FCC Votes to Adopt Order Preserving “Net Neutrality”

On February 26, 2015, the Federal Communications Commission (“FCC”) voted by a 3-2 margin to adopt the FCC’s Open Internet Order, which sets rules forbidding Internet Service Providers (“ISPs”) from: (i) blocking legal content, applications, services, or non-harmful devices, (ii) throttling lawful Internet traffic on the basis of content, applications, services, or non-harmful devices, or (iii) allowing paid prioritization that favors some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind (i.e. no “fast lanes”). The rules preserve the concept of “net neutrality”, which is the idea that ISPs should be required to provide neutral and open access to all Internet users, rather than manage different types of Internet traffic in different ways and for different rates.

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    Facebook Allows Users to Appoint Posthumous “Legacy Contact”

    On February 12, 2015, Facebook implemented a new policy that provides users the option to designate a “legacy contact” to manage their accounts after death. The legacy contact will be able to write a post to be displayed at the top of the decedent’s memorialized Timeline, respond to new friend requests, and update the account’s profile picture and cover photo. However, the contact will not be able to see the decedent’s private messages.

     

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      Man Enjoined from Facebook for Creating Numerous Fake Accounts and Related Misconduct

      On January 8, 2015, the U.S. District Court for the Northern District of California entered a default judgment and a permanent injunction against an individual accused of creating more than seventy accounts after Facebook sent cease and desist letters to him. Facebook, Inc. v. Grunin, 2015 BL 3625, N.D. Cal., No. 3:14-cv-02323-WHA, 1/8/15.

      The Court found that defendant:

      (1) “breached Facebook’s Terms [of Use] by placing ads containing sexually provocative content, running deceptive ads, transferring accounts without Facebook’s permission, providing false information to Facebook, continuing to access Facebook after revocation, and failing to pay for advertisements” (Id. at *5);

      (2) fraudulently “provided Facebook false information so that he could obtain advertising accounts” causing “Facebook to provide at least $340,000 in unpaid ads” (Id. at *6); and

      (3) violated the Computer Fraud and Abuse Act, Act, 18 U.S.C. 1030, et seq. and the California Comprehensive Computer Data Access and Fraud Act, California Penal Code Section 502, by intentionally circumventing Facebook’s technical measures to disable his access “by impersonating others to obtain Facebook accounts to run ads” (Id. at *8).

      The defendant was enjoined from accessing or using any Facebook website or service. The Court ordered further briefing on claimed damages and fees, and that a copy of its order be forwarded to the United States Attorney for possible investigation.

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        Mugshot Publishers Cannot Charge to Take Down Images

        Senate Bill 1027 came into effect on January 1, 2015. The bill adds Section 1798.91.1 to the Civil Code, and makes it unlawful for a publisher of a booking photograph to request, require, or accept a fee or other consideration from a photographed individual to remove, correct, change, or refrain from publishing or otherwise disseminating the photograph. An aggrieved party may bring a civil action against the violator for damages in an amount equal to the greater of $1,000 per violation or the actual damages suffered from the harm, as well as any other legal or equitable relief available. It also allows for recovery of costs and attorneys’ fees.

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          California Revenge Porn Law Amended to Include Selfies

          Senate Bill 1255 came into effect on January 1, 2015. The bill amended Section 647 of the Penal Code, which provided that a person who caused emotional distress by distributing an image of another identifiable person’s intimate body parts, where the parties understood the image was to remain private, was guilty of disorderly conduct – a misdemeanor. The amended provision provides that a person who causes emotional distress by intentionally distributing an image of another identifiable person’s intimate body parts, or an image of the person depicted engaging in sexual acts (i.e. a “selfie”), where the parties understood the image was to remain private, is guilty of disorderly conduct. As of July 1, 2015, a related assembly bill will add Section 1708.85 to the Civil Code, which creates a private right of action that permits an aggrieved party to bring a civil suit against the violator for harm related to invasion of privacy, as well as any other legal or equitable relief available, including an injunction. It also allows for recovery of costs and attorneys’ fees, and permits a plaintiff to proceed using a pseudonym rather than his or her true name.

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            Snapchat Settles Federal Trade Commission Charges

            On December 23, 2014, the Federal Trade Commission (“FTC”) approved a final order settling charges against Snapchat that it misled consumers in telling them messages sent over the service would disappear. The FTC’s initial complaint, first announced in May of 2014, further alleged that Snapchat misrepresented the extent of its data collection practices and did not adequately protect consumers’ data. As part of the settlement, Snapchat is required to implement a privacy program that will be monitored for the next 20 years.

             

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              Defamation Statute’s “Retraction Demand” Provision Does Not Apply to Online Yelp Review

              In Pham v. Lee et al., Case No. 1-12-CV-228332 (Cal. Ct. App., 6th Dist., order entered December 11, 2014), the California Court of Appeal held that the retraction demand provision of California’s defamation statute did not apply to an online review. Cal. Civ. Code section 48a states: “[i]n any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast…” The court held this language expressly limited the provision to libel published in newspapers or slander by radio broadcast. The case involved an ophthalmologist, Dr. Randal Pham, who filed a defamation action against Jenny and Alvin Lee (“Lees”) for reviews they published about him online. The Lees moved to strike the suit under California’s anti-SLAPP statute, and the trial court denied the motion. On appeal, the Lees contended that Dr. Pham’s action must be stricken because he failed to demand a retraction under Cal. Civ. Code section 48a. The appeal court found this argument meritless, citing the provision’s limiting language and the fact it provides no grounds for a motion to strike. The appeal court affirmed the trial court’s judgment, concluding Dr. Pham had shown a probability of prevailing on the merits, and that the trial court didn’t err in denying the motion to strike.

               

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                Ninth Circuit Blocks California Law Requiring Sex Offenders Report Online Activities

                In Doe v. Harris, Case No. 13-15263 (U.S. Court of Appeals, Ninth Circuit, order entered November 18, 2014), the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s order preliminarily enjoining provisions of the Californians Against Sexual Exploitation Act (“Act”). The Act seeks, inter alia, to update reporting obligations of registered sex offenders by requiring they provide a list of all Internet identifiers they have established and of all Internet service providers they use. The Ninth Circuit agreed with the district court that the Act imposes a substantial burden on offenders’ ability to engage in legitimate online speech, including anonymous speech, as protected by the First Amendment. It concluded that the Act unnecessarily chills protected speech by not making clear what offenders are required to report, providing insufficient safeguards to prevent the public release of reported information, and because the 24-hour reporting requirement is onerous and overbroad. The Ninth Circuit concluded that appellees were likely to succeed on the merits of their First Amendment challenge and that the district court did not abuse its discretion in finding that the elements for obtaining a preliminary injunction had been satisfied.

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                  United Airlines, Orbitz Sue Entrepreneur Over Site on How to Land Cheap Flights

                  In United Airlines Inc. et al. v. Zaman, Case No. 1:14-cv-09214 (N.D. Ill., E. Div., complaint filed November 17, 2014), United Airlines and Orbitz sued to prevent Aktarer Zaman and his Web site skiplagged.com from helping flyers find “hidden city” tickets that the companies claim undermine their profits. Hidden city ticketing involves booking a layover and purposely missing the second flight, a practice that can save travelers money but is forbidden by many airlines, including United. Among the stated concerns is United’s resulting inability to count passengers, which affects fuel calculations and causes delays. The complaint alleges that Zaman “intentionally and maliciously” interfered with industry relationships by “promoting prohibited forms of travel.” It includes claims for unfair competition under Lanham Act, 15 U.S.C. Section 1125(a), tortious interference with contract, breach of contract, and misappropriation. Zaman argues the site merely organizes publicly available information and that skiplagged.com receives no compensation for tickets purchased.

                   

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                    Information in Email Body May Overcome Otherwise Actionable Header, Subject Line

                    In Rosolowski et al. v. Guthy-Renker LLC, Case No. B250951 (Cal. Ct. App., 2nd Dist., Div. 3, order entered October 29, 2014), a California court of appeals held that a header in a commercial email does not misrepresent the sender’s identity simply because it fails to identify the name of the entity that sent it, or because it fails to identify an entity with a traceable domain name, as long as the sender’s identity is readily ascertainable from the email body. California Business & Professions Code section 17529.5 prohibits email ads with falsified, misrepresented, or forged header information, or that contain a subject line likely to mislead a recipient about a material fact regarding the contents or subject matter of the message. In this case, defendant’s emails were ads for its consumer brands and the emails provided a link to its Web site, an unsubscribe notice, and physical address. The bodies also clarified that the free gift mentioned in the “subject” line was contingent on a purchase, although the subject line did not refer to the purchase agreement.

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