Media Coverage
Source: World Trademark Review
Media Coverage
06.02.20
Recently, President Trump issued an executive order with the goal of making social media platforms liable as publishers for the content on their sites. While not centered on intellectual property, could efforts to change social media platforms’ liability be a game changer in efforts to bring bad actors on those platforms to justice?
Since 1996, Section 230 of the Communications Decency Act has protected platforms from liability for trademark-infringing content posted on their sites — leaving the poster liable for content that includes trademark infringement and the offering of counterfeits, among other issues, World Trademark Review reported.
As the order is mainly concerned with the censorship of political views not prohibited by platforms’ terms of service, Carolyn Toto, an Intellectual Property partner at Pillsbury in Los Angeles, does not expect there to be much change for the liability to monitor counterfeits or fakes.
“All of the major social media platforms have provisions in their terms that prohibit IP infringement,” Toto explained. “So long as a platform’s terms include taking such provisions, I think taking action to reasonably investigate and takedown infringing content would not qualify as the type of selective editorial conduct that the executive order is trying to eliminate immunity for.”
On the other hand, is there a risk that increased liability could harm a platform’s ability to fight counterfeits effectively? Toto considered a scenario where a user whose content is removed could argue that it was not done “in good faith, pretextual or inconsistent with the terms of service” but rather at the individual judgment of the platform. Alternatively, there could be complaints that some brands are given more favorable takedown help than others for political reasons. “However, I think these are unlikely scenarios,” she noted.
The order “is pushing for more clear-cut boundaries as to what a platform can get immunity from as a publisher since the ‘good faith’ standard is arguably ambiguous and one could see instances where immunity is being extended beyond the statute’s text and purpose,” Toto remarked.
“It is unlikely that, without legislative reform, an executive order could override the current statute and years of court decisions construing the scope of Communications Decency Act immunity,” Toto concluded.