Nov.-Dec. 2011 Quick Links, Part 1

By Eric Goldman

47 USC 230

* Wang v. OCZ Technology Group, Inc., 2011 WL 4903190 (N.D. Cal. Oct. 14, 2011). In a false advertising suit, the plaintiff argued that the defendant quoted/linked to third party testimonials on the defendant’s website and those contributed to the misrepresentations. The defendant counterargued that the third party content was immunized by 47 USC 230 and therefore shouldn’t be attributed to it. The court rejects the defendant’s use of 47 USC 230 on a motion to strike material from the complaint, saying that it was too premature. Rebecca’s coverage.

* News report that, per 47 USC 230, Worcester Telegram & Gazette wasn’t liable for user-posted comments to one of its stories. Naturally, the plaintiff was an attorney. Prior blog coverage of lawsuits against newspapers for user-posted comments.

* Unsurprisingly, the plaintiffs appealed their 230 loss in Levitt v Yelp to the 9th Circuit. Prior blog post.

* Parisi v Sinclair, another 230 case, is being appealed to the DC Circuit. Prior blog post.

* An insurance company sued Google for the high search placement of and PissedConsumer reports about it. Hello 47 USC 230!

* Techdirt: Dentist Who ‘Invoiced’ Patient For Negative Reviews, Getting Slammed On Yelp. Prior blog post.

Content Regulation

* Yoder v. University of Louisville, 2011 WL 5434279 (W.D. Ky. Nov. 8, 2011). Yoder graduated from University of Louisville with her nursing degree, but her lawsuit isn’t moot due to her damages claim. Prior blog post.

* Roberts v. McAfee, Inc. (9th Cir. Nov. 7, 2011). Due to the single publication rule, failing to remove a press release on the website does not reset a defamation statute of limitations.

* Mattingly v. Milligan, 2011 WL 5184283 (E.D. Ark. Nov. 1, 2011):

Milligan won a hotly contested race for the position of Saline County Circuit Clerk. Following his election, Milligan sent a letter to four employees informing them that he would not retain them. That evening, Mattingly made two posts on Facebook in quick succession stating that bad things were all around and that her heart went out to those ladies who were told they were no longer needed. The posts could be viewed directly by at least 1,300 people, most of whom were residents of Saline County. As Milligan said in his letter of termination, Mattingly’s statements were “in a public domain.”…As evinced by their comments in response, some who read the posts understood Mattingly to be speaking about Milligan’s decision to terminate some employees in the Circuit Clerk’s office. These comments included criticisms of Milligan’s termination decisions. According to Milligan, six constituents were motivated by Mattingly’s posts to call him at home to complain about the terminations. Television news stations, newspapers, and an internet blogger reported on the Milligan’s decision to terminate the employees. Viewing the evidence in Mattingly’s favor, her Facebook posts touched on a matter of public concern.

* Obsidian Financial v. Cox, 2011 WL 5999334 (D. Or. Nov. 30, 2011). The court held that an Oregon blogger isn’t a journalist for shield law purposes. I think the case got so much attention in part because the judge said unnecessarily derogatory things about bloggers. However, Kash Hill reports that the defendant doesn’t appear to adhere to journalistic standards, either. Eric Robinson explains why the judge got to the right legal result. The EFF also contextualizes the ruling.

* Louisiana Crisis Assistance Center v. Marzano-Lesnevich (E.D. La. Nov. 23, 2011). Interesting anti-SLAPP decision.

* India asks Google and Facebook to prescreen UGC to prevent the publication of disparaging content.

* The Smoking Gun reports on a prosecution for posting revenge porn.

Search Engines

* Not surprisingly, myTriggers appealed its loss in its antitrust claims against Google. (Because the case has nothing to do with its legal merits, I’m sure myTriggers will keep appealing losses until they exhaust all appeals). Prior blog post.

* In an expected move, ShopCity filed an antitrust complaint against Google with the FTC.

* buySafe v. Google complaint: As part of a patent battle, buySafe asserts that Google promises better search placement for participants in its Trusted Stores program.

* More insight into the Google Search Quality Raters. Prior blog post.

* On a related note, Bing is going back to hand-picking some search results. Could you imagine how the Google Haters would respond if Google did the same thing?

* Also related? New Scientist: “Google and Microsoft have won a major victory in the fight against such content farms”

* Google is cracking down on parked domains in its search results. Compare Vulcan Golf v. Google.

* Google Knol is another casualty of Google’s project cleanup. Remember some Google Haters thought Google Knol would crush other encyclopedic-style projects due to Google favoritism of its own properties? (See, e.g., this article). What say you now?

* Google, Bing and Yahoo shut down fraudulent mortgage advertisers (WSJ, Search Engine Land).

* Search Engine Land: Google Instant Costs Google $65,000 In France. Given all of its prior losses, I had thought Google already was completely illegal in France.

* MediaPost: “consumers’ failure (or refusal) to differentiate between their search and browser bars shaped search behavior in 2011.” I wrote about this same issue…back in 2005!

* Clive Thompson: Why Kids Can’t Search.

Social Networking Sites

* Zoya Co. v. Julep Nail Parlor Co., 2011 WL 5975054 (N.D. Ohio Nov. 29, 2011). Website wasn’t passive for Zippo purposes because, among other things, “It includes links that allow customers to “Connect on Facebook” and “Connect on Twitter” and to subscribe to a monthly newsletter.” Compare DFSB Kollective Co. v. Tran.

* U.S. v. Cassidy, 2011 WL 6260872 (D. Md. Dec. 15, 2011). Reversing a harassment conviction based on talking a lot about a person on Twitter and in a blog.

* Dimas-Martinez v. State, 2011 Ark. 515 (Ark. Dec. 8, 2011). “Because of the very nature of Twitter as an on online social media site, Juror 2’s tweets about the trial were very much public discussions. Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion….Thus, this court has recognized the importance that jurors not be allowed to post musings, thoughts, or any other information about trials on any online forums. The possibility for prejudice is simply too high. Such a fact is underscored in this case, as Appellant points out, because one of the juror’s Twitter followers was a reporter. Thus, the media had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court. This is simply unacceptable, and the circuit court’s failure to acknowledge this juror’s inability to follow the court’s directions was an abuse of discretion.”

* U.S. v. Juror Number One, 2011 WL 6412039 (E.D. Pa. Dec. 21, 2011). A juror was fined $1,000 for criminal contempt for using email to discuss the case with other jurors during the trial after being dismissed from the jury.

* State v. Gordon, 2011 WL 5354265 (Ohio App. Ct. Nov. 7, 2011):

if Gordon’s use of the computer for personal purposes during work time constitutes theft in office, it would mean that every public official or government employee who sends a personal email, reads a text message, or checks Facebook during working hours would be guilty of committing a felony. We do not believe that is the intended purpose of R.C. 2921.41. Therefore, we find that there was insufficient evidence that Gordon’s use of the Village’s computers for personal purposes constituted Theft in Office pursuant to R.C. 2921.41

* Woodward v. State, 2011 WL 6278294 (Ala. Crim. App. Ct. Dec. 16, 2011). Inflammatory online comments about a defendant (who allegedly killed a police officer) don’t necessitate a change in venue: “the unsolicited, unreviewed, largely anonymous online comments did not rise to the level of saturated, prejudicial media coverage. Moreover, we believe that any readers of the comments would value those comments at their true worth and not as “news coverage” at all.”

* Facebook “accidentally” blocked as a spammy link. Prior blog post.

* Kash Hill: How Not To Use Facebook To Get Custody Of Your Kids. Horrifying story!

* Gizmodo: Facebook Is Making Us Miserable [and not for the reason you think!]

* The truth about students using Facebook and their grades.

* A quarter of the blogs listed on the inaugural ABA Journal Blawg 100 from 5 years ago are now gone. This blog didn’t make the first list, but next month we’ll be celebrating our SEVENTH anniversary!!!

* K-12 schools are adopting social media policies restricting teacher-student interaction on social networking sites.