Created by ChatGPT May 2026

I’m going to analogize bounce rates to the rate that consumers fail to overcome age authentication walls, which I’ll call the “balk rate.” (We could more granularly distinguish between voluntary refusals and technical inability, but the outcome is the same either way). There is no single standard or expected balk rate for age authentication walls. Instead, a service’s balk rate likely varies based on factors such as:

• the nature of the destination. How critical is it that the consumer overcome the wall? For example, there will be a lower balk rate for access to an essential government service than a site that consumers consider non-essential. A related issue is how long the consumer anticipates the relationship will run. Consumers who expect a one-off interaction are more likely to balk than a consumer planning to make a long-term commitment.
• the availability of competitive alternatives that have less onerous age authentication procedures. For example, pornography consumers can easily find online alternatives that don’t require age authentication (at least for now), so those consumers are more likely to balk when they encounter an age authentication wall.
• the nature of the authentication process.
  • how many steps are involved in the process? Each additional step in the authentication process will increase the overall balk rate.
  • relatedly, how much time does the process take? Consumers are impatient.
  • what disclosures must the consumer make to overcome the wall? The more sensitive the disclosure, the higher the balk rate. Most age authentication processes that achieve decent accuracy levels necessarily rely on the disclosure of sensitive consumer information (such as government IDs or face scans) that will produce a lot of balks, but there still may be balk rate differences between them.
  • how much trust do consumers have in the authenticator? Trust is also a proxy for consumer concerns about privacy and security.

There are likely other considerations I didn’t capture here. I welcome your suggestions.

In this post, I’ll highlight three data points about balk rates. (If you know of other published data on this topic, please email me).

Pornhub’s Experiences

Pornhub has shared some data about its balk rates. In Louisiana, Pornhub says its traffic dropped 80% in Louisiana when it implemented an age authentication wall. Elsewhere, Porhub has said that “over 99% of users subjected to a verification requirement did not verify their age.”

Going back through the factors I identify above, you can see why these numbers might be so high. Pornography services have competitive alternatives that aren’t age-authenticated, and there are high privacy and security risks to pornography consumers.

The high balk rates also explain why Pornhub opted-out of states that have imposed age authentication mandates. If it’s going to lose 99% of those consumers due to the mandate, it’s already out of the market either way, so officially withdrawing from the market has no real opportunity cost.

An EU Study

In 2022, the EU did a comprehensive study of age authentication balk rates in the “Pilot Execution Report – first large scale euCONSENT pilot“. The study assigned EU consumers three authentication “missions” to complete and then studied consumers’ mission completion rates.

The missions differed depending on the age and status of the user, so it’s pretty hard to draw any definitive conclusions. Most importantly, the study doesn’t reveal the completion rate of the first mission, which was to do the initial age authentication. To me, this seemed like the most essential datapoint, but the report didn’t mention it. The second mission was to navigate to another site without reauthenticating. That had about an 80% completion rate. The third mission was to jump through a more rigorous authentication hoop. Only about 63% of the group who completed the first mission were able to complete that third mission.

There was a follow-on study (“Pilot Execution Report – third euCONSENT“) with more missions. Collectively, some of the data points that stood out to me:

• 12% of adults and 21% of parents failed to complete the authentication and reauthentication process; and 22% of parents failed to complete the parental authorization process.
• 85% of consumers said they wouldn’t wait more than 5 minutes to do an authentication process, even if that was a one-time process for a permanent web-wide authentication.
• If given the choice, 68% of consumers preferred face scans, 15% preferred document scanning, and only 3% preferred credit card authentication (which, as I mention in my Segregate-and-Suppress paper, isn’t considered to be a credible authentication nethod).
• 21% of the study participants reported a technical problem trying to do the authentication.
• With respect to trying to buy alcohol online, 22% said they would do something other than complete the online age authentication.

I’ve been through these studies a few times, and each time I was confused by the methodology and results. The reports left open obvious questions, may be specific to the EU’s consent process, and may be outdated based on developments in the past 4 years. And yet, these reports make it clear that there will be tens of millions of EU consumers who will fail to navigate (or would prefer not to navigate) the authentication systems the EU is putting in place.

The Carnegie Mellon Study

A Carnegie Mellon research team (plus one Princeton researcher) posted a preview of an experiment on age authentication balk rates. The study is called “Measuring User Responses to Online Age Verification Mechanisms Through A Deceptive Experiment.” The researchers solicited participants to watch R-rated video clips. However, before the survey takers could watch the clips, the researchers said they had to navigate an age authentication barrier to see how they reacted. The survey indicates the following balk rates:

• checkbox self-attestation: 1% balk rate (i.e., 99% completion rate). This option is meaningless because I don’t believe any regulators consider self-attestation a permissible method of age authentication.
• “Email-based estimation”: 14% balk rate.
• “AI facial estimation”: 49% balk rate.
• government-ID methods: 73-77% balk rate (the variation depended on assurances about privacy and security).

The researchers conclude: “technically robust verification methods may be ineffective in practice if users systematically decline to comply.”

Two observations of mine:

• Consistent with the EU report showing consumers prefer face scans over document ID reviews, the balk rate was noticeably lower for face scans than government-issued IDs (though both balk rates were high). As face scans roll out across the Internet, I wonder if consumers are becoming desensitized to doing face scans and increasingly view them as an inevitable and standard price of admission?
• The preview doesn’t mention what motivations participants had to complete the process. For example, were they promised any compensation? If the only motivation for navigating the authentication wall was altruism (i.e., to support the research), then we should expect much higher balk rates than we would find in the field, when users are trying to achieve their self-directed objectives.

Implications

The Carnegie Mellon paper references the constitutional principle of tailoring, i.e., how likely is the law to achieve its desired outcome? Higher balk rates are a sign that an age authentication mandate isn’t appropriately tailored because it’s suppressing constitutionally protected conversations. However, there is no numerical cap on balk rates before an age authentication mandate becomes constitutionally impermissible. Instead, in the Free Speech Coalition v. Paxton decision, the majority opinion said “adults have no First Amendment right to avoid age verification.” That implies that the court may not care about balk rates at all.

Age authentication mandates always shrink the Internet, and balk rates are one way of measuring the shrinkage. Every time an adult fails to navigate an age authentication process (whether by choice or due to technical challenges), that’s another lost customer for the authenticating service. If the Carnegie Mellon study accurately predicts field behavior, face scans or document reviews will cost the authenticating services half of their customers or more. Such high balk rates would collapse the Internet ecosystem, because there won’t be enough authenticating customers for services to operate profitably. Even a 10-20% balk rate will have major consequences for many services that are already operating on razor-thin margins, such as content publishers who have already seen their ad revenues shrink over time. These Internet shrinkages have significantly economic and social consequences for all of us, yet regulators routinely ignore these issues completely when clamoring for more age authentication manates.

To reduce balk rates, governments around the globe are trying to build an infrastructure to reduce the friction of age authentication. Less friction addresses one problem (the balk rate) and creates a host of other problems.

The EU plans to rely on widespread adoption of digital IDs combined with an API wrapper that exposes only age authentication information to services around the Internet. Digital IDs raise a host of privacy and security concerns. They are also the foundational infrastructure for comprehensive government monitoring and control of constituent movements online. I’m also unclear how the EU plans to address the fact that tens of millions of EU residents won’t have digital IDs for the foreseeable future.

Alternatively, some governments are trying to force one-time age authentications when a user acquires a device or first logs into an app store. By moving the age authentication process forward to a central point (the device or the app store), the user avoids doing repetitive authentications downstream. However, that assumes the user can or wants to complete the authentication in the first place; anyone blocked at the beginning is stuck. The high-value authentication data also will act as attractive centralized honeypots for malefactors. Also, this approach normalizes age authentication and will make it seem routine for interactions that today don’t require age authentication. It will likely shift the default about when we need to age-authenticate. Today, we can enter websites or use apps without presenting credentials, just as we do in most physical spaces; in the future, that presumption will be reversed. Finally, whoever is doing the centralized authentication won’t do it for free. A small number of entities are poised to extract monopoly rents by taking a cut of this government mandated process.

* * *

Blog Posts on Segregate-and-Suppress Obligations

• Court Enjoins Another Arkansas Segregate-and-Suppress Law–NetChoice v. Griffin
• Too Many Courts Are Letting States Take Wrecking Balls to the Internet (Roundup)
• Texas Judge Enjoins App Store Authentication Law–CCIA and SEAT v. Paxton
• Courts Enjoin Internet Censorship Laws in Louisana and Arkansas
• Challenge to Maryland’s “Kid Code” Survives Motion to Dismiss–NetChoice v. Brown
• My Testimony Against Mandatory Online Age Authentication
• Read the Published Version of My Paper Against Mandatory Online Age Authentication
• Prof. Goldman’s Statement on the Supreme Court’s Demolition of the Internet in Free Speech Coalition v. Paxton
• Court Permanently Enjoins Ohio’s Segregate-and-Suppress/Parental Consent Law–NetChoice v. Yost
• Arkansas’ Social Media Safety Act Permanently Enjoined—NetChoice v. Griffin
• Why I Emphatically Oppose Online Age Verification Mandates
• California’s Age-Appropriate Design Code (AADC) Is Completely Unconstitutional (Multiple Ways)–NetChoice v. Bonta
• Another Conflict Between Privacy Laws and Age Authentication–Murphy v. Confirm ID
• Recapping Three Social Media Addiction Opinions from Fall (Catch-Up Post)
• District Court Blocks More of Texas’ Segregate-and-Suppress Law (HB 18)–SEAT v. Paxton
• Comments on the Free Speech Coalition v. Paxton SCOTUS Oral Arguments on Mandatory Online Age “Verification”
• California’s “Protecting Our Kids from Social Media Addiction Act” Is Partially Unconstitutional…But Other Parts Are Green-Lighted–NetChoice v. Bonta
• Section 230 Defeats Underage User’s Lawsuit Against Grindr–Doll v. Pelphrey
• Five Decisions Illustrate How Section 230 Is Fading Fast
• Internet Law Professors Submit a SCOTUS Amicus Brief on Online Age Authentication–Free Speech Coalition v. Paxton
• Court Enjoins the Utah “Minor Protection in Social Media Act”–NetChoice v. Reyes
• Another Texas Online Censorship Law Partially Enjoined–CCIA v. Paxton
• When It Comes to Section 230, the Ninth Circuit is a Chaos Agent–Estate of Bride v. YOLO
• Court Dismisses School Districts’ Lawsuits Over Social Media “Addiction”–In re Social Media Cases
• Ninth Circuit Strikes Down Key Part of the CA Age-Appropriate Design Code (the Rest is TBD)–NetChoice v. Bonta
• Mississippi’s Age-Authentication Law Declared Unconstitutional–NetChoice v. Fitch
• Indiana’s Anti-Online Porn Law “Is Not Close” to Constitutional–Free Speech Coalition v. Rokita
• Fifth Circuit Once Again Disregards Supreme Court Precedent and Mangles Section 230–Free Speech Coalition v. Paxton
• Snapchat Isn’t Liable for Offline Sexual Abuse–VV v. Meta
• 2023 Quick Links: Censorship
• Court Enjoins Ohio’s Law Requiring Parental Approval for Children’s Social Media Accounts–NetChoice v. Yost
• Many Fifth Circuit Judges Hope to Eviscerate Section 230–Doe v. Snap
• Louisiana’s Age Authentication Mandate Avoids Constitutional Scrutiny Using a Legislative Drafting Trick–Free Speech Coalition v. LeBlanc
• Section 230 Once Again Applies to Claims Over Offline Sexual Abuse–Doe v. Grindr
• Comments on the Ruling Declaring California’s Age-Appropriate Design Code (AADC) Unconstitutional–NetChoice v. Bonta
• Two Separate Courts Reiterate That Online Age Authentication Mandates Are Unconstitutional
• Minnesota’s Attempt to Copy California’s Constitutionally Defective Age Appropriate Design Code is an Utter Fail (Guest Blog Post)
• Do Mandatory Age Verification Laws Conflict with Biometric Privacy Laws?–Kuklinski v. Binance
• Why I Think California’s Age-Appropriate Design Code (AADC) Is Unconstitutional
• An Interview Regarding AB 2273/the California Age-Appropriate Design Code (AADC)
• Op-Ed: The Plan to Blow Up the Internet, Ostensibly to Protect Kids Online (Regarding AB 2273)
• A Short Explainer of Why California’s Social Media Addiction Bill (AB 2408) Is Terrible
• A Short Explainer of How California’s Age-Appropriate Design Code Bill (AB2273) Would Break the Internet
• Is the California Legislature Addicted to Performative Election-Year Stunts That Threaten the Internet? (Comments on AB2408)
• Omegle Denied Section 230 Dismissal–AM v. Omegle
• Snapchat Isn’t Liable for a Teacher’s Sexual Predation–Doe v. Snap
• Will California Eliminate Anonymous Web Browsing? (Comments on CA AB 2273, The Age-Appropriate Design Code Act)
• Minnesota Wants to Ban Under-18s From User-Generated Content Services
• California’s Latest Effort To Keep Some Ads From Reaching Kids Is Misguided And Unconstitutional (Forbes Cross-Post)
• Backpage Gets Important 47 USC 230 Win Against Washington Law Trying to Combat Online Prostitution Ads (Forbes Cross-Post & More)
• Backpage Gets TRO Against Washington Law Attempting to Bypass Section 230–Backpage v. McKenna
• MySpace Wins Another 47 USC 230 Case Over Sexual Assaults of Users–Doe II v. MySpace
• MySpace Gets 230 Win in Fifth Circuit–Doe v. MySpace
• Website Isn’t Liable When Users Lie About Their Ages–Doe v. SexSearch

The post How Often Do Consumers Balk at Doing Online Age Authentication? appeared first on Technology & Marketing Law Blog.

This case involves a terrible tragedy: genocidal violent attacks on the Rohingya minority in Myanmar at the beginning of the 2010s. The plaintiffs sued Facebook for its role in the attacks, such as its alleged algorithmic turbocharging of rage content posted by its users.

Despite the tragedy, the facts sound like a straightforward Section 230 situation. However, the lower court didn’t rely on Section 230 to dismiss the complaint. Indeed, Section 230 isn’t mentioned a single time in the district court dismissal, part of why I never blogged that opinion. Instead, the district court dismissed the case solely on statute of limitations grounds (“the Court determines plaintiffs’ claims, having been brought in 2021, were filed outside the applicable two-year statute of limitations”) without mentioning Section 230 even once. The panel acknowledges that this case did not present itself to the Ninth Circuit as a Section 230 case: “Because the district court dismissed Plaintiffs’ claims as untimely, it did not reach the Section 230 issue.”

Given that Section 230 is nowhere to be found in the lower court opinion, the Ninth Circuit could have affirmed the lower court on statute of limitations grounds. Or, if it disagreed with that ruling, it could have reversed the lower court’s ruling and remanded the case to the lower court to evaluate other aspects of the case, such as Section 230.

This panel did neither. The Ninth Circuit panel’s opinion doesn’t engage with the statute of limitations issue at all, i.e., it doesn’t indicate if the lower court was right or wrong on that topic. Instead, the Ninth Circuit panel requested the parties file supplemental briefings on Section 230 grounds (remember, the plaintiffs couldn’t initially appeal on Section 230 grounds because the lower court didn’t mention Section 230 at all) and then conducted its own de novo application of Section 230 without any guidance at all from the lower court.

In other words, the Ninth Circuit panel didn’t have to discuss Section 230. IT WENT OUT OF ITS WAY TO DO SO. The panel then raised Section 230 on its own initiative and then criticized Section 230’s application as a problem–even though Section 230 didn’t dictate the outcome at the lower court. The panel’s issue-seeking is a blazing red flag of judicial activism.

(Also, the panel opinion isn’t very transparent about why it chose to discuss only Section 230 and entirely ignore the lower court’s statute of limitations ruling. It treats Section 230 as a critical-path item without disclosing that the panel went off-road to address it. The panel disingenuously says “Meta renews its Section 230 arguments on appeal,” which is because the Ninth Circuit requested supplemental briefings on 230).

* * *

The plaintiffs argued that Myanmar law, which doesn’t contain Section 230 immunity, should govern instead of US law. The panel rejects this argument:

The United States’ interest in applying Section 230 is clear. Imposing liability on Meta for its actions as a publisher would frustrate Section 230’s purpose of “promot[ing] the continued development of the Internet and other interactive computer services.”…

Myanmar’s interest in protecting its citizens from harmful attacks and misinformation on Facebook, while real, is insufficiently incorporated into the positive law of the country. Myanmar’s interest therefore does not predominate. For these reasons, even if we could or should consider Myanmar law, Section 230 applies

I am not a conflicts-of-laws expert, so I don’t know if the court’s methodology or conclusion is unusual. The fact that Section 230 protects a U.S. company being sued in the U.S. seems intuitive to me, even if the plaintiffs are foreigners and the offline harms took place in a foreign country. For more on Section 230’s extraterritorial application, see Prof. Chander’s paper.

In his self-concurrence (discussed further below), Judge Nelson says this part of the panel opinion (which he wrote) wasn’t necessary because Section 230 is a federal law, so it preempts any of California’s choice-of-law provisions. He has nine citations to the Federalist papers in this section, so he’s still living in the eighties (the 1780s).

* * *

The panel says that Section 230 applies to the plaintiffs’ claims, despite the plaintiffs’ invocation of the standard workaround arguments.

The panel says:

Plaintiffs characterize Meta’s duty as one of product design—that Meta should not have built Facebook in a way that boosted incitements to violence. Still, the alleged defects relate to Facebook’s core design as a publishing platform, particularly how Facebook promoted or downplayed third-party posts using algorithms. Under our case law, matching users with content is publishing conduct, even when the user has not requested the content. [cites to Doe v. Grindr, Dyroff, Carafano, Barnes]

This is a powerful statement: “matching users with content is publishing conduct.” This reinforces that Section 230 should not just apply to the substance of third-party content, but it should also apply to decisions about how to present that third-party content. It reminds us that “product design” choices by speech venues are synonymous with editorial decision-making, so “product design” claims against speech venues should implicate Section 230.

The plaintiffs tried several arguments to advance its design defects theories:

• “Meta did not do enough to screen and moderate content” => “Asking a platform
  to monitor and review third-party content goes to Section 230’s core.”
• Trying to fit into Doe v. Twitter’s “reporting infrastructure” exception, the plaintiffs highlighted that Facebook lacked a reporting function in the native language. =>  “Plaintiffs mentioned the alleged English-language reporting issues only once in their opening brief. Plaintiffs did not discuss the effect of Section 230 on their reporting infrastructure theory in their reply brief. Plaintiffs have forfeited any argument about their reporting infrastructure theory.”
• “Facebook’s promotion of posts is inextricably (even circularly) linked to the “social rewards” reflecting third-party engagement.” => “The encouragement provided by social rewards ultimately depends on third-party engagement and content. This dynamic is true even though Plaintiffs try to frame the issue as a matter of product design….Calling Facebook a “product” rather than a publication platform only obscures the point that Meta “published user-generated speech that was harmful” to Plaintiffs.”

A reminder: just because a service adopts a term with potential legal significance like “product” doesn’t mean the service has made an admission against its interest. See the Prager U v. YouTube case and its discussion of “public forum.”

The plaintiffs also tried the Anderson v. TikTok argument, i.e., the algorithm is Facebook’s first-party content. The court responds: “Facebook’s promotion of engagement-driven content through the 2009 recommendation algorithm must be characterized as recommending and matching conduct. We have already decided that such conduct is the work of publishers, rather than a platform’s own content or messaging.”

The panel also discusses the Roommates.com exceptions, saying:

The system of social rewards that Plaintiffs complain of is, “on [its] face, neutral.” There is no plausible allegation in the complaint that the Facebook algorithm specifically treated anti-Rohingya content differently than any other third-party content. What’s more, nothing in the complaint plausibly alleges that Meta singled out or selected violence-prone users to post violent content….

Even if the Facebook algorithm and system of third-party feedback and “social rewards” encouraged the posting of content, nothing about the platform’s design contributed to what made those posts illegal or actionable….

the algorithm does not change our calculus or count as a material contribution.

The plaintiffs also tried the decades-old argument that 230 only protects publishers, not distributors. Citing Calise, the panel replies:

This is a distinction without a difference. We have expanded Section 230 and “discarded the longstanding distinction between ‘publisher’ liability and ‘distributor’ liability” that existed at common law.

The panel concludes:

Meta created Facebook, an interactive computer service. That service recommended content to users to maximize engagement. Under our precedent, that is publishing conduct that does not materially contribute to or develop the underlying content.

Plaintiffs believe that Facebook’s design, coupled with the darker elements of human nature, caused real-world harm. But Section 230, as we have interpreted it, bars their claims, and we cannot hold Meta “responsible for the unfortunate realities of human nature.”

* * *

If the panel stopped there, the panel opinion would be what I consider to be a fairly straight-down-the-middle Section 230 opinion. The plaintiffs generally tried routine “product design” and “but the algorithms” arguments, which the Ninth Circuit has repeatedly rejected and rejects again. The case involves tragic facts, but the requested redress is outside the law’s boundaries. The ruling also casts significant doubt on the social media addiction rulings regarding Section 230 in several ways.

However…at the end of the panel opinion, the judges don’t stop talking. All three judges express support for en banc review of Section 230.

Judges Berzon and Fletcher’s Concurrence

This concurrence starts by saying that this ruling is a textbook Section 230 case:

We are bound by Ninth Circuit precedent addressing the scope of section 230 immunity, which requires the conclusion we reach here: The plaintiffs claims’ challenging Facebook’s algorithmic design seek to treat Meta “as the publisher or speaker of any information provided by another information content provider,” so section 230 provides Meta with immunity

However, these judges think there should be an algorithmic exception to Section 230:

I nevertheless continue to think that this Court’s precedent has unduly expanded the scope of section 230 immunity. For the reasons persuasively outlined by Judge Katzmann in his partial dissent in Force v. Facebook, 934 F.3d 53 (2d Cir. 2019), cert. denied, 140 S. Ct. 2761 (2020), and as I stated in my concurrence in Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021), vacated, 598 U.S. 617 (2023), “if not bound by Circuit precedent I would hold that the term ‘publisher’ under section 230 reaches only traditional activities of publication and distribution—such as deciding whether to publish, withdraw, or alter content—and does not include activities that promote or recommend content or connect content users to each other

The logic flaw ought to be obvious: Judge Berzon believes the “traditional activities of publication and distribution…does not include activities that promote or recommend content or connect content users to each other.” But promoting and recommending content is one of the most central publication functions. Every publication decision is an act of prioritization–it elevates some content for greater attention over all other content that isn’t published. Further, book publishers don’t just publish books and then store them in a warehouse; they go out and promote the availability of the books so people will actually buy and read them.

Further, where Judge Berzon denigrates “connecting content users to each other,” she is using an unilluminating euphemism. Users aren’t just being “connected” to each other for shits and giggles. The connections facilitate the users talking to each other, i.e., AUTHORING AND DISSEMINATING CONTENT to each other. The speech venue’s role in making those connections–so people can communicate their content to each other–is a quintessential act of publishing content. Judge Berzon wants to kick out various activities from Section 230 by using an unnecessarily constricted and misguided definition of what she thinks constitutes “traditional activities of publication and distribution.”

This concurrence keeps digging. It embraces the logic defect that plagued the Anderson v. TikTok court: that Moody v. NetChoice (an opinion that didn’t discuss Section 230 at all) held that “an online platform’s decisions about how to order, organize, or display third-party content are the platform’s ‘expressive choices'” which, in turn, curtails Section 230. Thus:

Moody and Anderson persuasively suggest that algorithmic recommendations are an internet service provider’s first-party speech for purposes of assessing section 230 immunity

This concurrence says Section 230 doesn’t depend on how the algorithm is constructed:

generic, content-based algorithms do not bear any more resemblance to traditional publication than their “advanced”—individualized—counterparts….Whether generated by an “advanced,” “personalized recommendation” algorithm, an “engagement-maximizing” algorithm, or by hand, I understand suggestions and recommendations to be distinct messages presented by social media companies. Those messages cannot be attributed to any third parties and so are not protected by section 230.

I lament again how often people undervalue the curation function of publishers. The decision to publish or reject any individual item of content is obviously a curation function. It is similarly a curation decision to highlight some content items over others. Any efforts to distinguish between the two would inevitably shrink Section 230 down to, at most, an immunity for content hosting, i.e., Dropbox or Google Drive file hosting services. That was never Section 230’s intent, even in the simpler days of 1996. Moody v. NetChoice, which didn’t mention Section 230, did absolutely nothing to change the contours of Section 230.

These concurring judges summarize their position:

Whether soliciting scam advertisements or matching adults with minors on dating apps, this Court’s broad reading of section 230 of the Communications Decency Act permits internet service providers affirmatively to behave indecently, potentially—as alleged in Dryoff [sic] and Grindr—causing serious harm to vulnerable people. In my view, the conduct challenged in these cases stretches far beyond the traditional activities of publication contemplated by section 230

What does it mean for a publisher to “behave indecently”? I have no idea.

These judges conclude with a call for en banc hearing and maybe Supreme Court review:

there is now both an intercircuit conflict and strong tension with a recent Supreme Court case. Moody v. NetChoice and Anderson only underscore the necessity for en banc review of this Court’s precedent addressing section 230. I again—even more emphatically on this go round—urge this Court to reconsider en banc our precedent extending section 230 immunity to recommendation of content and connections to users

I still cannot wrap my head around how anyone agrees with the Anderson v. TikTok decision.

Judge Nelson’s Self-Concurrence

Judge Nelson writes yet another self-concurrence to a panel opinion he also wrote. This is not his first self-concurrence; and self-concurrences have become a bit of a status symbol/fetish among TAFS judges. I assume they think it signals that they are by-the-books adhering to the precedent in the main opinion but would have reached a different conclusion if they weren’t so restrained.

With respect to Section 230, he says “we have overread Section 230, straying from the original public meaning of the statutory text and creating an all-purpose liability shield for internet platforms.” (As I have repeatedly pointed out, Section 230 isn’t an “all-purpose liability shield”). For example:

how does a product liability claim hinge on treating the provider of an interactive computer service as the publisher of third-party content?…Even if a product liability claim might look like publishing third-party content from afar, the duty underlying such a claim is not “identical to publishing or speaking.”

I have no idea what Judge Nelson is talking about. Take, for example, publishing a field guide to mushrooms that misidentifies a poisonous mushroom as safe to eat. If the victim brings a products liability claim over the book’s mischaracterization, how is that claim not “identical” to imposing liability for publishing? What tendentious distinctions about the mechanics of publishing is Judge Nelson trying to make?

Judge Nelson also speculates that the products liability claims “likely fail” under California law because he is “skeptical” that Facebook is a “product.” First, it’s improper to speak specifically about this claim when it could possibly come back to the Ninth Circuit in this very case depending on how the case proceeds. Even worse, the claim wasn’t properly briefed for the Ninth Circuit by the parties.

Second, if he’s right that the claim should fail on its lack of merits, what exactly is the point of trying to fight to preserve the claim? The Ninth Circuit has already done a dozen of these “it’s not 230, but you still lose” switcheroos to plaintiffs, and yet it has not learned anything from that ever-growing process of wasted motion and futility. Judge Neslon says “we need not stretch Section 230 to reject” the products liability claims. In my view, his argument would instead nonsensically stretch Section 230 to preserve what he believes are futile products liability claims.

Judge Nelson also buys into the “but the algorithms” view: “Section 230’s protection of third-party publishing conduct should reach only “traditional” activities of publication and distribution—not every modern activity that bears some remote resemblance to it.” Except that because judges routinely undercount the curatorial functions of publishers, they are actually misperceiving the “traditional” activities of publishers.

To emphasize that Judge Nelson doesn’t understand what publishing means, he says:

Modern recommendation algorithms are opaque, esoteric, and—particularly when artificial intelligence enters the fray—incomprehensible, sometimes even to their own designers. Much of the matchmaking and network creation that modern algorithms engage in does not fit within any fair definition of publishing conduct

If an entity is gathering, organizing, and disseminating content, it is a publisher. Judge Nelson seems to think they are “qualifying” and “disqualifying” ways of organizing and disseminating content. It’s true that we’re now longer in the world of typesetting and ink-driven printing that prevailed during the writing of our Constitution. But the curatorial functions are indistinguishable. Surely Colonial printers would have enthusiastically used automated options if they had been available.

Judge Nelson also apparently agrees with the Anderson v. TikTok approach: “even if algorithms are publishing conduct, the Supreme Court has suggested that they are the publishing of the platforms’ own content…If an algorithm is a distinctive expressive product, then it makes sense that it is a platform’s own content, rather than the content of third parties…. it is unclear why algorithms should be immunized under Section 230 after Moody.” This is so confused. Curating third-party content is called “publishing,” and the curatorial choices don’t change the status of the third-party content as third-party content.

* * *

By not addressing the statute of limitations question at all, the panel leaves open an obvious problem. Assume the Ninth Circuit wipes Section 230 off the books entirely, for this case and all others. The case still lost on statute of limitations grounds, and the Ninth Circuit has never said that was incorrect. As a result, resolving Section 230’s applicability does nothing to resolve this case. The case remains dismissed on statute of limitations grounds until a court of greater authority says otherwise. That makes the panel’s engagement with Section 230 feel gratuitous. The concurrences are like advisory opinions to address some counterfactual hypothetical.

Thus, it was conspicuous how little Judge Berzon and Judge Nelson’s concurrences engaged with the facts of the Rohingya claims–or explain why this case doesn’t actually illustrate the problems they want to discuss. (Judge Nelson addresses this some–he thinks old Facebook algorithms aren’t the right test case for this pet theories). In most respects, the concerns in their concurrences are divorced completely from the case at hand. The case instead became a vehicle for venting their nonbinding views.

As you can imagine, the plaintiffs have already requested en banc review of this case. If the Ninth Circuit takes the case, it will set up a potentially existential battle over what it means to “publish” content, the role and value of publisher curation, and how a Supreme Court pro-free speech opinion that had nothing to do with Section 230 might nevertheless curtail online speech. Expect some turbulent jurisprudential times ahead.

Case Citation: Doe 1 v. Meta Platforms Inc., 2026 WL 1144707 (9th Cir. April 28, 2026)

The post Ninth Circuit Panel Goes Out of Its Way to Question Section 230–Doe v. Meta appeared first on Technology & Marketing Law Blog.

In a prior ruling, the court upheld Twitter’s TOS and sent the case from D. Conn. to N.D. Tex. In my prior post, I wrote: “The relocation of the case from Connecticut to N.D. Tex. only delays the inevitable. This case is doomed due to Section 230, among other reasons.” That denouement has now arrived. The court says simply: “§ 230 clearly bars Taddeo-Waite’s claims against X.”

Decision Not to Remove Third-Party Post. “Taddeo-Waite’s claims concerning X’s decision not to remove the anonymous user’s post neatly fall into the scope of § 230 immunity….X’s decision not to remove the anonymous user’s post treat X as the publisher of another’s information.”

Algorithmic Amplification of Third-Party Post (“But the Algorithms”). “§ 230 immunizes X from suit over its decision not to delete another’s post, and whether Taddeo-Waite notified X of the post’s harmful nature is immaterial to X’s § 230 immunity for that conduct.”

Taddeo-Waite highlighted the algorithmic amplification of the third-party post. No matter, same outcome:

Taddeo-Waite contends that X’s application of its algorithm to the anonymous user’s post constitutes the kind of material contribution to that post that can render X a developer and thus an information content provider…these arguments miss that no matter what amplification Taddeo-Waite alleges, this alleged activity has no bearing on the content of the anonymous user’s post…

Taddeo-Waite does not state facts showing how X’s alleged algorithmic amplification of the anonymous user’s post encouraged or contributed to the post’s message. Instead, he only alleges that X broadcast that message once the user had already composed and uploaded it….courts have consistently found that § 230 immunizes web-based defendants from claims that allege harms caused by content recommendation algorithms…

Taddeo-Waite’s claims that derive from X’s algorithmic amplification of a post merely accuse X of exercising the same editorial judgment a publication wields when it decides which writers’ articles to print on the front page and which to print on the back…

X’s algorithm’s role in establishing that reach does not, without more, state a claim against X that can overcome § 230 immunity

As you can see, this judge completely rejects the algorithmic exceptionalism underlying “but the algorithms” arguments. It shouldn’t matter if editorial decision-making is done manually by humans or if humans encode those values into the machines.

X’s Alleged Suppression of His Posts. Taddeo-Waite complained that his posts weren’t getting his desired visibility even though he was a paid X subscriber. Thus, he frames the claim as a contract breach claim. This doesn’t move the court: “it is immaterial that the duty here was contractual in nature. Section 230 does not provide any immunity exception for breach of contract claims.” While I agree with this statement, the Ninth Circuit’s Calise and YOLO cases plainly reach contrary conclusions. This is another example of lower courts deviating from the Ninth Circuit’s 230/promises absolutism.

Having sidestepped the 230-contract interplay, the rest of the case goes quickly:

courts in the Ninth Circuit have routinely held that the plain text of § 230(c)(1) does not foreclose immunity for claims premised on information the plaintiff himself provides…

The approach that courts in the Ninth Circuit have used is persuasive here….the operative question is whether X, the interactive computer service, provided the information at the heart of Taddeo-Waite’s suppression claims. It did not. Until he terminated his account, Taddeo-Waite was an X user and an X poster, and the posts whose suppression he sues over were his own. Because Taddeo-Waite’s claims concerning X’s post suppression concern information provided by “another information content provider,” and because X meets the other two elements of § 230 immunity, X is immune from these claims.

It is mind-blowing to see a Texas court expressly saying it found the Ninth Circuit persuasive. I thought it was a point of immutable Texan independence to knee-jerk reject everything California does, regardless of merit.

In the end, this claim becomes a routine account termination/content removal claim, and it fails like the many dozens preceding it.

Also, I don’t mean to be callous, but I have little sympathy for anyone who subscribed to Twitter’s premium services post-Musk. If you’re paying for greater status in Musk’s petri dish of racism and authoritarianism, I lean towards Team Caveat Emptor. You get what you get and shouldn’t get upset.

(I miss Twitter of old, but I don’t regret not participating in Musk’s X. Find me on Bluesky).

Case Citation: Taddeo-Waite v. X Corp., 2026 WL 1391897 (N.D. Tex. April 23, 2026). This is a report and recommendation by Magistrate Judge Ray, so it’s pending before supervising Judge O’Connor.

Taddeo-Waite is proceeding pro se. He’s a Democratic candidate for Congress, though I wonder about his odds of success.

The post Section 230 Ends Lawsuit by Twitter Premium Subscriber–Taddeo-Waite v. X appeared first on Technology & Marketing Law Blog.

The transcript is a chapter in a remarkable new book entitled “Trust, Safety, and the Internet We Share: Multistakeholder Insights.” The ebook is open access, or you can buy a physical copy. I encourage you to check out the entire book. It has lots of great and unique content. You’ll see that I also contributed to a chapter about the Journal of Online Trust & Safety.

Note that the conversation transcript published in the book chapter is a little shorter than the one I posted to SSRN. The book imposed a tight word count budget, so we had to cut some parts of what I considered the golden master version of the transcript. The main substance is the same in both versions, but the book chapter shed some personality. The SSRN posting is the golden master version, like a director’s cut, so I prefer it!

Some Related Entries

* A Pre-History of the Trust & Safety Professional Association (TSPA)

* “IAPP Content Moderation in 2019” Conference Recap

* Roundup of February’s ‘COMO at Scale Brussels’ Event

* Announcing COMO Brussels, the Fourth Edition of the “Content Moderation at Scale” Conference Series, Feb. 5

* COMO: Content Moderation at Scale Conference Recap

* Roundup of Materials from HTLI’s Content Moderation & Removal Conference

* Conference Announcement: “Content Moderation & Removal at Scale,” SCU, Feb. 2

The post New Book Chapter Tells the TSPA and TSF Origin Stories appeared first on Technology & Marketing Law Blog.

YOLO stopped paying its lawyers and stopped fighting in court, so it defaulted in the case. That makes me wonder who can pay off any judgments against YOLO if YOLO is already gone?

Either way, the plaintiffs are proceeding without any opposition from YOLO. And yet…their case is so unmeritorious that the plaintiffs can’t get an unopposed default judgment. Obviously defective cases are what the Ninth Circuit thought was worth wrecking Section 230 to preserve…?

In the past 2 months, the district court has twice rejected a default judgment:

Bride v. Snap, Inc., 2026 WL 855148 (C.D. Cal. March 16, 2026)

In the March ruling, the court rejects class certification. The court flags numerous problems with class formation:

• if the defendant has defaulted, can a class claim really be adjudicated properly?;
• The class claims 26M users, but the plaintiffs based the numbers partially on vibes;
• the class includes non-bullied users and, remarkably, the alleged bullies;
• the named plaintiff’s suicide-based claim materially differs from other claims of bullying;
• the plaintiff lawyers’ interest in the case seems to be waning (maybe because YOLO is judgment-proof?);
• “What is “bullying” in this context? What are “harassing messages,” “objectionable content,” and “inappropriate usage”? Who are “abusive users”? How severe or frequent does a user’s conduct have to be for Yolo to be required to take action?”; and more.

Substantively, the court questions the claims’ merits:

here are Yolo’s statements that Plaintiffs challenge in this case as fraudulent misrepresentations:

• “YOLO is for positive feedback only. No bullying. If you send harassing messages to our users, your identity will be revealed.”

• “YOLO has no tolerance for objectionable content or abusive users. You’ll be banned for any inappropriate usage.”

• “Be kind, respectful, show compassion with other users, otherwise you will be banned.”

The court is hard pressed to conclude that the TAC adequately alleges that, as to element one, those statements were plausibly false promises to future bullying victims (as opposed to threats to bullies); that, as to element two, Yolo knew that by making these statements it was making false promises to future victims; as to element three, that Yolo intended to induce reliance from future victims that Yolo would take affirmative action if bullying, harassment, inappropriate usage, unkind, disrespectful, or noncompassionate behavior occurred; or, as to element four, that that any reliance Plaintiffs exhibited on these statements as promises that Yolo would take such action was justified.

The court adds: “there is a serious question regarding whether the statements challenged as misrepresentations are puffery.” Yes, claims about on-site safety are often puffery. All of this was obvious from the face of the complaint.

In other words, the district court is flummoxed by the aftermath of the venerable Ninth Circuit Section 230 switcheroo. The Ninth Circuit negated Section 230 for promise-based claims, but the “promises” here were never actually promises and thus could never form the proper basis of a claim. Thus, reviving the case gave false hope to the plaintiffs. The Ninth Circuit has made similar 230 switcheroos at least a dozen times, each time benefiting no one.

The court continues:

Yolo’s First Amendment defense also comes into play here. “Content moderation by social media platforms is generally considered expressive activity and is protected under the First Amendment.”…Consider, for example, a scenario in which this case had proceeded through discovery and Yolo contended that it reviewed some of the messages at issue and had determined that, for whatever reason, those messages did not violate Yolo’s community standards such that they should be taken down. The court’s review of that decision could implicate the First Amendment.

I have raised the same First Amendment concerns for many other cases against social media, including the social media addiction cases.

The court bottom-lines it:

at this stage of the proceedings, Plaintiffs have presented insufficient legal authority and evidence for the court to find it is appropriate to exercise its discretion to grant the relief Plaintiffs seek.

Bride v. Snap Inc., 2026 U.S. Dist. LEXIS 104978 (C.D. Cal. May 11, 2026)

Following the March ruling, the plaintiffs tried to address the judge’s concerns and sought class certification and summary judgment a second time. Their motion remains unopposed, yet it strikes out a second time.

Class Formation: Typicality

“The new class definition still includes people who were not bullied and the bullies themselves, and Plaintiffs are not typical of these groups or adequate to represent them.”

Also, “the court is concerned is that Ms. Bride would be so preoccupied with a wrongful death claim that she believes she (and she alone) has and its significant associated damages that she would give short shrift to her role, or be distracted in her role, as class representative on the class’s claims for misrepresentation and violation of state consumer protection statutes.”

Class Formation: Commonality/Predominance

Plaintiffs allege Yolo made misrepresentations including, “No bullying. If you send harassing messages to our users, your identity will be revealed,”  and “YOLO has no tolerance for objectionable content or abusive users. You’ll be banned for any inappropriate usage.” But for these statements to be false, a trier of fact would have to consider a host of questions regarding each individual situation: what is “bullying”? What are “harassing messages,” “objectionable content,” and “inappropriate usage”? Who are “abusive users”? How severe or frequent does a user’s conduct have to be for Yolo to be required to take action? These individualized issues go to the heart of Plaintiffs’ misrepresentation claims….

unlike statements like “this moisturizer is oil-free,” or “this supplement promotes healthy joints in dogs,” Yolo’s alleged misrepresentations add a critical predicate clause—one that indicates the representation will be true only in certain circumstances. In other words, “we will ban you” or “we will reveal your identity” might be sufficiently analogous to “this moisturizer is oil-free”; what sets this case apart from a case where a reliance inference might be appropriate is the portion of Yolo’s representations that tells users when (and only when) Yolo’s promises will be true. Those clauses—such as “if you send harassing messages”; “for any inappropriate usage”; and if you are not “kind, respectful” or do not “show compassion with other users”—involve individualized issues that make the reliance inference Plaintiffs seek inappropriate.

The court seems to be saying that if a marketing representation says “if you do X actions, you will get Y result,” it will hinder class formation because the examination of whether an individual plaintiff did the predicate X actions would require individualized determinations.

No Substantive Merit

The “what is not allowed”-type statements in this case are “YOLO has no tolerance for objectionable content or abusive users,” “YOLO is for positive feedback only. No bullying,” and “[b]e kind, respectful, show compassion with other users.” These “statements of policy” that “simply describe what content is allowed on” YOLO cannot “be considered ‘false’ for purposes of Plaintiffs’ claims.” [cite to Bogard v. TikTok]

The “we remove” statements in this case are “[y]ou’ll be banned for any inappropriate usage,” “[i]f you send harassing messages to our users, your identity will be revealed,” and “otherwise you will be banned.” Plaintiffs’ argument that these statements are actionable because they say exactly what Yolo will do is only half the picture—Yolo said they would do those things when something else happened. Here, like Bogard, the vagueness of the critical threshold criteria renders the alleged misrepresentations too vague to be enforced. The Bogard court commented that “[i]t is difficult to imagine standards more subjective than ‘meaningful’ and ‘accurate enough.'” In the court’s view, “inappropriate usage,” “harassing messages,” “bullying,” and being not “kind, respectful, [or] show[ing] compassion with other users,” are equally subjective….

in each of the alleged misrepresentations, it is clear that Yolo is speaking directly to bullies, telling them that if they engage in certain disapproved behavior, “your identity will be revealed” or “you will be banned.” There is no indication that Yolo is speaking to, or making any representation to, anyone else, including the victims of any bullying, harassment, or unkind, disrespectful, or noncompassionate messages. The court finds insufficient factual allegations supporting the notion that Yolo meant for their threats to bullies—made speaking directly to bullies in the “you” voice—to be taken by victims as enforceable promises that they, people to whom Yolo was not speaking, could rely on….

Finally, the court finds insufficiently plausible Plaintiffs’ allegation that Plaintiffs’ reliance on Yolo’s statements—by using the app believing Yolo would protect them on it—was justifiable.

This time, the district court dismisses the case, so it’s now appealable to the Ninth Circuit–where, presumably, the plaintiffs’ filings will remain unopposed by the nonexistent YOLO. Will the plaintiffs appeal? I presume yes. Will the Ninth Circuit recognize how its bad prior ruling exacerbated this mess?

This case involves many tragedies, including the litigation itself. This lawsuit never should have been brought, and it should not have been revived on appeal. It shows the revictimization inherent in the Ninth Circuit 230 switcheroo. It set up the victims to waste extra time, money, and emotional energy to reach the always inevitable conclusion that this particular lawsuit isn’t the proper way to redress the victims’ harms.

The post The YOLO Remand Shows Why the 9th Circuit Should Stop Carving Up Section 230–Bride v. Snap appeared first on Technology & Marketing Law Blog.

(Reminder: LegalForce runs Trademarkia).

It was a classic Judge Alsup move. The plaintiff’s dubious assertions survived a motion to dismiss, but Judge Alsup hammered the plaintiff when its proof ultimately didn’t support its claims. In my prior blog post, I wrote:

This case cries out for a trademark fee shift to the defense. That would be the appropriate consequence for forcing a 4-day trial and a 31 page opinion that repeatedly triggered the “what are we doing here?” meme. However, because the judge wasn’t pleased with the defense’s conduct either, the judge might decide to let each party marinate in the litigation choices they made.

Judge Alsup retired before resolving the fee request, so Judge Corley drew the short straw to resolve this stinker. She awards the defense over $90k in fees and costs–a sizable fee shift, but a trivial fraction of the alleged $1.3M in defense costs.

* * *

Judge Corley has tart words for both sides:

Plaintiff’s case became exceptional because Plaintiff alleged facts it knew to be false, discovered other facts demonstrating its case was meritless, took steps to obscure those facts, and continued to litigate its action. However, Defendant’s response was also exceptional. Defendant frivolously delayed discovery which would have removed any doubt Plaintiff’s case was meritless, violated local rules and court orders repeatedly in ways that also delayed resolution, and failed to move for summary judgment even after it had evidence to dispose of Plaintiff’s claims. So, only a small fraction of Defendant’s nearly $1.3 million in fees sought was reasonably incurred.

A pox on both sides’ houses?

One part of Judge Corley’s recitations took my breath away:

Plaintiff argues it “might have continued litigating just to be a thorn” but “ceased the fight once management made an executive decision in view of new facts.” But Plaintiff never ceased litigating; instead, Plaintiff insisted on trial and is appealing.

Say what? Continuing to litigate “just to be a thorn” seemingly violates multiple rules of professional conduct. I wonder if the applicable state bars are aware of this statement?

Judge Corley summarizes:

Plaintiff’s claims appeared just a bit better than meritless from the start, even when buttressed by Plaintiff’s knowingly false allegations. And Plaintiff’s claims cratered as the evidence came in. By February 13, 2025, Plaintiff had received the results of its second consumer survey showing no material likelihood of confusion, even under circumstances it had constructed. And by February 15, 2025, Plaintiff had received and pressure-tested Defendant’s productions showing Defendant had referred nobody to trademark lawyers during the period it used the accused mark. Other dissimilarities between business lines, marketing channels, and the marks were—at least by then—clear. The case was meritless, and Plaintiff knew or should have known it by February 15, 2025….

as the merits of Plaintiff’s case plummeted, Plaintiff’s misconduct escalated, including Plaintiff’s overstating or obscuring the merits to maintain its case…So, Plaintiff’s litigation was infected by bad faith at least after February 15, 2025.

Ordinarily, in plaintiff benchslaps like this, the defense will get a significant fee shift. But Judge Corley has many issues with the defense counsels’ choices, especially the decision not to seek summary judgment and instead let the case proceed to trial:

Because Defendant would not pay a $23,522 bill to end the action with certainty, or the cost to file a summary judgment motion, Defendant decided to incur around $550,000 in charges with the hopes of eventually ending the litigation. Assuming Defendant sought to limit costs, its approach makes no sense. Alternatively, assuming Defendant sought to vindicate its rights, its approach also made no sense; the proposed dismissal or a summary judgment motion would have sufficed.

If the defense’s $1.3M defense costs are correct, the fee shift is about 5% of its spend. That doesn’t sound like a good economic deal to me. And the plaintiff has already appealed the case to the Ninth Circuit, so both parties seemed destined to keep spending/wasting even more time and money on each other. Perhaps the $90k fee and cost shift provides enough clarity to the parties to price their exits.

* * *

Judge Corley ends her opinion with an exasperated plea/fortune cookie message:

“Both sides are cautioned to reflect before making any further filing.”

Created by ChatGPT May 2026

[It reminded me of Judge Kozinski’s closing line from Mattel v. MCA (the Barbie Girl case): “The parties are advised to chill.”]

Judge Corley offers some sage advice. Will the parties heed it? Or will they fall back into old habits? #Pause #Breathe #Reflect #Settle

Case Citation: LegalForce RAPC Worldwide P.C. v. MH Sub I, LLC, 2026 WL 1329654 (N.D. Cal. May 13, 2026). Defense counsel is Steven A. Schuman of Leonard, Dicker & Schreiber LLP and Wendy Evelyn Giberti.

The post Raj Abhyanker’s Firm Ordered to Pay $90k+ for Ill-Advised Trademark Enforcement Lawsuit–LegalForce v. LawFirms appeared first on Technology & Marketing Law Blog.

an anonymous social media account and online “persona” known as Rain Drops Media (“Rain Drops”) published a defamatory video falsely suggesting that Eizenga was an abusive partner who battered Monroe Capri Bryant (“Bryant”), a young social media influencer. The video in question consists of a collage of other social media posts and clips from Bryant’s live-stream featuring Plaintiff and Bryant together along with a caption that reads, “Woman was punched and assaulted by her boyfriend, she claims he still loves her and insists they’re ‘good’ . . . .” In the video, one of Bryant’s eyes is severely bruised, and Plaintiff can be seen attempting to kiss Bryant on the temple. The video has been viewed roughly four million times on the social media platform X…

WorldStar reposted Rain Drops’ video to its social media accounts (including
Facebook, Instagram, and worldstarhiphop.com) with a slightly modified caption that now read: “CYCLE OF ABUSE: Woman With A Black Eye Goes Live With Boyfriend Who Allegedly Punched Her, Insisting ‘He Loves Me’ And ‘We’re Good’ As He Kisses Her On Camera.” WorldStar also “tagged” the video with three identifiers: (1) “domestic violence,” (2) “Relationships,” and (3) “TikTok.” Plaintiff does not allege that Defendant created or otherwise altered Rain Drops’ video.

WorldStarHipHop defeats the lawsuit per Section 230.

ICS Provider. The court summarizes the general rule: “websites that allow third-party users to submit or upload content are providers of internet computer services.” WorldStarHipHop qualifes:

Plaintiff does not allege that Defendant independently generates any content whatsoever. Rather, Plaintiff alleges that Defendant merely reposted the challenged content without editing the video itself

The court seems to be conflating this factor with the other two. Plus, if WorldStarHipHop is posting to third-party social media like Facebook and Instagram, it might be more accurately characterized as an ICS user, not provider.

Publisher/Speaker Claim. Plaintiff conceded this.

Third-Party Content. The court quickly jumps to the Roommates.com exceptions. It defines the rule as “a website operator may be held liable for third-party content where (1) it “substantively alters” the content and where (2) the substantive alteration is “directly involved in the alleged illegality.”” The court continues:

The bar for “substantive alteration” is high. To start, the test requires something above and beyond the “exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.” Nor is it enough for a plaintiff to allege that a defendant promoted content through the use or creation of algorithms, tags, video thumbnails, summaries, posts, or animations.

WorldStarHipHop doesn’t meet these standards:

Plaintiff alleges that Defendant made just three changes to Rain Drops’ original video: (1) adding “CYCLE OF ABUSE” to the caption, (2) adding “allegedly” to the caption, and (3) tagging the video with a “domestic abuse” identifier. Those minor changes—none of which altered the video itself—fall far short of the allegations required to make out substantive alteration. [cite to Doe v. Fenix and L.H. v. Marriott.]…The minor, paratextual modifications at issue here fall far short of the more substantial alterations courts found wanting in Fenix Int’l and L.H….

Defendant created nothing. It reposted a preexisting video and adopted a preexisting caption almost word-for-word. The addition of the leading phrase “CYCLE OF ABUSE” and the “domestic violence” tag at most “augment” or “develop[] by inference” the alleged illegality already at issue in the original video.

The court distinguishes the problematic Doe #1 v. MG Freesites ruling, saying that the MG Freesites court excluded CSAM from the definition of “information” (an obviously wrong conclusion); plus “the allegations at play in MG Freesites were much more favorable to the plaintiff than what’s on display here. At most, Plaintiff has alleged that Defendant added the “domestic violence” tag to Rain Drops’ video, but none of the other types of allegations from MG Freesites are present here.”

* * *

I don’t think all courts would treat the WorldStarHipHop-added headline and tags as third-party content. This is a highly confused area of Section 230 jurisprudence. A court could have said that the headline and tags weren’t an integral part of the video (they are metadata) and thus don’t necessarily need the same legal treatment as the video. A court also could say that even small semantic differences between the original headline and video tags and WorldStarHipHop’s headline and tags create new meaning added by WorldStarHipHop.

Also, it’s weird that the court appears to gloss over WorldStarHipHop’s download-and-reupload of the Rain Drop’s video. (The court never says that WorldStarHipHop only links to or embeds the third-party video; that might change the case’s complexion substantially). I have repeatedly blogged about Section 230’s ambiguities from treating downloaded-and-reuploaded content as “information provided by another information content provider.” (See, e.g., the D’Alonzo case 20 years ago). In light of Section 230’s downward trendlines, it’s a little jarring to see the court discuss WorldStarHipHop taking all of these actions itself and still concluding that everything remained third-party content.

(WorldStarHipHop would also raise copyright concerns with an download/reupload, but this plaintiff would not be the right enforcer of that issue).

Case Citation: Eizenga v. MediaLab.Ai Inc., 2026 U.S. Dist. LEXIS 103543 (May 11, 2026). Also of interest: my 2012 post on Scott v. WorldStarHipHop.

The post WorldStarHipHop Gets Section 230 Dismissal–Eizenga v. MediaLab appeared first on Technology & Marketing Law Blog.

Illinois Right of Publicity Act

“D’Ambrosio’s IRPA claims fail because he has not sufficiently alleged that any defendant used his likeness for a commercial purpose.”

With respect to Facebook:

A free-floating profit motive is not enough…Meta did not have a commercial purpose in terms of the IRPA merely because it displayed advertisements for products or services unrelated to the posts on the same page with them.

Doxing Act

This is the Seventh Circuit’s first review of Illinois’ recently enacted Doxing Act. It says there are six elements to the claim:

(1) intentional publication of personally identifiable information; (2) the published information identifies a person without reliance on extrinsic sources; (3) lack of consent to the publication; (4) intent to harm or harass; (5) knowledge or reckless disregard of a reasonable likelihood of death, bodily injury, or stalking to the person whose information is published; and (6) one or more of the listed harms results.

The panel says D’Ambrosio didn’t sufficiently allege Rajala’s scienter about placing him in reasonable fear of death, bodily injury, or stalking:

D’Ambrosio never alleged that he was actually stalked or subjected to bodily injury, nor that anyone attempted to do so. D’Ambrosio identified no past incidents of physical harm or stalking directed against men discussed in the Group. The Group’s rules prohibit sharing screenshots with other people, and its administrators warn users about the risks of confronting men they personally know whom they see posted on it. The allegation that Ms. Rajala made “100,000 unidentified women” become aware of his conduct does not, without more, support an inference that she recklessly disregarded a reasonable likelihood that one of those women would physically harm D’Ambrosio or stalk him. Recall that the purpose of this online group was to help women identify men to avoid.

With respect to the Spill the Tea group operators:

D’Ambrosio’s allegations reasonably support an inference that the STT defendants recklessly encourage users to post sensational content regardless of its potentially tortious nature and that they take measures to prevent the subjects of such posts from becoming aware of their existence and to assist users in avoiding legal responsibility when they cross the line. Notwithstanding efforts to prevent information posted on the Group (and the others nationwide) from leaving the platform, nothing can really stop allegations of anything from rudeness to serious felonies from spreading elsewhere…We find no allegations in this case, however, from which we could reasonably infer that the STT defendants knew of or recklessly disregarded a risk to D’Ambrosio of death, bodily injury, or stalking.

The panel has several (unfair IMO) criticisms fordater accountability boards like Spill the Tea. I wonder if those criticisms could be correlated with the fact that all three judges on the panel were old white men who never navigated the dating world as millennial women?

Though the court rejects this doxing claim, I continue to be extremely nervous about the chilling effects of anti-doxxing statutes. A “reckless disregard” standard gives plaintiffs a lot of room to manufacture controversy out of standard online chatter. Given that thin-skinned individuals–even the US government–take unjustified views of what constitutes doxxing, anti-doxxing statutes are well-positioned to become SLAPP factories.

Defamation

The allegedly defamatory post referenced someone else, not D’Ambrosio, and there was no reason for anyone to believe the post equated the two people. D’Ambrosio also doesn’t make a sufficient showing of reputational damage. As a result, the court says it doesn’t need to address Section 230 because the claim fails for lack of merit. Sidestepping Section 230 is probably for the best in light of the Seventh Circuit’s penchant for overcomplicating its Section 230 analysis.

Sanctions

The panel says “This is a relatively rare appeal in which sanctions appear to be appropriate [because] This appeal was entirely frivolous at least as to each of the Rajalas.” D’Ambrosio sued Rajala’s parents. “Outside of the statement of the case, the Rajalas were mentioned only once in D’Ambrosio’s opening brief.” As for Rajala, the doxxing claim “is replete with fictitious quotations and misstatements of law, matter that cannot form the basis of a non-frivolous appeal.” (More on the hallucinations in a moment). The defamation and false light claims are also unsupportable. The court orders the plaintiff’s lawyers to show cause regarding sanctions.

Misuse of Generative AI

The court says the plaintiffs’ filings, made by lawyers from Trent Law Firm PC, “bear the hallmarks of the misuse of generative artificial intelligence.” The court even notes the firm’s website “boasts of the firm’s extensive incorporation of artificial intelligence into all areas of its representation.” The court refers the matter (plus the frivolous claims) over the Illinois State Bar, but it doesn’t independently sanction any Generative AI misuse. Instead, it makes a short but grandiose statement against Generative AI misuse.

As I’ve mentioned before, I’m increasingly seeing Generative AI misuse in cases where the lawyers display other violations of attorney professionalism, such as the frivolous claims in this case. Maybe the court decided to address the frivolous claims (which appeals courts routinely overlook, at least in terms of sanctions) more aggressively as a backdoor way of redressing their concerns about the Generative AI misuse.

Parting Thoughts

Nikko D’Ambrosio is a multi-time loser: he didn’t seem to be a very good boyfriend, he’s not a good citizen (he committed tax violations), and he’s not a good plaintiff. On the plus side, he did find one perfect match: he found lawyers just as dedicated as he was to Streisand Effect-ing their way to, um, stardom.

Case Citation: D’Ambrosio v. Meta Platforms, Inc., 2026 WL 1361951 (7th Cir. May 15, 2026).

If you have the stomach for it, try to read Trent’s “David v. Goliath” blog post from 2025 about this case. The post has zingers like: “We have a great team—project managers, everything related to AI now. Even Meta can’t beat us.” In retrospect, about that…

The post Court Rejects Lawsuit Over Online Criticisms of a Dater–D’Ambrosio v. Meta appeared first on Technology & Marketing Law Blog.

The court grants summary judgment to the photographer on infringement. The fair use defense fails.

Purpose of Use–Commercial. The blog post describes the problems with canine obesity, which is sorta educational. However…

The article recommends buying natural dog food, and, on another tab on the website, Defendant sells natural dog food. The canine focused article is also related to the main business purpose of the website, selling labradors. Indeed, the title of the article is “A Breeder’s Note On Canine Obesity,” calling attention to the fact that the author is herself a dog breeder. Other tabs on the website also link to products for purchase related to homeopathic dog health treatments….

Moreover, the photo itself is, at best, only tangentially related to the article’s educational purposes. The article alone provides any realized educational benefit, while the photograph is merely an attention-getting thumbnail. The article does not describe or interact with the photograph at all, nor is the photograph asserting anything of educational value

The blog post is educational content from a market vendor who has specialized expertise. Is it educational or commercial? ¿Por qué no los dos?

I don’t love how the court links commercial activity elsewhere on the website to the blog post. Yes, they are all part of the same enterprise, but I thought we had moved past this kind of link-counting 15+ years ago.

Purpose of Use–Transformative. “Defendant’s use of this photograph, as an eye-catching graphic atop an article about dog food options on a blog connected to their website which also sells dog food, is not transformative from the original use and purpose of the graphic. Defendant did not alter the work, instead reusing the photograph in its entirety.”

Nature of the Work. “The photograph at issue is a creative work, not an informational photograph. The photograph is not a factual or scientific depiction of an obese dog, rather, the photograph is a humorous depiction of two animals looking at a scale.” [Putting aside the dog body-shaming, the blog post now uses a photo of a chonky dog in place of the photo at issue in this case.]

Amount Taken. “Defendant advances no argument for why including the entire photograph was necessary….This is not a situation where the entire photograph was used “contextually,” as “explanatory” or “background” material to “aid in understanding and interpreting” a permissible purpose.”

Market Effect. The court counts this factor towards the photographer:

the extent of market harm from Defendant’s particular use of the photograph is minimal. Defendant’s particular actions did not cause Plaintiff’s market great harm, as Defendant did not offer the photograph for resale and the blog post was seemingly insulated from other platforms and located only on the breeder’s website. Additionally, Defendant’s audience was relatively small. At the time Defendant responded to Plaintiff’s interrogatories, and at the time the photograph was removed from the website, the article had forty-three (43) views….

[However,] should a large part of Plaintiff’s consumer base begin copying his work without paying for it, Plaintiff’s incentive to continue creating such works would diminish greatly

The court rejects the fair use defense and awards summary judgment on infringement to the plaintiff. The court will tackle the remedies issue in a later round.

Implications

Unsurprising outcome.

This isn’t a particularly surprising result. Verbatim republishing of a third-party photo is inherently risky, even for bloggers (see, e.g., Golden v. Grecco). It’s even riskier for commercial entities like the breeders in this case.

How is this case financially sensible for anyone?

I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it federal court and reach summary judgment???

And why isn’t this case in the CCB, which seems like it was tailor-made for low-value cases like this? Regarding the latter question, the plaintiff is represented by the Sanders Law Group, which brings a high volume of copyright cases. Maybe the law firm is managing the total number of cases they bring at the CCB…? Or perhaps they hope to get attorneys’ fees, which normally aren’t awardable in the CCB.

In any case, with 43 views at issue, the photographer’s actual damages should be near-zero. Statutory damages are possible, and the court did accept the plaintiff’s argument that some deterrence of unpermitted copying was necessary even if the photographer didn’t have a standard licensing program for the photo. But I can’t see more than a few thousand dollars of statutory damages at most–well below the litigation costs.

As a result, I don’t see how the photographer is going to get any real payoff here. Even the plaintiff’s lawyers aren’t guaranteed to get a fee shift. Without the fee shift, this case will be a big financial loser for them and the photographer.

All of this makes it a bummer for everyone–plaintiff, defendant, and society–that the parties couldn’t settle this case pre-filing. But it takes two to tango with settlements. I don’t know what conversations took place here, but I’ve seen far too many photographers make extortionate settlement demands that tip the defendants’ balance towards fighting rather than paying off. If I were the judge and I saw 43 views at issue, I would have pressed the litigants hard to stop wasting their time and money in court.

Why Generative AI should moot lawsuits like this

The photo’s concept might be a good way of depicting dogs who need to lose some weight, but that’s not protected by copyright. And implementing that vision by manufacturing this photo in physical space is resource-intensive. In addition to the other props, the photographer needs a dog and a cat, and they need to cooperate simultaneously.

In contrast, creating an image like this via Generative AI is trivially easy. I went to ChatGPT and gave it the following instructions, which are just a paraphrase of how the court opinion described in the photo:

(Note the possibility that Vedros’ photo was in ChatGPT’s training data).

For now, I would say that Vedros’ image is slightly more effective at communicating the desired message than my quick ChatGPT output. Also, the ChatGPT image is wonky. For example, it lists the dog’s weight with two decimal points and the numbers are upside-down. However, if I cared, I could have easily improved the image through a few additional prompts. And as a substitute for the original photo, the ChatGPT image works perfectly fine for a blog post illustration.

So, other than ignorance of copyright law, why would a blogger cut-and-paste a copyright photo from the Internet when a non-infringing substitute is just a few extra clicks away? A lawsuit like this heightens the demand for Generative AI replacements. I understand that photographers feel compelled to protect their interests, but I don’t think this particular lawsuit is a net win for the photographer community.

The defense did raise the AI substitutibility, but only as a reason to permit verbatim copying, which the court doesn’t appreciate:

Defendant asks the Court to rule, without any legal support, that copyright does not protect works which could have been generated with AI. Such a holding would destroy the foundations of copyright law. The Court declines to endorse or entertain this proposition.

[In a footnote, the court adds:] Defendant could have also taken its own photograph of a dog on a scale with the very dogs it breeds. Perhaps Defendant could also sculpt Michaelangelo’s David, or re-paint the Mona Lisa, depending on Defendant’s talent. Under Defendant’s logic, the only works entitled to protection would be those which no machine or human could recreate. This argument cannot stand.

Case Citation: Vedros v. The Sterling Group of the Twin Tiers, Inc., 2026 WL 1348120 (M.D. Pa. May 14, 2026).

The post Blogger’s Photo Republication Isn’t Fair Use–Vedros v. Endless Mt. Labradors appeared first on Technology & Marketing Law Blog.

Clicking on the “View your Mention” button leads to this screen:

In both cases, the fact statement that X mentioned Y is presumably true, and it provides a sample of how the Mentions service works for its subscribers. At the same time, it does use X’s name in what looks like advertisements to convert Y to a paying customer. This reminded me of Facebook’s sponsored stories, which similarly relayed a true fact statement (X bought an item from Y) in what was converted into a paid advertisement.

Academia also targeted non-accountholders who visited a professor’s profile, showing them house ads:

The plaintiffs filed a class action lawsuit over California’s publicity rights. Academia tries to send the case to arbitration three different ways (or, arguably, four different ways). They all fail.

Arbitration Attempt #1: Disclosure about Google’s Privacy Practices

In 2015, Judge used Academia’s “find your friends” feature to import his social graph from Google. Google displayed the following screen in the process:

The disclosure language never mentions Academia’s TOU at all, so…

(Also, Academia is trying to impose the arbitration requirement in its TOU, but the disclosure only permits Academia “to use your information”).

Arbitration Attempt #2: 2022 Google Pop-Out

In 2022, Judge signed into Academia using Google’s login functionality. Academia doesn’t know exactly what that process looked like but this is its “best estimation”:

The disclosure says to “see” Academia’s TOS but doesn’t have an if/then grammar, so….

A reminder that if you’re trying to form the TOS and can’t provide highly credible evidence of what the TOS formation screen looked like, bonne chance.

Arbitration Attempt #3: Judge was a power user

Academia argues that Judge: (1) viewed its website (which contains a link to its Terms of Use) tens of thousands of times, 29 times scrolling to the footer with the Terms link and twice clicking buttons immediately next to that link; (2) twice viewed the website when it had banners announcing that the Terms had changed; (3) opened thousands of emails from Academia containing a link to the Terms, and three times clicked an adjacent link; and (4) viewed the login page in 2016, which contained a notice that “By clicking Sign Up, you agree to our Terms,” and then subsequently created a new account in 2022.

The court says the first three don’t indicate an unambiguous manifestation of assent. As for #4, the court says there’s no temporal coupling (viewed disclosure in 2016, signed up in 2022. Heck, I can’t even remember what I had for breakfast this morning). Arbitration denied.

Section 230

Having denied arbitration, the court turns to the case’s merits. The Section 230 defense flames out:

Academia has materially contributed to the alleged unlawfulness of the conduct here. Judge alleges that Academia sends email advertisements to users stating that he has mentioned their work. The linked webpage in that email informs the user that several papers, “[i]ncluding one written by” Judge, mention the user and asks the user to “Try Premium for $1 and view your Mentions.” Additionally, after a user views Judge’s profile, Academia is alleged to provide that user with similar promotional advertisements. Judge therefore alleges that Academia unlawfully packages user-contributed content—his name and purported mention of the user—within its own solicitation to pay for its Mentions service. Thus, Academia “becomes the developer, at least in part, of that information.”

Academia contends that it is providing “notifications [that] truthfully conveyed user-generated citation information created by plaintiff himself.” Not so. Instead, Academia “transformed the character of Plaintiffs’ words . . . and actions into a commercial endorsement to which they did not consent.” [Cite to Fraley v. Facebook.] The advertisements disseminate Academia’s own message (subscribe to our Mentions service) with only a vague reference to user-generated content. As such, they are not akin to simply “disseminating the same content in essentially the same format to a search engine.” Section 230 does not allow a website to cloak its own advertisements as user-created content and thereby evade state-law liability.

Arbitration Attempt #4: Attempted TOU Amendment

After Judge filed the lawsuit, Academia purported to amend its TOU:

Also, “users must click an “Agree” button referencing the Terms of Use before continuing to use Academia.” The new TOU authorizes the use of accountholders’ names in advertising.

The court treats this purported amendment as a misleading communication to the putative class members, so it triggers the protective provisions of FRCP Rule 23(d). In other words, because the changes affected the rights of class members, sending the email after the lawsuit was filed constituted a regulated communication with putative class members. The court had issues with the lack of disclosure that users weren’t previously bound by the arbitration clause, the fact that clicking on the links apparently constituted the acceptance of “using your account,” and that the new consent-to-advertising provision would extinguish pending claims. So the court strikes the effects of the purported TOU amendments on putative class members.

I’m not sure if it’s novel for the court to treat TOU/TOS amendments during the pendency of a class action lawsuit as potentially improper communications to putative class members, but I can’t recall seeing it before. The court’s approach shuts down some of the potential gamesmanship that some defendants play where they amend the TOS post-filing to try to eviscerate pending claims, with provisions such as claims waivers or arbitration requirements. If you are a defendant in a pending lawsuit and you hope a post-filing TOS amendment can eliminate it, tread cautiously.

Structurally, this case resembles the yearbook and people-finder cases, and it goes about as well for the defendants as those cases have.

Case Citation: Judge v. Academia, Inc., 2026 WL 1256876 (N.D. Cal. May 7, 2026). Academia is represented by a defense team from Fenwick and Quinn Emanuel.

Prior blog posts on Yearbook and Genealogy Cases

• Section 230’s Application to Account Terminations, CSAM, and More
• Free-Trial Commercial Database Defeats Publicity Rights Claim–LaFleur v. Yardi
• Another Tough Ruling for People Search Databases–Camacho v. Control Group Media
• Three More Yearbook/People Database Cases Signal Trouble for Defendants
• Background Reports Protected by Section 230–Dennis v. MyLife
• Yearbook Defendants Lose Two More Section 230 Rulings
• Yearbook Database Cases Are Vexing the Courts–Sessa v. Ancestry
• Court Casts Doubt on the Legality of the Data Brokerage Industry–Brooks v. Thomson Reuters
• Section 230 Doesn’t Protect Yearbook Website’s Ads–Knapke v. Classmates
• Section 230 Covers Republication of Old Yearbooks–Callahan v. Ancestry
• Section 230 Doesn’t Protect Advertising “Background Reports” on People–Lukis v. Whitepages

The post TOS Formation Fails, and So Does Section 230–Judge v. Academia appeared first on Technology & Marketing Law Blog.