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Cassandra Gizzo (US)

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In December 2021, our post “Increased likelihood of US social media regulation” discussed Facebook whistleblower Frances Haugen and her call to hold social media platforms accountable for the potentially dangerous content that appears on their sites.

In February 2022, Haugen once again flagged Facebook’s algorithms as potentially harmful, but this time Haugen was speaking outside of the United States, to the Australian Parliament’s Select Committee on Social Media and Online Safety (the “Committee”).

The Southern District of New York recently considered whether the unlicensed embedding of a video originally posted to a social media platform constituted copyright infringement. The case, Nicklen v. Sinclair Broadcast Group, Inc., et al., No. 20-10300 (S.D.N.Y. July 30, 2021), concerned the re-posting of a copyrighted video of a starving polar bear, taken by Paul Nicklen and posted to his social media accounts.  After Nicklen posted the video, it went viral. Sinclair Broadcasting wrote an article about the video, embedding in the article the Nicklen video. As a result of the embedding a reader of the article would view a still image from the Nicklen video regardless of whether the reader clicked to play the video. Nicklen claimed that the display of the still image from the Nicklen video infringed the copyright in the video. Sinclair Broadcasting filed a motion to dismiss claiming that the embedding was allowed under the so-called “server rule” or, in the alternative, constituted fair use. Judge Jed Rakoff denied the motion to dismiss rejecting the server rule and declining to consider the fair use defense at this early stage of the case.

As influencer marketing skyrockets in importance, social media companies have taken steps to make their platforms more attractive to this new wave of advertising. One way of making platforms attractive to both users and creators is to keep the platforms free of negativity. Negativity on social media has been a major reason for users to abandon sites and can make creators hesitant to use platforms where they do not feel supported. Additionally, 2020 saw many headlines regarding misinformation, hate-speech, and lack of moderation. As advertisers boycotted platforms and calls for action grew louder, social media platforms began to look for ways to promote themselves as socially conscious and safe. One of Pinterest’s answers to these calls is the “Creator Code.” Pinterest announced this code as an effort to help its platform be a positive and inspiring place.

On May 4, 2021, the Ninth Circuit reversed the district court’s judgment for Snap, Inc., owner of the mobile application Snapchat, in a case brought by the parents of two teenage boys tragically killed in a car accident. The parents claimed that Snap, Inc. caused the death of their sons through its negligent design of Snapchat. They claimed that that their sons were encouraged to drive at dangerously high speeds by a Snapchat filter which purports to show the user’s real-time speed (the “Speed Filter”). The boys in this case drove at speeds reaching 123 miles per hour and eventually fatally crashed into a tree going approximately 113 miles per hour. Shortly before the accident one of the boys opened Snapchat to use the Speed Filter, believing that posting a video of them traveling over 100 m.p.h could result in rewards within the app. See Lemmon v Snap, Inc. (9th Cir. May 4, 2021).  Snap claimed immunity under federal law.