In early March 2022, a coalition of state attorneys general launched an investigation of TikTok to determine whether the social media platform, which is popular among young Americans, causes long-term harm to them. Initiated in the Massachusetts attorney general’s office and led by Massachusetts Attorney General Maura Healey (D), the probe also seeks to examine whether TikTok’s practices violate state consumer protection laws.

According to an article in The Washington Post, “The attorneys general plan to focus on the methods TikTok uses to lure young users to spend extra time on the platform and open the app frequently.”

Central to the claims against ByteDance, the Chinese company that owns TikTok, is how TikTok’s powerful algorithms can suggest content that is not appropriate for young people and teens. In September 2021, The Wall Street Journal published its own investigation that revealed how TikTok serves up adult topics to minors.

Attorneys general from California, Florida, Kentucky, Nebraska, New Jersey, Tennessee, and Vermont also are working on other ongoing investigations.

Additional coverage of this topic includes:

The EU draws a hard line in the sand with the Digital Markets Act

In late March 2022, the new legislation was passed that has the potential to reign in the power of some of the world’s most powerful technology companies.

The Digital Markets Act comes from the European Union, one of the strongest and strictest government coalitions to regulate big tech’s reach and influence on society, governments, corporations, and populations. Long known for its stalwart stance against that reach, the European Union has led the way with other landmark regulations, including the 2018 General Data Protection Regulation (GDPR), a privacy law that restricts the online collection and sharing of personal data. That regulation made Europe the “world’s leading tech watchdog” according to an article in The New York Times.

The Center for Strategic and International Studies offers this primer on the Digital Markets Act, while Wired provides its own unique take on the legislation and its potential primary impact on U.S.-based companies.

Our European colleagues will be reporting on this landmark legislation shortly, so stay tuned here at Socially Aware for updates.

Now on remand, district court denies Meta’s motion to dismiss in right of publicity case

On April 22, 2022, the district court presiding over Hepp v. Meta Platforms (FKA Hepp v. Facebook) denied Meta’s Motion to Dismiss the Second Amended Complaint. As previously reported by Socially Aware, the plaintiff Karen Hepp alleged that Meta violated her right of publicity under Pennsylvania law (both common law and statutory) when a third-party advertiser used a photo of the plaintiff, a news anchor in Philadelphia, in an ad soliciting users to “meet and chat with single women.”

Consistent with the Ninth Circuit’s holding in Perfect 10 v. CCBill, Meta originally argued that Section 230 of the U.S. Communications Decency Act preempts state law right of publicity claims. While the district court agreed with Meta, finding social media platforms immune under Section 230 for such right of publicity violations, the Third Circuit reversed, holding that Section 230(e)(2) applies to both federal and state intellectual property claims. (Section 230(e)(2) states “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.”)

On remand, Meta argued the plaintiff could not succeed on the merits because: (1) Meta did not use her image for a “commercial purpose” or have “actual knowledge” of the unauthorized use, as required under Pennsylvania’s right of publicity statute; (2) her common law claim has been abrogated and subsumed by the comprehensive statutory scheme created when the Pennsylvania legislature enacted the statutory right of publicity; and (3) if her common law claim does still exist, she failed to plead facts sufficient to establish a claim.

After considering clause (1), the district court found that the argument was more appropriate for summary judgment. The court was unwilling to resolve the issue in clause (2) since discovery would already commence based on the plaintiff’s statutory claim. Finally, regarding clause (3), the court found that the plaintiff had set forth sufficient facts to survive a motion to dismiss.