1H 2019 Quick Links, Part 6 (Privacy, E-Commerce, & More)

Privacy

* Gullen v. Facebook, Inc., 2019 WL 2486566 (9th Cir. June 14, 2019):

No reasonable jury could conclude that Facebook subjected the photo uploaded to the Glenview Patch organizational Facebook page (which is the only photo at issue in this appeal) to facial recognition. The record contains declarations from Facebook employees as well as internal emails asserting that at the time the Glenview Patch photo was uploaded, facial recognition was turned off for organizational pages. The record also includes evidence specific to the Glenview Patch photo at issue, showing that Facebook did not subject it to facial recognition. Although Gullen points to emails and testimony indicating that all photos uploaded by individual Facebook users were subject to facial recognition, this evidence does not give rise to a reasonable inference that the particular Glenview Patch photo at issue, which was uploaded to an organizational Facebook page rather than a user page, was subject to facial recognition. Accordingly, the district court did not err in dismissing Gullen’s claim that Facebook violated BIPA.

* Malibu Media v. Park, 2019 WL 2960146 (D. N.J. July 9, 2019): “Plaintiff will have to show something more than merely tying Defendant to an IP address in order to sufficiently establish copyright infringement.”

* NBC News: Mark Zuckerberg leveraged Facebook user data to fight rivals and help friends, leaked documents show

* “the French Government has banned the publication of statistical information about judges’ decisions – with a five year prison sentence set as the maximum punishment for anyone who breaks the new law”

* Politico: How Silicon Valley gamed Europe’s privacy rules

* Wired: Politicians Don’t Trust Facebook—Unless They’re Campaigning

E-Commerce

* Keck v. Alibaba.com Hong Kong Ltd,  2019 WL 827636 (N.D. Cal. Feb. 21, 2019)

although a close call, the Defendants are more similarly situated to the swap meet operator and Napster than to Google. Crucially, Plaintiff alleges that Defendants’ websites are online marketplaces that constitute “a large ecosystem for online and mobile commerce” over which Defendants “exercise high levels of control.” Plaintiff further alleges that Defendants are “involved in the day-to-day operation, control, marketing, and design of [the marketplaces].” For example, Plaintiff specifically alleges that “the Alibaba Defendants provide marketing services to merchants who operate on Taobao, Alibaba.com and AliExpress, provide guidance for the layout of the merchants’ virtual stores, and facilitate transactions between merchants and buyers.” Thus, unlike in Amazon.com, the alleged direct infringement here takes place not “on the internet” writ large but instead on Defendants’ websites/ marketplaces. Moreover, Plaintiff alleges that Defendants have the right and ability to terminate the membership of merchants who repeatedly infringe, the right to remove, modify, or reject unlawful content on the websites/ marketplaces, and the discretionary right to suspend access to the websites/marketplaces. In other words, where Google had the right to terminate the AdSense partnership—which would not have stopped direct infringement by third parties—here the Defendants could have ended the alleged direct infringement on their own websites/marketplaces by terminating or suspending the merchants’ memberships….

Plaintiff has adequately alleged that Defendants failed to police their websites/marketplaces to the fullest extent, thus permitting detectable acts of infringement to occur. For example, Plaintiff alleges that Defendants have technology to proactively identify infringing material, and that Plaintiff has repeatedly notified Defendants of infringing material, but that Defendants nonetheless failed to remove the infringing material. As another example, Plaintiff alleges that so-called “repeat offenders”—merchants identified as having previously infringed—were permitted to continue to use Defendants’ websites/marketplaces despite Defendants’ knowledge of the merchants’ infringing activity. Plaintiff also alleges that Defendants have failed to maintain adequate records of infringing activity, which the Court may reasonably infer hinders Defendants’ ability to police their system

* Singh v. Google,  2018 WL 4677601 (N.D. Cal. Sept. 27, 2018):

Singh paid not for the AdWords service, but instead for a total number of clicks. To allege standing then, he must show that these clicks were not what he bargained for, namely clicks with a valid click rate of 90–95%. Thus, to show injury, he must demonstrate that the clicks he paid for had a valid click rate of less than 90–95%; otherwise, he got exactly what he paid for. This he does not do. And his conclusory allegations that he would not have advertised with Google had he known of the misrepresentations fail for this reason. He has alleged no support for this notion because he has not demonstrated that he paid anything beyond what he bargained to pay for.

* Nicosia v. Amazon.com, Inc., 2019 WL 2482674 (E.D.N.Y. June 14, 2019):

Courts will give effect to hybridwrap terms where the button required to perform the action manifesting assent (e.g., signing up for an account or executing a purchase) is located directly next to a hyperlink to the terms and a notice informing the user that, by clicking the button, the user is agreeing to those terms. The more the hybridwrap design diverges from this basic layout—such as by placing the notice further away from the action button, cluttering the screen with potentially distracting content, or omitting the language explicitly saying that by performing the action the user agrees to be bound by the terms—the less likely courts are to find that inquiry notice has been provided….

Annemarie testified that Dennis told her about the Mom program, that she gave Dennis the password to her Account, that Dennis told her he was signing her up for Mom, and that he did so with her “permission.” From this record, there can be no dispute that Annemarie authorized Dennis to sign her up for Mom, thus establishing a principal-agent relationship….

The second Mom sign-up screen contains a notice directly below the “Sign up for Amazon Mom” button, which reads, “By signing up, you acknowledge that you have read and agree to the Amazon Prime Terms and Conditions ….” The proximity of this notice to the “Sign up” button would make it very difficult for any user to miss, and its explicit use of contract-forming language, viz., “you … agree to the Amazon Prime Terms and Conditions,” leaves no doubt as to the legal consequences of proceeding with the transaction. Courts presented with similar hybridwrap interfaces have routinely found them sufficient…

If the validity of these contract terms waxed and waned depending on the identity of the human user behind the screen, it would impose a cloud of uncertainty over any contract formed over the internet. Any individual could avoid the terms of a website by simply logging on to a friend’s or relative’s account instead of creating their own. Common sense dictates that this could not possibly be the rule; and where common sense goes, the law must follow….

When one uses an account to transact online, an implicit representation is made that they are the person identified with the account, and thus are bound by the same terms and conditions previously agreed to by the account’s true owner. Platforms such as Amazon fulfill orders and provide other services in reliance on that implied representation. In this case, Plaintiff’s use of the Account was tantamount to a representation that he was Annemarie Nicosia (and therefore bound by the arbitration provision to which she had previously agreed)…

the rule that the “existence” of additional contract terms must be made “reasonably conspicuous” is, this Court submits, largely a superfluity. The cases specify that such terms must be reasonably conspicuous from the point of view of a “reasonably prudent” user. But is there any question that reasonably prudent internet users know that there are terms and conditions attached when they log onto Facebook, order merchandise on Amazon, or hail a ride on Uber? They know this, not because a loud, brightly-colored notice on the screen tells them so, but because it would be difficult to exist in our technological society without some generalized awareness of the fact….

rather than scrutinizing hybridwrap agreements for contract formation issues, courts should recognize that such agreements, like other adhesive contracts, represent in substance a “blanket assent” to any terms that are not objectively unreasonable

* ABA Journal: ADA questions remain over web accessibility cases and the lack of DOJ regulations

* FTC Announces First Actions Exclusively Enforcing the Consumer Review Fairness Act

* Reuters: New e-commerce rules jolt Amazon.com in India as products vanish

* The Hustle: 5-star phonies: Inside the fake Amazon review complex

* AdWeek: This Legally Binding Contract Lets People Sue Their Friends for Skipping Out on Drinks

Advertising

* The backstory of Burger King’s “Whopper Detour” campaign. I will definitely use this campaign as the basis of a future Advertising Law final exam

* Digiday: After GDPR, The New York Times cut off ad exchanges in Europe — and kept growing ad revenue

* Buzzfeed: Being An Instagram Influencer Is Hard Work, So This Guy Made A Bot To Do It For Him

* The Hustle: The women who win hundreds of sweepstakes per year

Regulation of Internet Giants

* AP: French Lawmakers Approve 3% Tax on Online Giants

* NY Times: Europe Is Reining In Tech Giants. But Some Say It’s Going Too Far.

* Google now pays more money in EU fines than it pays in taxes

* Cracked: 5 Dark (But Hilarious) Times Big Tech Companies Failed Hard

Miscellaneous

* People v. Ellis, 2019 WL 2618071 (N.Y. Ct. App. June 27, 2019): “Facebook is not an “internet identifier,” and…the existence of a Facebook account—as opposed to the internet identifiers a sex offender may use to access Facebook or interact with other users on Facebook—need not be disclosed to DCJS pursuant to Correction Law § 168–f (4).”

* The Atlantic: The 5 Years That Changed Dating

* I gave a presentation on Emojis and the Law for our new Internet Law Student Organization