This morning, the Supreme Court granted certiorari in Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021) on the following question presented: “Does section 230(c)(1) immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?” This is the first opportunity the Court has taken to interpret 47 U.S.C. § 230 (“Section 230”) since the law was enacted in 1996.
U.S. AI, IoT, CAV, and Data Privacy Legislative and Regulatory Update – Second Quarter 2022
This quarterly update summarizes key federal legislative and regulatory developments in the second quarter of 2022 related to artificial intelligence (“AI”), the Internet of Things, connected and automated vehicles (“CAVs”), and data privacy, and highlights a few particularly notable developments in U.S. state legislatures. To summarize, in the second quarter of 2022, Congress and the Administration focused on addressing algorithmic bias and other AI-related risks and introduced a bipartisan federal privacy bill.
NTIA Seeks Comment on Competition in the Mobile App Marketplace
On Friday, April 22, 2022, the National Telecommunications and Information Administration (NTIA), which is part of the Department of Commerce, issued a request for comment (RFC) on the state of competition in the mobile app marketplace. According to the RFC, the record developed will be used to inform the Biden Administration’s competition agenda, including a report on competition in the mobile app ecosystem. Comments are due on May 23, 2022.
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Google Knowledge Panels Challenged In Germany
On 17 December 2020, the media authority of the German federal state of Schleswig-Holstein initiated legal proceedings against Google Ireland Ltd. under Germany’s new Interstate Media Treaty (Medienstaatsvertrag – “MStV”, downloadable here, German only). The authority (Landesmedienanstalt) is investigating whether Google’s treatment of information from a “National Health Portal” offered by the German Federal Ministry of Health (“Health Ministry”) constitutes a violation of the MStV.
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FCC Announces Section 230 Rulemaking
FCC Chairman Pai announced today that the FCC will move forward with a rulemaking to clarify the meaning of Section 230 of the Communications Decency Act (CDA). To date, Section 230 generally has been interpreted to mean that social media companies, ISPs, and other “online intermediaries” have not been subject to liability for their users’ actions.
On July 27, the Trump Administration—acting through the National Telecommunications and Information Administration—submitted a Petition for Rulemaking on Section 230, and Chairman Pai announced on August 3 that the FCC would seek public comment on the petition. That petition asked the FCC to adopt rules to “clarify” the circumstances under which the liability shield of Section 230 applies. Citing the FCC General Counsel’s reported position that the Commission has the legal authority to interpret Section 230, Chairman Pai today stated that a forthcoming agency rulemaking will strive to “clarify its meaning.”
FCC Seeks Comment on Section 230 Petition
FCC Chairman Pai announced today that the FCC would seek public comment on the Administration’s July 27 Petition for Rulemaking on Section 230 of the Communications Decency Act (CDA)—the law that to date has meant that social media companies, ISPs, and other “online intermediaries” have not been subject to liability for their users’ actions. Comments will be due on Wednesday, September 2 and reply comments will be due on Thursday, September 17.
While there is much that is novel about the Petition itself, the FCC’s decision to seek comment on it appears to follow standard operating procedures. At this point, there is no indication of whether the FCC will take more formal steps attempting to adopt any of the rules proposed by the Administration.
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CJEU rules that Facebook and website operators are joint controllers if the website embeds Facebook’s “Like” button
On July 29, 2019, the Court of Justice of the European Union (“CJEU”) handed down its judgment in the Fashion ID case (Case C-40/17). The CJEU found that when a website operator embeds Facebook’s “Like” button on its website, Facebook and the website operator become joint controllers. The case clarifies the relationship between website operators and social networking sites whose plug-ins are embedded into websites for user tracking and online marketing purposes. The ruling is expected to influence the contractual terms that companies will need to have in place when embedding such social plug-ins to their websites, and may also have ramifications for adtech practices more generally.
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UK Consumer Protection Regulator (“CMA”) Extracts Undertakings from Social Media Influencers to Increase Transparency in Sponsored Posts
On January 23, 2019, the UK’s Competition and Markets Authority (“CMA”) announced that it had secured undertakings from 16 social media influencers, including well-known names such as Ellie Goulding, Rosie Huntington-Whiteley and Rita Ora, that commit each influencer to increased transparency when they promote or endorse brands or services on social media on behalf of businesses.
The CMA stressed that applicable UK consumer law requires that it be made clear when posts are sponsored (i.e., paid or incentivized). The CMA also disclosed that it has sent warning letters to other (unidentified) influencers and celebrities, and indicated it will continue to consider the role of social media platforms in this issue.
This enforcement action, together with the CMA’s recent success in court against secondary ticketing website Viagogo, and more recent threat to take Viagogo to court again, is evidence that consumer protection enforcement remains high on the CMA’s agenda.
Below, we summarise key elements of the undertakings in more detail, and also refer to further available UK regulatory guidance on how to advertise on social media.
The UK Government Seeks Views on the Regulation of Digital Markets for a Post-Brexit Great Britain
The UK Government’s Department for Business, Energy and Industrial Strategy has just released a 75-page Green Paper on Modernising Consumer Markets, setting out the Government’s main priorities for the digital economy in a post-Brexit Britain. The Green Paper reflects on the current state of consumer markets and regulation, and lays down the key challenges and opportunities which will be the focus of the UK’s regulatory and competitive framework going forward. This poses consultation questions to stakeholders on hot topics in digital markets, including questions on: the adequacy of the current competition rules and privacy protections, supporting consumer-friendly innovation, use of and access to big data, whether personalised pricing should be regulated, sufficiently protecting customers without stifling innovation, and alternative dispute resolution solutions.
It also includes various proposals to ensure new technology and data are used to benefit customers, strengthen national enforcement of consumer rights, modernise the approach taken by regulators, and improve consumers’ access to alternative dispute resolution services. In this Covington blog post, we explore some of the key messages and questions posed by the Green Paper.
UK House of Lords Inquiry on ‘The Regulation of the Internet’
The UK House of Lords Select Committee on Communications has recently opened a Public Consultation on ‘The Regulation of the Internet’, with submissions being accepted until Friday 11 May. The Call for Evidence can be accessed here.
The nine questions posed are relatively broad in scope, including: whether there is a need to introduce