Quick Links from the Past Year, Part 6 (Defamation & Much More)

Defamation

* US Dominion Inc. v. Fox Network News LLC, No.: N21C-03-257 EMD (Del. Superior Ct. Dec. 16, 2021). Dominion’s defamation lawsuit against Fox News for its role in the “Big Lie” about the 2020 presidential election results survives Fox News’ motion to dismiss. There’s a certain perversion to the fact that the best chance to hold anyone legally accountable for the Big Lie comes from a private corporation protecting its reputation.

* US Dominion v. Powell, No. 1:21-cv-00040 (CJN) (D.D.C. Aug. 11, 2021): “a reasonable juror could conclude that the existence of a vast international conspiracy that is ignored by the government but proven by a spreadsheet on an internet blog is so inherently improbable that only a reckless man would believe it.”

* Blankenship v. Trump Jr., 2:19-cv-00549 (S.D.N.Y. Sept. 10, 2021): “the complaint plausibly alleges that Trump Jr.’s tweet labeling the plaintiff a felon was not a substantial truth or a minor inaccuracy.”

* Owens v. Lead Stories LLC, 2021 WL 3076686 (Del. Superior Ct. July 20, 2021). Lead Stories’ fact-checking of Owens’ Facebook posts isn’t defamatory.

Consumer Reviews

* Sciore v. Phung, 2022 WL 950261 (D.N.J. March 30, 2022). “In the context of Yelp, a reasonable reader would understand that the review at issue here was Defendant Ly’s subjective opinion as a disgruntled customer.” “the views of New York courts… appear particularly well-versed in actions for defamation based on negative restaurant reviews.” In particular, NY courts hold that “restaurant ratings and reviews almost invariably constitute expressions of opinion….Plaintiffs…fail to cite a single case that found a restaurant review libelous…a significant weight of authorities holding restaurant reviews as non-defamatory opinion.”

* CFPB: “covered persons and service providers are liable under the CFPA if they deceive consumers using restrictions on consumer reviews that are unenforceable under the Consumer Review Fairness Act, if they unfairly deprive consumers of information by using such restrictions, or if they deceive consumers who read reviews about the nature of those reviews.” More on the Consumer Review Fairness Act.

Plaintiff has sufficiently alleged that McNaughton committed intentional acts of leaving negative reviews on Plaintiff’s product pages. Plaintiff has also sufficiently alleged that McNaughton purchased Plaintiff’s products on three occasions, although it does not appear that McNaughton posted any negative reviews after the third purchase. What is missing, however, is the “something more,” which would satisfy the requirement that Defendants expressly aimed their conduct at Kansas….

the negative reviews were posted on Plaintiff’s product pages on Amazon.com. Plaintiffs do not assert that Amazon.com is geographically limited to Kansas or its residents. Rather, Amazon.com is a geographically-neutral forum that is accessible and presumably intended to reach, at a minimum, a nationwide audience. Turning to the negative reviews, the court finds that they are geographically neutral and not focused or directed at Kansas or its residents. Rather, McNaughton’s reviews and comments are focused entirely on the product at issue. McNaughton claimed that the product fell off his boat, it was heavy, he encouraged buyers not to purchase the product, and, ultimately, pointed potential buyers to his product by referencing it by name and praising his product. These comments were all geographically-neutral. None of the comments make any reference to Kansas or the fact that the manufacturer is located in Kansas. The comments also do not disparage Plaintiff directly but criticize the product that is for sale on Amazon.com

More Speech Stuff

* Hummasi v. Republic of Pakistan, 2022 WL 74218 (D. Ore. Jan. 7, 2022): “Twitter is a private corporation and therefore unable to violate an individual’s First Amendment right to free speech.”

* Butler v Google LLC, 2022 WL 2238936 (E.D. Wis. June 22, 2022). A termination/removal case is bounced from federal court for not meeting the $75,000 threshold.

* DJ Lincoln Enterprises, Inc., v. Google LLC, 2022 WL 203365 (11th Cir. Jan. 24, 2022). Court tosses lawsuit claiming that Google downgraded the business’ search results due to their conservative politics.

* U.S. v. JP Morgan Chase Bank NA, 2022 WL 573663 (S.D. Fla. Feb. 25, 2022): “the publicly available online blogs at issue in this case are within the broad definition of ‘news media’ as used in” the False Claims Act.

* WSJ: How the Trump Social-Media Ban Paid Off for Trump, Platforms

* Coinbase’s Philosophy on Account Removal and Content Moderation

* Wired: Are TikTok Algorithms Changing How People Talk About Suicide?

* People v. Devine, 2022 WL 896311 (Ill. App. Ct. March 28, 2022):

Given the statute’s plain language, as construed by our supreme court in Austin, defendant did not disseminate the images when he texted them to his own cell phone….

defendant’s act here of sending the images to himself—images of which he already had knowledge—did not foster general knowledge of the images or make them more widely known, because he did not send them to anyone else. Nor did he “ ‘BROADCAST’ ” or “ ‘PUBLICIZE’ ” them. The trial court stated that “defendant violated the statute by taking these pictures. He knew he was taking them from [J.S.’s] phone. He knew when he sent them to himself that he was going to have them.” The court’s focus seemed to be on defendant’s “taking” of the images. While we certainly do not condone defendant’s actions, his “taking” of the images is not an offense under the statute.

* State v. Katz, 2022 WL 152487 (Ind. Supreme Ct. Jan. 18, 2022): Indiana’s criminal non-consensual pornography dissemination statute survives strict scrutiny.

Commerce/E-Commerce

* Turo v. Superior Court ex rel Herrera, A160200 (Cal. App. Ct. June 28, 2022). Turo isn’t a rental car company because it does not own or control the vehicles in its inventory. As a result, the San Francisco Airport can’t require it to obtain a rental car company permit (and pay the associated fees) to operate on-premises.

* The Hustle: “How Ikea tricks you into buying more stuff”

* Reuters: Amazon copied products and rigged search results to promote its own brands, documents show

* The Hustle: Why most gas stations don’t make money from selling gas

Advertising

* PetaPixel: “Woman Sues McDonald’s After Burger Ad Photo Made Her Break Lent”

* Is it better to feature cats or dogs in advertising? It depends.

* MediaPost: “Opting Out Of Double Opt-In: Most Sectors Don’t Use It, Study Shows”

ADA

* Gomez v. Gates Estate Inc., 2022 WL 458465 (N.D. Cal. Feb. 15, 2022): “under Robles, a website without the “critical” nexus to a “physical” place of public accommodation is itself not a public accommodation within the meaning of the ADA; nor is a website a service of a public accommodation….because a website is neither a public accommodation, nor a service of a public accommodation under Robles, plaintiff must allege and prove that the inaccessibility of the website has deterred him from using the services of the physical location.”

* Business Insider: ‘They beefed up my blindness’: How a law firm sued 13 websites and falsely claimed its client couldn’t read

* Romero v. 88 Acres Foods, Inc., 2022 WL 158686 (S.D.N.Y. Jan. 18, 2022): “the term ‘public accommodation’ in Title III of the ADA encompasses private commercial websites that affect commerce with or without a nexus to a physical place.”

Trespass

* West v. State, 2021 WL 4468403 (Ind. Ct. App. Sept. 30, 2021): “the legislature intended a single computer to fall within the definition of ‘computer system'” [in Indiana’s computer crime law].

* New DOJ guidance on prosecuting security researchers using the CFAA:

The attorney for the government should decline prosecution if available evidence shows the defendant’s conduct consisted of, and the defendant intended, good-faith security research. For purposes of this policy, the attorney for the government should apply the definition of “good-faith security research” recommended by the Register of Copyrights in Section 1201 Rulemaking: Eighth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, at 258 (Oct. 2021). That is: “good faith security research” means accessing a computer solely for purposes of good-faith testing, investigation, and/or correction of a security flaw or vulnerability, where such activity is carried out in a manner designed to avoid any harm to individuals or the public, and where the information derived from the activity is used primarily to promote the security or safety of the class of devices, machines, or online services to which the accessed computer belongs, or those who use such devices, machines, or online services. Security research not conducted in good faith—for example, for the purpose of discovering security holes in devices, machines, or services in order to extort the owners of such devices, machines, or services—might be called “research,” but is not in good faith. CCIPS can consult with prosecutors about specific applications of this factor

Miscellaneous

* Vice: Scammer Service Will Ban Anyone From Instagram for $60

* Wired: China’s ‘People’s Courts’ Resolve Online Disputes at Tech Firms

* WSJ: Judge Rodney Gilstrap Sets an Unwanted Record: Most Cases With Financial Conflicts

* Cracked: ‘EVE Online’ Gamers Rise Up (To Unionize) Once Again

* Ex parte seizures of trade secrets are ripe for abuse. In Magnesium Machine, LLC v. Terves LLC, the judge granted the seizure, then learned the alleged “trade secret” was a TOTAL of 3 words long (one of which was “patent”). More on the stupid DTSA ex parte seizure provision.

* Washington Post: “Josh Hawley was Democrats’ go-to ally in the battle against Big Tech. Then came Jan. 6.”

* NYT: “41 million Americans are QAnon believers, survey finds.”

* Wired: The Great Tech Hub Exodus Didn’t Quite Happen

* NYT: Can Virtual Reality Help Ease Chronic Pain?