant arose from that modification.

Defendant argued that Section 230 immunity should protect it because defendant did not play any role in the decisions of the product warning. Instead, defendant was an independent provider of software that distributed drug information to pharmacy customers. Its software enabled pharmacies to access a third party’s database of product warnings. Defendant did not author the warnings but instead, provided the information under an authorization in a data license agreement. Defendant thus functioned as a pass through entity to distribute warnings that were prepared by third parties to retailers selling prescription drugs, and were printed and distributed to the individual customer when a prescription was filled.

The court found unpersuasive defendant’s claim that Section 230 immunized it from liability for providing electronic access to third party warnings. Section 230 provides, in relevant part, that (1) “[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” and (2) “[n]o cause of action may be brought and no liability may be imposed under any State or local rule that is inconsistent with this section.”

It held that plaintiff’s claim against defendant did not arise from defendant’s role as the software or service provider that enabled the retailer to access the third-party drafted warnings. Instead, the court found that plaintiff’s claim arose from defendant’s modification of its software to allow the retailer to distribute abbreviated drug monographs that automatically omitted warnings of serious risks. The appellate court agreed with the trial court which found, “this is not a case in which a defendant merely distributed information from a third party author or publisher.” Instead, in the court’s view, defendant’s conduct in modifying the software so that only abbreviated warnings would appear, it participated in creating or modifying the content.

Hardin v. PDX, Inc., 2014 WL 2768863 (Cal. App. 1st June 19, 2014)

Sixth Circuit holds thedirty.com entitled to Section 230 immunity

Plaintiff Jones (a high school teacher and Cincinnati Bengals cheerleader) sued the website thedirty.com and its operator for defamation over a number of third party posts that said mean things about plaintiff. Defendants moved for summary judgment, arguing that the Communications Decency Act — 47 USC § 230(c)(1) — afforded them immunity from liability for the content created by third parties. Articulating a “goofy legal standard,” the district court denied the motion, and the case was tried twice. The first trial ended in a mistrial, and the second time the jury found in favor of plaintiff.

Defendants sought review with the Sixth Circuit Court of Appeals on the issue of whether whether the district court erred in denying defendants’ motion for judgment as a matter of law by holding that the CDA did not bar plaintiff’s state tort claims. On appeal, the court reversed the district court and ordered that judgment as a matter of law be entered in defendants’ favor.

Section 230(c)(1) provides that “[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.” At its core, § 230 grants immunity to defendant service providers in lawsuits seeking to hold the service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.

But the grant of immunity is not without limits. It applies only to the extent that an interactive computer service provider is not also the information content provider of the content at issue. A defendant is not entitled to protection from claims based on the publication of information if the defendant is responsible, in whole or in part, for the creation or development of the information.

The district court held that “a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a ‘creator’ or ‘developer’ of that content and is not entitled to immunity.” Thus, the district court concluded that “[d]efendants, when they re-published the matters in evidence, had the same duties and liabilities for re-publishing libelous material as the author of such materials.”

The appellate court held that the district court’s test for what constitutes “creation” or “development” was too broad. Instead, the court looked to the Ninth Circuit’s decision in Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) and adopted the material contribution test from that opinion:

[W]e interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.

In the Sixth Circuit’s language, “[A] material contribution to the alleged illegality of the content does not mean merely taking action that is necessary to the display of allegedly illegal content. Rather, it means being responsible for what makes the displayed content allegedly unlawful.”

In this case, the defendants did not author the statements at issue. But they did select the statements for publication. The court held that defendants did not materially contribute to the defamatory content of the statements simply because those posts were selected for publication. Moreover, the website did not require users to post illegal or actionable content as a condition of use. The website’s content submission form simply instructed users generally to submit content. The court found the tool to be neutral (both in orientation and design) as to what third parties submit. Accordingly, the website design did not constitute a material contribution to any defamatory speech that was uploaded.

Jones v. Dirty World, No. 13-5946 (6th Cir. June 16, 2014)

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media. Contact him.

Website operators not liable for third party comments

Spreadbury v. Bitterroot Public Library, 2012 WL 734163 (D. Montana, March 6, 2012)

Plaintiff was upset at some local government officials, and ended up getting arrested for allegedly trespassing at the public library. Local newspapers covered the story, including on their websites. Some online commenters said mean things about plaintiff, so plaintiff sued a whole slew of defendants, including the newspapers (as website operators).

The court threw out the claims over the online comments. It held that the Communications Decency Act at 47 U.S.C. 230 immunized the website operators from liability over the third party content.

Defendant argued that the websites were not protected by Section 230 because they were not “providers of interactive computer services” of the same ilk as AOL and Yahoo. The court soundly rejected that argument. It found that the websites provided a “neutral tool” and offered a “simple generic prompt” for subscribers to comment about articles. The website operators did not develop or select the comments, require or encourage readers to make defamatory statements, or edit comments to make them defamatory.

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