Shopper Critiques
* Route App, Inc. v. Heuberger, 2023 WL 5334192 (D. Utah Aug. 18, 2023):
Heuberger argues that Route’s Breach of Contract declare fails as a result of the non-disparagement provision within the Phrases is unenforceable below the Shopper Evaluate Equity Act (“CRFA”) and inapplicable as a result of Heuberger’s feedback mirrored his private experiences with Route, and had been both considerably true or statements of opinion. The non-disparagement clause reads: “[a]t all instances through the Time period and thereafter, neither Occasion will, whether or not immediately or not directly, make any disparaging, adverse, or false or deceptive statements with respect to the opposite Occasion.” Route responds that CRFA doesn’t apply to industrial solicitations and that the non-disparagement settlement just isn’t topic to common-law defamation necessities.
The CFRA “voids provisions of type contracts that limit a celebration to that contract from conducting a ‘efficiency evaluation of, or different related evaluation of, together with by digital means, the products, companies, or conduct of an individual.’” Viewing Heuberger’s feedback within the mild most favorable to Route, the Court docket concludes that at the very least a few of Heuberger’s feedback are usually not a “efficiency evaluation of, or different related evaluation of,” Route’s companies. The feedback are extra akin to a industrial solicitation of a possible buyer than a client assessment, and thus fall outdoors the scope of the CFRA. Furthermore, there’s nothing to counsel that the CFRA was designed for use as a protection to a non-public breach of contract motion. Additional, the disparagement settlement just isn’t restricted by common-law defamation necessities.
* Are docs nonetheless violating the Shopper Evaluate Equity Act to gag their sufferers? Perhaps. . . State v. Alderwood Surgical Heart, LLC, 2023 WL 3435305 (W.D. Wash. Could 12, 2023); and State v. Alderwood Surgical Heart, LLC, 2023 WL 3687053 (W.D. Wash. Could 26, 2023). See additionally my CRFA summary and piece on doctors and consumer reviews.
* NYAG: Lawyer Common James Secures $100,000 from Manhattan Physician Who Manipulated On-line Critiques
* Haworth v. Pinho, 2023 WL 3017282 (Cal. App. Ct. April 20, 2023). Affected person arrange an internet site, creepyplasticsurgeon.com. The physician sued. The courtroom dismissed the anti-SLAPP movement as a result of the matter was of public curiosity, however the physician met his pleading burden.
* NY Times: SmileDirectClub to Launch Prospects From NDAs in Settlement
Different Shopper Points
* Pop v. Lulifama.com LLC, 2023 U.S. Dist. LEXIS 125429 (M.D. Fla. July 20, 2023). Luli Fama makes swimwear. The plaintiff alleges that Luli Fama pays Instagram influencers to advertise its merchandise, however the influencers don’t disclose the funds. The courtroom says the FTC endorsement pointers can’t type the idea of a Florida client safety declare.
* Martin v. Thi E-Commerce, LLC, 2023 WL 5949029 (Cal. App. Ct. Sept. 13, 2023). Court docket rejects a discrimination declare towards an internet site that doesn’t assist display readers as a result of “the ADA unambiguously applies solely to bodily locations. Furthermore, even when we had been to search out ambiguity and determine the problem on the idea of legislative historical past and public coverage, we’d nonetheless conclude that the ADA doesn’t apply to Websites.”
* Reuters: US retail lobbyists retract key declare on ‘organized’ retail crime. NY Times: Retail Group Retracts Startling Declare About ‘Organized’ Shoplifting
* Turtle Island Meals, S.P.C. v. Pressure, No. 22-30236 (fifth Cir. Apr. 12, 2023). Restrictions on promoting vegan merchandise as meat survives First Modification problem as a result of the courtroom accepts the state’s interpretation that it solely applies to “deceptive” advertising, which the courtroom says is outdoors the First Modification. Ugh.
* The ultimate model of the INFORM Consumers Act.
* WSJ: Job Listings Abound, however Many Are Faux
* Intelligencer: Lina Khan’s Tough 12 months
AI
* NY Times: Google Devising Radical Search Adjustments to Beat Again A.I. Rivals
* MIT Technology Review: This new information poisoning device lets artists struggle again towards generative AI (concerning “Nightshade”)
Privateness
* FTC v. Kochava, Inc., 2023 WL 3249809 (D. Idaho Could 4, 2023)
an organization might considerably injure shoppers by promoting their delicate location info and thereby subjecting them to a big danger of struggling concrete harms by the hands of third events. However right here, the FTC has not alleged that customers are struggling or are more likely to endure such secondary harms. It solely alleges that secondary harms are theoretically doable …[the FTC] should not solely declare that Kochava’s practices might result in client harm, however that they’re possible to take action, as required by the statute…
Disclosing the place an individual has been each fifteen minutes over a seven-day interval might undoubtedly reveal info that the individual would contemplate non-public, akin to their journey habits, medical circumstances, and social or spiritual affiliations…
at the very least three elements reduce the severity of the alleged privateness harm. First, the information Kochava sells just isn’t, on its face, delicate or non-public. Quite the opposite, any non-public info that’s revealed in Kochava’s information financial institution could be ascertained solely by inference. However inferences are sometimes unreliable. For instance, geolocation information displaying {that a} gadget visited an oncology clinic twice in a single week might reveal that the gadget person suffers from most cancers. Or it might as an alternative reveal that the individual has a pal or member of the family who suffers from most cancers. Or that the individual is a pharmacist or is within the enterprise of promoting or sustaining medical gadgets. The purpose is that the FTC doesn’t truly declare that Kochava is disclosing non-public info, however reasonably that it’s promoting information from which non-public info could be inferred. Though this distinction doesn’t remove all of the privateness issues voiced by the FTC on this lawsuit, it does reduce the severity of the alleged privateness harm.
Second, the knowledge that may be inferred from Kochava’s geolocation information is mostly accessible via different, lawful means. A 3rd get together might, for instance, observe an individual’s actions on public streets and sidewalks as they go to and from dwelling or a medical facility. A 3rd get together can also uncover an individual’s dwelling tackle by reviewing publicly accessible property information. Privateness pursuits within the form of location information Kochava sells are subsequently weaker than, for instance, privateness pursuits in confidential monetary or medical info which isn’t in any other case publicly accessible
Lastly, the FTC has not even typically indicated what number of gadget customers might endure privateness intrusions.
* In re Arthur J. Gallagher Data Breach Litigation, 631 F.Supp.3d 573 (N.D. Sick. Sept. 28, 2022):
– “Defendants argue that Could fails to allege a particular motion Defendants took or didn’t take that breached an obligation below the CCPA to keep up “cheap” safety measures. However they cite no authority requiring such specificity at this stage of the proceedings. This Court docket finds it ample that Could alleges a Knowledge Breach brought on by Defendants’ purported lack of cheap safety measures that allowed third events to view and steal her private info.”
– “The CCPA defines “client” broadly as a “pure one that is a California resident,” and Could is a California resident… The Could grievance sufficiently alleges that Defendants are “companies” as a result of, in line with Could, they collected her private info.”
* Florence v. Order Categorical, Inc., 2023 WL 3602248 (N.D. Sick. Could 23, 2023):
Florence alleges he despatched Order Categorical a discover figuring out its alleged violation of § 1798.150. In Order Categorical’s response, it claimed to have enhanced its safety measures, which Florence argues, amounted to the “implementation and upkeep of cheap safety procedures and practices”—reasonably than a treatment—below § 1798.150(b). Florence alleges additional that Order Categorical’s response to his discover didn’t clarify how its enhanced safety measures truly cured the alleged CCPA violation. Order Categorical didn’t encrypt Florence’s private figuring out info or delete the knowledge it not wanted to keep up on its internet-accessible community. Nor has Order Categorical expanded on its naked assertion within the movement to dismiss that it “cured all alleged violations throughout the requisite time interval.” Accordingly, Florence has acknowledged a declare below the CCPA.
Content material
* Nature: “publicity to Russian disinformation accounts was closely concentrated: only one% of customers accounted for 70% of exposures. Second, publicity was concentrated amongst customers who strongly recognized as Republicans. Third, publicity to the Russian affect marketing campaign was eclipsed by content material from home information media and politicians. Lastly, we discover no proof of a significant relationship between publicity to the Russian international affect marketing campaign and adjustments in attitudes, polarization, or voting habits”
* Reason: The Backpage Defendants By no means Stood a Likelihood
* Tech Policy Press: “Deplatforming Reduces Total Consideration to On-line Figures, Says Longitudinal Research of 101 Influencers”
* CCIA Research Center: “Hate Speech & Digital Adverts: The Influence of Dangerous Content material on Manufacturers”:
In a hypothetical situation the place hate speech was not moderated on social media companies, analysis additionally discovered adverse implications for manufacturers that publicize on the companies when hate speech was seen. Proximity to content material that included hate speech resulted in some respondents reporting that the content material made them just like the advertiser much less. It additionally resulted in a slight lower in favorable opinions of the advertiser model, in addition to a bigger change in internet favorability, with a number of the motion shifting from favorable opinions to impartial (i.e., neither favorable nor unfavorable) opinions. Respondents who seen content material with hate speech additionally reported a decrease chance of buying the marketed model that immediately preceded the content material, in comparison with these respondents who seen social media content material with a optimistic or impartial tone proper after the advert.
The outcomes counsel that client sentiment towards a social media service would decline if it didn’t take away user-generated hate speech, and that client sentiment would additionally decline for manufacturers that publicize on the identical platform adjoining to stated content material. These findings point out that social media companies have a rational incentive to reasonable dangerous content material akin to hate speech and are per digital companies’ assertions that not all engagement provides worth and that, in reality, some engagement is of adverse worth.
* Houston v. County of Maricopa, 661 F.Supp.3d 947 (D. Ariz. March 15, 2023). Court docket upholds publication of mugshots on the Maricopa County Sheriff’s Workplace (MCSO) web site:
The publication of Plaintiff’s mugshot and arrest info is “correct info” that’s admittedly public file and which supplies transparency into the actions of the MCSO. The MCSO web site doesn’t present a method to disgrace Plaintiff “by, say, posting feedback beneath his file,” and any “humiliation is however a collateral consequence” of individuals voluntarily looking for out the knowledge. In brief, MCSO’s “Mugshot Lookup” could also be poor coverage, it might be embarrassing and unseemly, even vulgar, however it isn’t unconstitutional
* “Civilizing social media: The effect of geolocation on the incivility of news comments“: “We discovered that displaying the IP location within the feedback part elevated location-based incivility, as geolocation can perform as an efficient cue that alerts ideological affiliation and fuels conflicts between customers holding totally different political positions on the Chinese language Intern.”
* AP: Confidential doc reveals key human position in gunshot tech
* Ronni Vogelsang, The Failure of FOSTA: Unintended Penalties Outweigh Good Intentions, 44 Univ. of La Verne Legislation Evaluate 59 (2023):
Legislators confidently asserted that FOSTA-SESTA would decimate the net intercourse trafficking business. Nevertheless, three years after the regulation’s enactment, it’s clear that FOSTA-SESTA has miserably failed to perform that objective and produced detrimental penalties that have an effect on the struggle towards intercourse trafficking. As a substitute, the regulation has unintentionally enabled the growth of on-line intercourse trafficking whereas concurrently inhibiting the investigation and prosecution of those crimes….
Everybody agrees that intercourse trafficking is an issue, however FOSTA-SESTA just isn’t the answer. Legislators have unintentionally harm the very victims they had been attempting to guard. Retracting the regulation will take away boundaries in order that extra traffickers could be held liable and victims obtain the justice they deserve.
FOSTA’s adverse results have been documented earlier than, however the story deserves to be informed and retold as proof of the dangers related to Part 230 reform.
Nevertheless, I consider we should always cease charitably assuming legislators had “good intentions” after they carelessly disregard the potential harms related to their coverage proposals. The proponents of SESTA/FOSTA claimed they had been attempting to guard victims of intercourse trafficking, however these claims had been possible pretextual at the very least partly. Equally, I disagree with characterizing FOSTA’s penalties as “unintended” when the legislators had been repeatedly warned of the precise dangers that got here to fruition and the legislators proceeded anyway.
[You can see the same titling issues with a remarkably similarly titled 2021 Temple Law Review paper, “Good Intentions and Unintended Consequences: SESTA/FOSTA’s First Two Years,” unfortunately not cited in the Vogelsang piece.]