Photo of Caleb Segrest (US)

Caleb Segrest (US)

Subscribe to Caleb Segrest (US)'s Posts
Contact:Read more about Caleb Segrest (US)

The United States District Court for the Southern District of New York ruled, on January 18, 2017, on a defendant’s motion to dismiss replevin, conversion, and trespass claims related to the misuse of various domain names and social media accounts.  Salonclick LLC d/b/a Min New York , 16 Civ. 2555 (KMW), 2017 WL 239379 (S.D.N.Y. Jan. 18, 2017).

The plaintiff in the case (“Plaintiff”) operated a business that manufactured and sold a variety of grooming products, including hair and skin care products. The Plaintiff used various domain names and tag lines in its business, including www.newyorkheart.org and a corresponding Facebook page, which spoke out against ivory poaching. The social media page was used, in part, to promote the company as a socially responsible business.

On Thursday, December 15, 2016, President Obama signed into law H.R. 5111, now officially titled the “Consumer Review Fairness Act of 2016.” The substantive provisions of the bill, which we discussed in a previous post, are virtually unchanged, but the law’s text provides further details regarding enforcement by the Federal Trade Commission and the states.

One noteworthy enforcement feature of the law is a cross-reference to the Federal Trade Commission Act. A violation of the Consumer Review Fairness Act of 2016 by offering a form contract containing a provision described as void in the law is also a violation of 15 U.S.C. 45(a)(2), which essentially prohibits unfair or deceptive acts or practices.

We have all seen the reviews of products or services that disgruntled consumers post on review sites such as Yelp. Lately, however, some consumers have faced lawsuits for violating “gag orders,” or non-disparagement clauses, found in agreements between businesses and consumers. These clauses restrict consumers’ ability to publish any negative criticism about their experiences and are often placed in the fine print of form contracts.  These agreements provide that, when the consumer posts a negative review, or even speaks negatively about the business’s products, services, or conduct, the business would have a cause of action against the consumer for breach of contract.

On August 10, 2016, the United States District Court for the Northern District of California, in Fields v. Twitter, Inc., dismissed the plaintiffs’ complaint against Twitter with leave to amend. The plaintiffs’ complaint arose out of the deaths of Lloyd Fields, Jr. and James Damon Creach, two United States government contractors who were working at a law enforcement training center in Amman, Jordan. Fields and Creach were murdered at the hands of Anwar Abu Zaid, a Jordanian police captain who was inspired to commit the act after watching the ISIS execution of the Jordanian pilot Maaz al-Kassasbeh via a video that ISIS distributed through a Twitter account.

The plaintiffs’ claim alleged that Twitter violated parts of the Anti-Terrorism Act by knowingly provided material support to ISIS by permitting ISIS to use its social network as a tool for spreading extremist propaganda. Twitter’s primary argument for the dismissal of the plaintiffs’ claim was the application of Section 230(c)(1) of the Communications Decency Act (the “CDA”), which states 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.” Twitter argued that since Twitter’s actions constituted publishing activity, the plaintiffs’ claim is barred by the CDA.

Social media has created several complications with regard to the U.S. discovery process in litigation. Among these complications are issues relating to (i) seeking out and turning over vast amounts of social media information, and (ii) preserving inherently fleeting social media information.