Legal Roundup: Tech Companies Moderating Content, 401(k) Suits Likely to Rise and More

The latest court decisions impacting risk management and the insurance industry.
By: | March 4, 2020

Tech Companies Can Moderate Content Without Running Afoul of First Amendment 

The Case: The debate over content moderation on major technology platforms was the center of a recent case pitting YouTube parent company Google against Prager University.

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PragerU is a nonprofit founded by talk-radio host Dennis Prager that produced YouTube videos explaining conservative ideology.

“In 2017, PragerU sued YouTube and its parent, Alphabet Inc.’s Google, after YouTube flagged dozens of its videos as ‘inappropriate,’ stripping the clips of advertising and making them less accessible to students, library users and children,” according to the Wall Street Journal.

It goes on to say that PragerU “argued that YouTube has essentially turned itself into the operator of a giant public square, a government-like role it says warrants more legal scrutiny of the platform’s content moderation.” YouTube, meanwhile, argued that its moderation of the videos was not politically biased.

Scorecard: In a unanimous decision, the Ninth U.S. Circuit Court of Appeals in San Francisco ruled that privately operated internet platforms can moderate the content without running afoul of the First Amendment.

“Despite YouTube’s ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment,” wrote Circuit Judge M. Margaret McKeown, according to the Wall Street Journal.

Takeaway: The ruling makes it clear that private tech platforms are not public forums — and are subject to moderation by owners. Still, moderation becomes a tricky business considering that only a handful of companies own and police places where billions of people congregate digitally.

More 401(k) Suits Likely After Supreme Court Ruling on Intel

The Case: After working at Intel from 2010 to 2012, Christopher Sulyma sued the company for allegedly breaching its fiduciary duties by investing a portion of 401(k) savings into higher-fee investments.

Intel claimed the case should be dismissed because it delivered disclosures to Sulyma and the case was brought after the three-year statute of limitations had run out.

Scorecard: The Supreme Court ruled unanimously in favor of Sulyma, sending the case back to a lower court.  

Takeaway: The case is likely to pave the way for more lawsuits regarding retirement plans.

The Wall Street Journal reports that simply delivering disclosures is not enough to start the three-year window. Employee must actually read the information and understand it first.

The newspaper also said the decision “may encourage companies to outsource their 401(k) plans by joining so-called multiple-employer plans,” and “may hasten the adoption of electronic delivery of disclosures” which could show categorically that employees actually opened certain sections of the disclosures.

Time Warner Cable Settles Suit Over Internet for $18.8M

The Case: More than 170,000 California residents claimed they paid Time Warner Cable for high-speed internet but the company did not deliver.

The Associated Press reports: “Their lawsuit alleged that beginning in 2013, Time Warner Cable used misleading advertising to lure customers into paying for higher-end internet service.”

Some of those practices allegedly included issuing outdated modems or promising service the company wasn’t tech savvy enough to properly deliver.

Scorecard: Time Warner Cable will pay $18.8 million to settle the lawsuit. Customers will get credits of $90 to $180 depending on their circumstances.

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In addition, Time Warner Cable will offer all California internet customers a choice of two free services. Those who also subscribe to cable TV will be offered three free months of Showtime unless they already subscribe to the channel. Internet-only customers will be offered one free month of an entertainment streaming package called Spectrum Choice.”

Takeaway: Internet speeds are difficult for the layman customer to measure and could go unnoticed.

In New York, however, the fight over internet speeds led to a similar settlement. Charter Communications (which bought Time Warner Cable in 2016) settled a 2018 lawsuit with the New York state attorney general for $174.2 million, the AP reported.

“It included $62.5 million in refunds to some 700,000 customers. That lawsuit alleged the company delivered internet speeds that were up to 80 percent slower than advertised.” &

Jared Shelly is a journalist based in Philadelphia. He can be reached at [email protected]

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