United States: How To Protect Your Company's Social Media Currency

Last Updated: March 30 2016
Article by Aaron P. Rubin and Leanne Ta

Today's companies compete not only for dollars but also for likes, followers, views, tweets, comments and shares. "Social currency," as some researchers call it, is becoming increasingly important and companies are investing heavily in building their social media fan bases. In some cases, this commitment of time, money and resources has resulted in staggering success. Coca-Cola, for example, has amassed over 96 million likes on its Facebook page and LEGO's YouTube videos have been played over 2 billion times.

With such impressive statistics, there is no question that a company's social media presence and the associated pages and profiles can be highly valuable business assets, providing an important means for disseminating content and connecting with customers. But how much control does a company really have over these social media assets? What recourse would be available if a social media platform decided to delete a company's page or migrate its fans to another page?

The answer may be not very much. Over the past few years, courts have repeatedly found in favor of social media platforms in a number of cases challenging the platforms' ability to delete or suspend accounts and to remove or relocate user content.

Legal Show-Downs on Social Media Take-Downs

In a recent California case, Lewis v. YouTube, LLC, the plaintiff Jan Lewis's account was removed by YouTube due to allegations that she artificially inflated view counts in violation of YouTube's Terms of Service. YouTube eventually restored Lewis's account and videos but not the view counts or comments that her videos had generated prior to the account's suspension.

Lewis sued YouTube for breach of contract, alleging that YouTube had deprived her of her reasonable expectations under the Terms of Service that her channel would be maintained and would continue to reflect the same number of views and comments. She sought damages as well as specific performance to compel YouTube to restore her account to its original condition.

The court first held that Lewis could not show damages due to the fact that the YouTube Terms of Service contained a limitation of liability provision that disclaimed liability for any omissions relating to content. The court also held that Lewis was not entitled to specific performance because there was nothing in the Terms of Service that required YouTube to maintain particular content or to display view counts or comments. Accordingly, the court affirmed dismissal of Lewis's complaint.

In a similar case, Darnaa LLC v. Google, Inc., Darnaa, a singer, posted a music video on YouTube. Again, due to allegations of view count inflation, YouTube removed and relocated the video to a different URL, disclosing on the original page that the video had been removed for violating its Terms of Service. Darnaa sued for breach of the covenant of good faith and fair dealing, interference with prospective economic advantage and defamation. In an email submitted with the complaint, Darnaa's agent explained that she had launched several large campaigns (each costing $250,000 to $300,000) to promote the video and that the original link was already embedded in thousands of websites and blogs. Darnaa sought damages as well as an injunction to prevent YouTube from removing the video or changing its URL.

The court dismissed all of Darnaa's claims because YouTube's Terms of Service require lawsuits to be filed within one year and Darnaa had filed her case too late. In its discussion, however, the court made several interesting points. In considering whether YouTube's Terms of Service were unconscionable, the court held that, although the terms are by nature a "contract of adhesion," the level of procedural unconscionability was slight, since the plaintiff could have publicized her videos on a different website. Further, in ruling that the terms were not substantively unconscionable, the court pointed out that "[b]ecause YouTube offers its hosting services free of charge, it is reasonable for YouTube to retain broad discretion over [its] services."

Although the court ultimately dismissed Darnaa's claims based on the failure to timely file the suit, the decision was not a complete victory for YouTube. The court granted leave to amend to give Darnaa the opportunity to plead facts showing that she was entitled to equitable tolling of the contractual limitations period. Therefore, the court went on to consider whether Darnaa's allegations were sufficient to state a claim. Among other things, the court held that YouTube's Terms of Service were ambiguous regarding the platform's rights to remove and relocate user videos in its sole discretion. Thus, the court further held that if Darnaa were able to amend the complaint to avoid the consequences of the failure to timely file, then the complaint would be sufficient to state a claim for breach of the contractual covenant of good faith and fair dealing.

By contrast, the court found no such ambiguity in Song Fi v. Google Inc., a case with facts similar to those in Darnaa. In Song Fi, the plaintiff asserted claims for, among other things, breach of contract and breach of the implied covenant of good faith and fair dealing. YouTube raised a defense under the Communications Decency Act (CDA) Section 230(c)(2)(A) which states that no provider of an interactive computer service is liable for removing content that it considers to be obscene, violent, harassing or "otherwise objectionable."

The Song Fi court, interpreting this provision narrowly, found that although videos with inflated view counts could be a problem for YouTube, they are not "otherwise objectionable" within the meaning of Section 230(c)(2)(A), and thus YouTube did not have immunity under that provision. Specifically, the court concluded that, in light of the CDA's history and purpose, the phrase "otherwise objectionable" relates to "potentially offensive material, not simply any materials undesirable to a content provider or user." Further, the requirement that the service provider subjectively finds the blocked or screened material objectionable "does not mean anything or everything YouTube finds subjectively objectionable is within the scope of Section 230(c)." Therefore, the court held that videos with inflated view counts fell outside the statutory safe harbor granted by Section 230(c)(2).

Despite finding Section 230(c)(2) inapplicable, the court ultimately dismissed all of Song Fi's claims. Notably, the court dismissed the contract-based claims with prejudice, holding that, although YouTube's Terms of Service were "inartfully drafted," they "unambiguously" reserved to the right for YouTube to remove content in its sole discretion and to discontinue any aspect of its service without liability. Therefore, the court held, the Terms of Service "unambiguously foreclose[d]" Song Fi's claims for breach of contract and breach of the implied covenant of good faith and fair dealing.

Facebook had more luck than did Google in asserting a CDA Section 230 defense in Sikhs For Justice "SFJ", Inc. v. Facebook, Inc., a case brought by a human rights group advocating for Sikh independence in the Indian state of Punjab. Sikhs for Justice (SFJ) alleged that Facebook had blocked its page in India at the behest of the Indian government. SFJ sued in the Northern District of California, asserting several causes of action including race discrimination, and sought damages and injunctive relief.

The Sikhs for Justice court ruled in favor of Facebook, citing CDA Section 230(c)(1), which states that "no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Based on this statutory language, Section 230(c)(1) has been interpreted to provide a broad immunity for website operators against liability arising from user generated content. In dismissing the suit, the Sikhs for Justice court explained that the content at issue was provided by SFJ, not by Facebook, and that Facebook's refusal to publish the SFJ page in India was "clearly publisher conduct" that is immunized by Section 230(c)(1).

Notably, the court did not mention the Section 230(c)(2) safe harbor for blocking user content, which YouTube had asserted in SongFi as discussed above. According to some commentators, the Sikhs for Justice court's failure to discuss Section 230(c)(2) "highlights its weakness as a safe harbor."

In another case against Facebook, Young v. Facebook, Inc., the plaintiff, Karen Beth Young, found herself suddenly banned from Facebook after sending friend requests to strangers. She sued for breach of the implied covenant of good faith and fair dealing as well as several other claims. In contrast to some of the cases discussed above, the Young court found that "it is at least conceivable that arbitrary or bad faith termination of user accounts ... with no explanation at all could implicate the implied covenant of good faith and fair dealing," particularly since Facebook had provided in its Statement of Rights and Responsibilities that users' accounts should not be terminated for reasons other than those described in the Statement. Nonetheless, the court dismissed Young's suit because her complaint did not sufficiently allege that the account termination was undertaken in bad faith or violated Facebook's contractual obligations.

The cases above illustrate how difficult it is for social media users to object to deletion or suspension of accounts or to removal or relocation of content based on a platform's contractual obligations under the applicable terms of service. Users have met with similar obstacles in asserting a property right in social media content.

For example, Mattocks v. Black Entertainment Television LLC (which we have discussed previously) involved a dispute between BET and Stacey Mattocks, whom BET had hired to help manage the unofficial Facebook fan page for one of its shows. When Mattocks restricted BET's access to the fan page, BET asked Facebook to "migrate" the fans to another official page that BET had created and Facebook granted the request. Mattocks sued BET for conversion of her business interest in the Facebook fan page. The court, holding that Mattocks failed to establish that she owned a property interest in the page's likes, granted BET's motion for summary judgment. "If anyone can be deemed to own the 'likes' on a Facebook page," the court stated, "it is the individual users responsible for them." While the Mattocks case did not directly target the social media platform itself, it does demonstrate how difficult it can be for a plaintiff to challenge social media platforms' decisions to remove or relocate content based on purported ownership of that content.

Safeguarding Your Social Media Currency

Ultimately, the cases discussed above show that social media platforms have significant control over what is (or isn't) published on their websites, regardless of the amount of time and effort that users have spent building up their individual pages and profiles. With all of this in mind, what can individuals and companies do to protect their social media currency? How can you help ensure that your hard-earned fans, likes, comments and views do not suddenly disappear?

A good tip is to read the applicable terms of service carefully to understand the platform's rules and the reasons for which a platform may delete or suspend accounts or remove or relocate content. Make sure to comply with the platform's rules, including those regarding contests, collection and use of user information and content guidelines. Users should err on the side of caution, and avoid posting anything that could be deemed offensive or obscene or that might infringe upon other parties' intellectual property rights. And it goes without saying that users should avoid fraudulent practices, such as artificially driving up view counts or posting fake comments.

Most of all, businesses and individuals should keep in mind that social media platforms have broad discretion when it comes to decisions about what to publish and where. As such, consider spreading your company's social media marketing efforts across a number of different platforms to minimize the impact of sudden content removals or relocations on any one platform. At the end of the day, every social media account—even those with millions of likes or views—is controlled not by the user that created the account but by the platform that hosts it.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Aaron P. Rubin
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions