meta – Attorney Evan Brown

December 3, 2024 Right of Publicity, Section 230, Social Media

Section 230 protected Meta from Huckabee cannabis lawsuit

Mike Huckabee, the former governor of Arkansas, sued Meta Platforms, Inc., the parent company of Facebook, for using his name and likeness without his permission in advertisements for CBD products. Huckabee argued that these ads falsely claimed he endorsed the products and made misleading statements about his personal health. He asked the court to hold Meta accountable under various legal theories, including violation of his publicity rights and privacy.

Plaintiff alleged that defendant approved and maintained advertisements that misappropriated plaintiff’s name, image, and likeness. Plaintiff further claimed that the ads placed plaintiff in a false light by attributing statements and endorsements to him that he never made. Additionally, plaintiff argued that defendant had been unjustly enriched by profiting from these misleading ads. Defendant, however, sought to dismiss the claims, relying on the Communications Decency Act at 47 U.S.C. 230, which grants immunity to platforms for third-party content.

The court granted Meta’s motion to dismiss. It determined that Section 230 shielded defendant from liability for the third-party content at issue. The court also noted that plaintiff’s allegations lacked the specificity needed to overcome the protections provided by Section 230. Furthermore, the court emphasized that federal law, such as Section 230, preempts conflicting state laws, such as Arkansas’s Frank Broyles Publicity Protection Act.

Three reasons why this case matters:

Defines Section 230 Protections: It reaffirms the broad immunity tech companies enjoy under Section 230, even in cases involving misuse of publicity rights.
Digital Rights and Privacy: The case highlights the tension between protecting individual rights and maintaining the free flow of online content.
Challenges for State Laws: It shows how federal law can preempt state-specific protections, leaving individuals with limited recourse.

Mike Huckabee v. Meta Platforms, Inc., 2024 WL 4817657 (D. Del. Nov. 18, 2024)

November 15, 2024 Antitrust, Social Media

Meta faces antitrust trial: FTC’s case against Instagram and WhatsApp acquisitions moves forward

The Federal Trade Commission (FTC) is taking Facebook’s parent company, Meta Platforms, to task over allegations that Meta’s acquisitions of Instagram in 2012 and WhatsApp in 2014 were anticompetitive. A recent ruling in the case allowed the FTC’s key claims to proceed, marking a significant step in the government’s effort to curtail what it alleges is Meta’s illegal monopoly over personal social networking (PSN) services. While some parts of the case were dismissed, the trial will focus on whether Meta’s past actions stifled competition and harmed consumers.

The FTC’s claims: Crushing competition through acquisitions

The FTC contended that Meta acted unlawfully to maintain its dominance in social networking by acquiring Instagram in 2012 and WhatsApp in 2014 to neutralize emerging competition. According to the agency, Instagram’s rapid rise as a mobile-first photo-sharing platform posed a direct threat to Meta’s efforts to establish a strong presence in the mobile space, where its applications were underperforming. WhatsApp, the FTC argued, was a leader in mobile messaging and had potential to expand into personal social networking, making it another significant competitive threat. The FTC alleged that Meta purchased these companies not to innovate but to eliminate rivals and consolidate its monopoly.

The case reached this stage after Meta filed a motion for summary judgment, seeking to have the case dismissed without trial. Meta argued that the FTC’s claims lacked sufficient evidence to support its allegations and that the acquisitions benefited consumers and competition. The court denied Meta’s motion in large part, finding that substantial factual disputes existed about whether the acquisitions were anticompetitive. The court determined that the FTC had presented enough evidence to show that Instagram and WhatsApp were either actual or nascent competitors when acquired.

The court’s analysis highlighted internal Meta documents and statements from CEO Mark Zuckerberg as particularly persuasive. These documents revealed that Instagram’s growth was a source of concern at Meta and that WhatsApp’s trajectory as a mobile messaging service could have positioned it as a future competitor. Based on this evidence, the court ruled that the FTC’s claims about the acquisitions merited a trial to determine whether they violated antitrust laws.

However, the court dismissed another FTC claim alleging that Meta unlawfully restricted third-party app developers’ access to its platform unless they agreed not to compete with Facebook’s core services. The court found that this specific allegation lacked sufficient evidence to proceed, narrowing the scope of the trial to focus on the acquisitions of Instagram and WhatsApp.

Meta’s defenses and their limitations

Meta of course pushed back against the FTC’s case, arguing that its acquisitions ultimately benefited consumers and competition. It claimed Instagram and WhatsApp have thrived under Meta’s ownership due to investments in infrastructure, innovation, and features that the platforms could not have achieved independently. Meta also contended that the FTC’s definition of the market for personal social networking services was too narrow, ignoring competition from platforms such as TikTok, YouTube, LinkedIn, and X.

However, the court rejected some of Meta’s defenses outright. For example, Meta was barred from arguing that its acquisition of WhatsApp was justified by the need to strengthen its position against Apple and Google. The court found this rationale irrelevant to the antitrust claims and insufficient as a defense. Meta’s arguments about broader market competition will be tested at trial, but the court found enough evidence to support the FTC’s narrower focus on personal social networking services.

Three Reasons Why This Case Matters:

Defining Market Boundaries: The case could set new standards for how courts define markets in the tech industry, particularly when dealing with overlapping functionalities of platforms such as social media and messaging apps.
Reining in Big Tech: A trial outcome in favor of the FTC could embolden regulators to pursue other tech giants and challenge long-standing business practices.
Consumer Protection: The case highlights the tension between innovation and market power, raising questions about whether tech consolidation truly benefits consumers or stifles competition.

Case Citation

Federal Trade Commission v. Meta Platforms, Inc., Slip Copy, 2024 WL 4772423 (D.D.C. Nov. 13, 2024).

March 5, 2024 Privacy

Website operator not liable under Wiretap Act for allowing Meta to intercept visitor communications

Plaintiffs asserted that defendant healthcare organization inadequately protected the personal and health information of visitors to defendant’s website. In particular, plaintiffs alleged that unauthorized third parties – including Meta – could intercept user interactions through the use of tracking technologies such as the Meta Pixel and Conversions API. According to plaintiffs, these tools collected sensitive health information and sent it to Meta. Despite defendant’s privacy policy claiming to protect user privacy and information, plaintiffs alleged that using defendant’s website caused plaintiffs to receive unsolicited advertisements on their Facebook accounts.

Plaintiffs sued, asserting a number of claims, including under the federal Electronic Communications Privacy Act (“ECPA”) and the California Invasion of Privacy Act (“CIPA”). Defendant moved to dismiss these claims. The court granted the motion.

To establish an ECPA claim, a plaintiff must demonstrate that defendant intentionally intercepted or attempted to intercept electronic communications using a device. CIPA similarly prohibits using electronic means to understand the contents of a communication without consent. Both laws have a “party exception” allowing a person who is a party to the communication to intercept it, provided the interception is not for a criminal or tortious purpose. In other words, there is an exception to the exception.

In this case, defendant argued it was a legitimate party to plaintiffs’ communications on a website, thus invoking the party exception. Plaintiffs countered that the exception should not apply due to defendant’s alleged tortious intent (making the information available to Facebook without disclosure to plaintiffs). But the court found that plaintiffs did not provide sufficient evidence that defendant’s actions were for an illegal or actionable purpose beyond the act of interception itself. Under the guidance of Pena v. GameStop, Inc., 2023 WL 3170047 (S.D. Cal. April 27, 2023), (a plaintiff must plead sufficient facts to support an inference that the offender intercepted the communication for the purpose of a tortious or criminal act that is independent of the intentional act of recording or interception itself), the court concluded there was no separate tortious conduct involved in the interception and dismissed the claims.

B.K. v. Eisenhower Medical Center, 2024 WL 878100 (February 29, 2024)

See also:

November 14, 2022 Blockchain, Trademarks

Meta prevails in trademark infringement litigation over its logo

In the case of Dfinity Foundation v. Meta Platforms, Inc., the court considered whether the new logo that Meta adopted after its 2021 rebranding infringed upon Dfinity’s trademark. In the infringement litigation that Dfinity brought over the issue, Meta moved to dismiss. The court granted the motion.

Dfinity operates the Internet Computer – a public blockchain network that seeks to provide developers and entrepreneurs with a public compute platform for building websites, enterprise systems and internet services within an open environment. Key to Dfinity’s efforts are “dapps” or decentralized applications. In 2021, the United States Patent and Trademark Office granted Dfinity a registration for the following mark: dfinity

When Meta rebranded in 2021, Mark Zuckerberg indicated, among other things, that the company would work with creators and developers in a decentralized fashion. In connection with the rebranding, Meta adopted and sought registration of this logo: meta logo

Dfinity sued in federal court in California alleging, among other things, trademark infringement. It alleged that the similarities between the marks, coupled with the related services and customer bases, will cause confusion because “consumers will mistakenly believe that Meta and its services … are connected with, sponsored by, affiliated with, or related to Dfinity and the Internet Computer.”

Meta moved to dismiss. In granting the motion to dismiss, the court found that confusion between Meta’s logo and Dfinity’s logo was unlikely as a matter of law.

Similarity of the marks

Employing the “sight, sound, and meaning” test, the court found the marks were dissimilar: Dfinity’s shape was a traditional infinity sign, with the lines crossing at the horizontal and vertical midpoint, rendered in a precise multicolor format that Dfinity instructs users of the logo not to alter. In the court’s view, the Meta logo looks different – while it includes two loops and bears some resemblance to an infinity sign, the lines cross above the vertical midpoint and the two loops are squished into vertical oblong shapes. Meta did not claim color as a feature of its mark.

Relatedness of services

On the question of whether the services provided under the two marks were similar, the court remained neutral. It noted that Dfinity has targeted developers interested in using blockchain to “build websites, enterprise systems and internet services within an open environment.” At the same time, “Meta targets everyone, including developers, some of whom presumably are interested in building their products within, or at least compatible with, such an ‘open environment.'” Meta argued that its products are antithetical to that vision, and there is no indication that it is interested in expanding into the realm occupied by Dfinity and the Internet Computer. But the court found that given Meta’s metamorphosis over the last few years, such a move is not implausible on the pleadings, particularly in light of Zuckerberg’s statement at the launch of the Meta brand.

Sophistication of users

The court then evaluated the types of users that would encounter the Dfinity and Meta logos, and whether, given their level of sophistication, confusion would be likely. The court found that because of the high level of sophistication, it is less likely one would be confused: “That these sophisticated people, immersed in the intricacies of the tech world, would be duped by a logo, particularly one that is not similar in key respects . . . borders on implausible.”

Actual confusion

Next the court considered whether purported instances of actual confusion weighed in favor of Dfinity. In this situation, Dfinity had provided six tweets that purported to show that users were confused. But the court disagreed. First, it noted that because the tweets were in reply to a Dfinity tweet, they did not express how the users would experience an encounter with the mark “organically”. And second, the court found that the content of the tweets indicated the users actually knew the difference between the two enterprises.

Marketing channels

Having found that the parties’ services were not “totally unrelated” at this stage, the court also found that the parties’ marketing channels were similar, but that this factor did not weigh as heavily as the others previously discussed.

Meta’s intent

Though Dfinity alleged “willful and wonton disregard of Dfinity’s established and superior rights” in its trademark, it did not provide evidence of that. And given that the court found the marks to be dissimilar, the court also found that Meta’s intent did not support a finding of likelihood of confusion.

Dfinity Foundation v. Meta Platforms, Inc., 2022 WL 16857036 (N.D. California, November 10, 2022)