Can the FTC Protect Us From Fake News?

In September 2016, the Second Circuit handed down its decision in FTC v. LeadClick Media, LLC, holding the operator of an affiliate-marketing network liable for the fake news published by its affiliates. This case could serve as a tool in combatting fake news stories that have plagued social media and caused real-world problems (like Pizzagate) in recent years. While this Second Circuit decision is unlikely to solve the problem of fake news stories on social media, it is a step in that direction. The Case In the case, a generator of fake news was denied protection of the Communications Decency Act. The CDA protects Internet service providers from being held liable as publishers of material posted on their sites by third parties. Until 2011, LeadClick operated an affiliate-marketing network to provide advertising to online businesses. The affiliates advertised in various ways, including by creating advertising websites. In August 2010, LeanSpa, a company that sold purported weight-loss and colon-cleanse products over the Internet, hired LeadClick to provide advertising through its affiliate network. Some of these affiliates created what the court called “fake news sites,” which looked like genuine news sites with reporters discussing, what they claimed to be, their own experiences and comments from satisfied users. However, all of the content on these websites was fabricated. The court held that LeadClick was not entitled to immunity under CDA §230(c)(1) because CDA had helped develop the deceptive content and was not merely a publisher of third party content. Without CDA immunity, LeadClick could be held liable for its affiliates’ false and deceptive advertising practices. Our Salvation? Hardly. By denying LeadClick CDA immunity, the...

Google Won’t Let Us Forget You

In 2014 the European Union’s highest court held that EU citizens had the “right to be forgotten,” or in other words, the right to request that a search engine remove from its results materials that are “inaccurate, inadequate, irrelevant or excessive.” Immediately after the ruling, Google began delisting results across all of its European versions of Google (google.fr, google.co.uk, etc.), while leaving the results on other versions of Google unaltered. In June 2015, France’s privacy regulator, the Commission Nationale de l’Informatique et des Libertés, or CNIL, ordered Google to apply the right to be forgotten on all versions of the search engine throughout the world. Instead, Google used location information to restrict search results for anyone searching within the European Union, regardless of the version they used. But the CNIL was unsatisfied and fined the search engine €100,000 for not complying with the order. Google is appealing the order and the fine to France’s highest administrative court, the Conseil d’État. Is Google required to comply with this order? What happens if it refuses? There have been numerous cases of countries attempting to impose their national standards on internet companies whose goods and services are offered throughout the world. In one case, Equustek Solutions Inc. v. Jack, a Canadian court ordered Google to remove certain web pages from its search results on searches performed both within Canada and throughout the world. On its first appeal, the court upheld the worldwide order, but that case is currently up on appeal to the Canadian Supreme Court. As such, precedent does little to predict the outcome of Google’s fight against France, but the...