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How important are online reviews in your shopping experience? Many rely heavily on consumer reviews in order to generate business. But what happens when instead of providing customers the candid information that they deserve, companies try to silence their critics in order to improve their online reputation?

In recent years, companies selling products and services have included non-disparagement clauses (“gag clauses”) in their contracts in hopes of curtailing online criticism. Gag clauses are aimed at discouraging customers from writing honest reviews that criticize the company—and punished customers for their negative reviews in the form of liquidated damages. The problem is such clauses are illegal. In 2016, as we had previously written, Congress passed the Consumer Review Fairness Act, which prohibits companies from implementing gag clauses in non-negotiable consumer form contracts. In so doing, lawmakers sought to encourage free speech, consumer rights and the integrity of truthful criticism regarding goods and services sold online.

As a wise person once said, truth often is stranger than fiction. The US Court of Appeals for the Fourth District of Texas (the “Appellate Court”) recently decided Hosseini v. Hansen, a bizarre case involving the intertwining of a tax preparation business, primate trainers and enthusiasts, and a defamation claim. Despite the unique factual circumstances, the case provided good general insight into social media use as it relates to defamation.

When Elon Musk, the Chairman and Chief Executive Officer of Tesla, Inc. (“Tesla”), posted to social media on August 7, 2018, that he was considering taking Tesla private at $420 per share and had secured funding, he caused a ripple in the markets and gained the attention of the United States Securities and Exchange Commission (“SEC”). As a result of the statement, the SEC filed a lawsuit against Musk in the United States District Court for the Southern District of New York for allegedly violating Section 10(b) of the federal Securities Exchange Act of 1934 (the “Exchange Act”) and SEC Rule 10b-5 due to the allegedly false and misleading nature of Musk’s statements.

We have previously written about the U.S. legal landscape regarding consumers’ rights to post negative reviews of products or services on the internet, including some of the implications of the Consumer Review Fairness Act on these rights. The Consumer Review Fairness Act was passed in December of 2016 in response to some businesses’ efforts to prevent customers from giving honest reviews by signing non-disparagement or similar agreements as a condition to receiving a particular product or service.

This post concerns an issue involving the federal Communications Decency Act of 1996 (the “CDA”) and its relationship to rights and obligations of companies that provide a forum for reviews and ratings of businesses (the “review sites”), the reviewers, and the businesses that are reviewed. In July of this year, the Supreme Court of California issued an opinion, styled Hassell v. Bird, that analyzed the relationship of these entities and provided some guidance and clarity as to legal rights provided by the CDA in this context.

In a previous post, we addressed efforts by the Department of Homeland Security to collect certain information relating to immigrants’ use of social media for record-keeping and tracking purposes. Subsequently, on March 30, 2018, the State Department released a notice of a proposed rule that would require the collection of social media information in connection with an application for a Nonimmigrant Visa through what is called a DS-160.

We have previously written about the United States District Court for the Northern District of California’s (the “District Court”) dismissal of the plaintiffs’ complaint in Fields v. Twitter, Inc. We are back to provide an update after the case made its way to the United States Court of Appeals for the Ninth Circuit (the “Appellate Court”). The Appellate Court filed an Opinion on January 31, 2018, in which it affirmed the District Court’s dismissal of the plaintiffs’ claims.

The United States Department of Homeland Security (“DHS”) published, on September 18, 2017, in the Federal Register, a notice that it would begin collecting certain information relating to immigrants’ use of social media as part of the National File Tracking System of Records. Since 1944, so-called Alien Files have been the official record system of immigrants, who have each received an Alien Registration Number. These files have historically contained basic information, such as each immigrant’s name, date of birth, date of entry into the United States, country of birth, parents’ names, and naturalization information, if applicable. The files also generally include any record of interactions between each immigrant and the United States government.

Emoticons – the often whimsical hieroglyphics that most so affectionately know as “emojis” – have become ubiquitous in modern digital communication not only by individuals but also by corporations as part of their advertising and marketing campaigns on social media. Emojis have also begun appearing as evidence in court cases.

A short, but fascinating, discussion between several experts in the fields of computer science, hieroglyphics, and social media of the impact emojis have had on our language can be found here. The crux of the discussion is that emojis can have a profound impact on the way we communicate. Essentially, the inclusion of a single emoji can alter the meaning of the accompanying text. Alexandre Loktonov, AHRC Fellow at the Kluge Center and an expert on hieroglyphics, likens emojis to what are known as “deteriminatives” in Egyptian hieroglyphics, or “signs, which, without having a phonetic value of their own, can ‘color’ the meaning of the preceding word or phrase.” In recent years, the nature of emojis has been addressed in several lawsuits, proving that courts may be recognizing the importance these characters have begun to have with respect to our language and communication.

In 2017, the Indiana Commission on Judicial Qualifications (the “Commission”) issued an advisory opinion that the conveyance of information via microblogging platforms, such as Twitter, does not constitute prohibited “broadcasting” under Rule 2.17 of the Code of Judicial Conduct. Under Rule 2.17, judges are required to prohibit the broadcasting of courtroom proceedings to the public except under a narrow set of circumstances. Although this issue may seem geographically limited at first glance, courts and commissions around the country are considering this issue as microblogging activity becomes more prevalent.