You’re suing someone for defamation, but you only know your detractor’s screen-name. So, the burning question is: Can you serve notice online? In a word, yes. That said, before a court will issue permission to serve notice online, you’ll have to prove you attempted various other methods before resorting to the use of social media or other digital service options.
Precedence For Serving Notice Online
Earlier this year, a US court agreed to let the Federal Trade Commission serve a pair of potential scam artists in India. Specifically, the two gentlemen were served notice via email and Facebook.
The road to this outcome, however, was a long one.
Before attorneys for the FTC could secure the online service approval, they exhausted every other avenue. It took months.
In addition to searching high and low for ways to serve the suspects in person or via traditional postal services, plaintiffs in the case had to provide significant evidence that the proposed email and Facebook accounts were active and valid. After all, serving notice to the wrong digital account could be legally disastrous.
Data the plaintiffs provided to the courts in order to get the OK to serve notice online:
The plaintiffs had the government names of their opponents;
The names the plaintiffs had were the same used in the proposed email address and Facebook accounts;
The uspects’ Facebook profiles made mention of the company being investigated by the FTC;
What If You Only Have The Person’s Screen Name? Can You Still Serve Notice Online?
The jury and judge are still out on whether or not it’s acceptable to serve an anonymous defendant via electronic means – specifically, via email or a social media account. One of the reasons the courts granted the FTC approval is because significant evidence existed that the people being sought were the people behind the proposed accounts for service. If the defendant has keen obfuscatory skills, though, it’s very tough to provide the level of evidence needed to secure an online service notice.
Is It Possible To Uncover The Name Of An Anonymous Defamer?
Before trying to serve notice online, it’s best to attempt to uncover the anonymous defamer via a court order. While convincing courts to grant an order or injunction to reveal the name of an individual posting online can be difficult, it can be done.
Avoid A Class-Action Lawsuit By Not Crossing The Puffery Line
Originally Posted: May 24th, 2013
What happens when you cross the advertising “puffery” line? Skechers shoe company recently found out. They had to fork over a cool $40 million thanks to a class-action lawsuit over some claims made in their ads.
A $40 million class-action settlement against Skechers shoes should serve as a cautionary tale to all online marketers. The warning: Don’t Make Incredible Claims if You Don’t Have the Proof! Not only could ignoring this warning result in a scuffle with the FTC, but customers – with visions of greenbacks dancing in their heads — could entangle you in a costly false advertising lawsuit.
Judge Thomas B. Russell, of the Kentucky Federal Court, affirmed a false advertising class-action against Skechers. A passel of lawyers, two primary plaintiffs and about 520,000 claimants cumulatively earned $40M – all because Skechers’ ads arguably crossed the truthiness line. In an effort to get people to plunk down cash for their sneakers, Skechers promised consumers their shoes would boost weight loss and sculpt stronger muscles. After some back and forth, Skechers denied allegations but settled to avoid costly, protracted litigation.
Be sure not to cross the Puffery line
We live in an advertising panopticon. At every turn, we’re bombarded with pleas to try this, buy that, and visit there. So, in order to stick out, advertisers strive to speak to our vulnerabilities and joys, in the hopes an emotional connection with a products’ promise will compel spending.
But you can’t say anything you want in advertisements. You can’t lie about your product or your competitors’ products, and you can’t use language that blatantly misleads the public. But you can exaggerate a bit, and, say, call the pizza made at your pizzeria, “The World’s Greatest Pizza!” This is called puffery.
To put it simply, puffery is effusive, unquantifiable, self-serving flattery. The jerk in the office who always brags about his latest gadget or girlfriend? He uses puffery. Legally speaking, the line between puffery and false advertising is thin, It’s also dependent on what type of product you marketing. For example, DSHEA rules govern dietary supplements, whereas people in the data broker business should make sure they’re familiar with the Fair Credit Reporting Act and its effect on allowable assertions in marketing material.
To put it simply, puffery is effusive, unquantifiable, self-serving flattery.
Where The Skechers Class-Action Lawsuit Money Goes
How did the $40 million award get divided? The lawyers who brought the case split $5 million; the two lead plaintiffs walked away with $2,500 and the approximately 520,000 eligible claimants are entitled to refunds for the following products:
Shape-ups – $80
Resistance Runners – $84
Podded sole shoes – $54
Tone Ups – $40
If any of the claimant money is left over, the FTC gets the remaining funds.
Laws Online Marketers Should Review To Ensure Compliance
If you want to make sure your online advertising efforts are compliant, review the Dot Com Disclosures. It’s the Federal Trade Commission’s Internet advertising bible. The document explains in detail what you can and cannot do when advertising online or via mobile devices and social media. Reading the Dot Com Disclosures – cover to cover – is essential for all online marketers. It covers questions like:
How do advertisements need to be labeled?
What types of ads need disclosures and what do those disclosures have to say?
How must advertisements on social media sites, like Twitter and Facebook, be marked?
Is it possible to hide disclosures?
Will using lots of legalese in my advertising disclosures help me or hurt me?
If you advertise online and need a marketing compliance lawyer, get in touch. Kelly Warner is a full-service law firm with a dedicated digital advertising legal team. If you are ready to talk, you can either give us a ring at 1-866-570-8585 or find us on skype at aaronklaw. If email is your thing, shoot us a message at email@example.com or use this form. Talk to you soon.
Alert: FTC Sniffing Around Data Brokers
Originally Posted: May 16th, 2013
This year, the nation’s consumer watchdogs are on the lookout for unscrupulous data brokers. Specifically, the FTC is concerned about (a) adherence to privacy and due diligence standards outlined in the Fair Credit Reporting Act, and (b) the commodification of inaccurate personal information and its effect on consumers.
What Are Data Brokers?
Data brokering is a booming business. We’re talking multi-billion booming. Basically, data brokers collect information about you, me and everyone we know. Then they sell the juicy data to product marketers, potential employers, insurance agencies, credit card companies and anyone else with a need for human behavioral data.
The Federal Trade Commission seems to be concerned with operations that market “quick and easy background checks.” For example:
Nanny background checkers;
Legal background checkers;
Companies that sell marketing data to credit card companies to facilitate sending out pre-approved cards; and
Rental history background checkers.
The FTC’s Undercover Op Against Data Brokers
Operation data brokers began when FTC staffers slipped into super-spy mode and posed as employers and creditors in search of information. The undercover FTC agents probed 45 companies that offered “quick and easy” background checks. All the targeted operations maintained websites and toll-free numbers.
Of the 45 companies, 10 received letters from the FTC urging executives to review FCRA statutes, consider the provisions in relation to their business operations, and implement appropriate changes if necessary. In other words, “hey data broker, there’s a good chance you’re not following FCRA laws, shape up or prepare for a costly FTC fine.”
The FTC is giving these 10 companies the chance to shape up before releasing investigative hounds, with the ability to doll out costly sanctions. When questioned by the media, FTC spokesperson Laura Berger was sure to exude a non-accusatory tone. Specifically, she implied the 10 companies’ oversight may simply be a simple HR matter that could be easily fixed.
FCRA For Data Brokers
The Fair Credit Reporting Act outlines a series of checks and balances that consumer reporting agencies must follow. The two main FCRA provisions:
Information brokers must notify the consumer, if he or she is the subject of a search.
In certain situations, the background checker must verify the requesting entity is authorized and requesting data for legitimate purposes.
But here’s the big FCRA loophole: if you want to establish a background check business, to avoid being fined, you can sometimes use conspicuous disclaimers that reveal your information is for “entertainment or marketing purposes only” and acknowledge that “some or all” of the information may be “old or inaccurate or both.” That said, if you distribute misinformation, and the person affected finds out, they can probably file a lawsuit against you and possible win – but it may not be considered a FCRA violation.
According to Laura Berger, the commission’s main concern is that consumers have the ability to “review, challenge and correct” inaccurate information distributed by data brokers.
This latest FTC effort is not the first time the agency has focused sights on data brokers. Just last year, the FTC ordered Acxiom and 8 other information merchants to disclose the type of data they collect and how it’s used – an uncomfortable proposition for data brokers with trade secrets to protect.
What Do I Do: International Stalker Is Defamaing Me Online & Won’t Stop!
Originally Posted: May 8th, 2013
“Fatal Attraction” dramatized the pre-Internet perils of an obsessed ex-lover — and a recent case out of Vancouver crystallizes the dangers of a Digital Age stalker. A Canadian teacher is embroiled in a scary international stalking situation. His lover-turned-stalker is hiding from authorities in real life, but is ever-present online — where she perpetually bad-mouths her former beau. The worst part: all the trash talk is costing him a job!
Paradise Found Leads To International Stalking Situation
In 2010, Canadian Lee David Clayworth was teaching in Malaysia. Back then, Clayworth ostensibly lived an exciting life. After all, teaching in the tropical paradise of Malaysia certainly seemed like the idyllic situation for an adventurous twenty-something. Heck, he even had a girlfriend in his adopted new country.
But since impermanence is a universal fundamental, Clayworth’s romantic bliss didn’t last forever, and after the pair parted ways, his lady fair, Lee Ching Yan, stole his laptop, hacked into his email and started a multi-year-long digital onslaught against Clayworth. Yan assailed his contacts with salacious, untrue stories of pedophilia and other crimes; she posted nude pictures of him online and littered dozens of social media sites with the vitriol of a scorned lover.
Malaysian Court Agrees With Lee David, But Nobody Can Find Lee Ching
Lee David Clayworth’s online reputation took an international beating, so he sued Lee Ching Yan in Malaysian court. Clayworth won and the court ordered Yan to pay $66,000 in damages. But sometimes even a judge’s ruling won’t thwart a revengeful online stalker. Despite the ruling, Yan kept posting defamatory material with a vengeance. She even skipped town to avoid a contempt of court jail sentence – but kept the online hits coming.
U.S. Search Engines Ignore International Stalking Court Order
In addition to the defamation damages and sanctions, the Malaysian court also ordered Google, Yahoo and Bing to block Clayworth’s name in their databases. None of the search engines, however, are paying attention to the order. Google was the only company to respond to the request, saying only that “users who want content removed from the Internet should contact the webmaster of the page directly.” Google clarified their stance by explaining that they “do not remove content from [their] search results, except in very limited cases such as illegal content and violations of…webmaster guidelines.”
Clayworth has had mixed results with getting material removed from various sites. More than that, Lee Ching is one persistent person – every time Lee David convinces a site to take down a statement, she just posts it somewhere else.
For International Stalking Situations, Get A U.S. Court Order Instead
One of the reasons Clayworth is having a hard time getting Google and the other search engines to listen to him is because a Malaysian court order is not going to make U.S.-based megacorps to jump through hoops – but a U.S. court order might do the trick. Kelly Warner has helped many clients obtain effective court orders that compel Google and other search engines to de-index certain information. We’ve also had great success uncovering anonymous defamers. If you need help getting defamatory material removed from the Internet, get in touch with Kelly Warner law today.
Serving An International Defamation Subpoena
Originally Posted: May 4th, 2013
International Defamation Subpoenas & Cross-Border Due Process
What happens when a person who has defamed you lives in another country? Can you still sue him or her for libel or slander? How can a subpoena be issued abroad? Will the person who harmed you be subject to an American court’s judgment if he or she is not a U.S. citizen? We’ll go over all these questions – and more – below.
Can You Sue A Person Who Lives In Another Country For Slander or Libel?
Yes. You can sue another person in another country for slander or libel. The trick is picking the proper jurisdiction to file your claim. In many cases, filing abroad is the better option for plaintiffs, because the United States has the most defendant-friendly defamation laws in the world. If filing in a foreign jurisdiction, you can use a U.S.- based attorney to handle the case. That said, you will need foreign counsel as well, unless the U.S. attorney is authorized to practice law in the defendant’s country. Ultimately, it’s best to find one who has experience with cross-border defamation litigation.
That said, in order to file a defamation lawsuit in another country, you must be able to prove some connection to the country. Were the defamatory statements published in the country? Did the material attract an unusual amount of attention in that country? In other words, you can’t just pick a super-plaintiff-friendly jurisdiction; the incident under review must have a suitable connection to the jurisdiction in which a case is filed.
If I Sue A Non-US Citizen In A U.S. Court, Will They Be Forced To Pay Up If I Win?
Depends. Some countries – like the United States – have laws protecting citizens from certain foreign judgments. For example, the SPEECH Act – passed in 2010 – protects U.S. citizens from having to pay damages in cases where the foreign ruling does not conform to First Amendment standards, the Constitution and state law in the prevailing jurisdiction. For example, if a person tries to domesticate a judgment in Arizona, the actions complained about must be defamatory in Arizona and not protected by Arizona’s Constitution, which also preserves the right to free speech.
That said, many countries – for example, Canada – don’t have laws like the SPEECH Act. As such, if a Canadian citizen is sued by a U.S. entity, they could be forced to pay damages awarded by a judgment, though it may still be subject to Canadian free speech constitutional protections, as well as public policy considerations, as many countries’ courts consider “public policy” objectives in determining whether to enforce a foreign judgment.
What If I Don’t Know The Identity Of A Defaming Non-US-Resident? Can I Still Sue For Slander or Libel?
Sometimes. The process of uncovering an anonymous online defamer involves U.S. courts, in addition to foreign courts and tribunals. In most cases, a name is needed before an international slander or libel lawsuit can proceed. In some cases, via a court order, it’s possible to uncover an anonymous defamer. This is called discovery. Note, though, that some countries may not recognize the American discovery process and therefore refuse to issue the usual “letters rogatory” to assist American courts in discovering the identity of a John Doe defendant. Your lawyer should look into the laws of the relevant foreign country or countries before commencing an action for defamation against an unknown party. If A Defamer Doesn’t Live In The United States, How Can Legal Process Be Served? Can It Be Done Through Social Media?
Various federal and state rules govern the specifics of valid service. Federally, procedures outlined in Fed. R. Civ. P.4(f) deal with service of process abroad. Or, in laymen’s speak, “how to serve a subpoena (or other legal document) on someone in a foreign country.” The law states that “unless federal law provides otherwise, an individual – other than a minor, an incompetent person, or a person whose waiver has been filed – may be served at a place not within any judicial district of the United States. […]In the event both countries aren’t signatories of a shared international agreement, or if the agreement doesn’t outline specific service process means, a method can be used that is ‘reasonably calculated’” to give notice by:
Using the foreign country’s laws for service.
Using a method the foreign country directs petitioner to use, via a rogatory (formal legal request).
Unless prohibited by a foreign country’s law:
Delivering directly to person.
“Any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.”
Any other means not prohibited by international agreement, as the court orders.
Recently, the FTC was able to serve several Indian citizens via Facebook. It was deemed acceptable because enough evidence existed that the people on Facebook were the people the FTC is after. Specifically, on their Facebook pages, the defendants identified themselves as employees of the company under investigation, and the emails used in the alleged scam are the same as the ones the suspects posted on Facebook.
Hague Convention Signatories
China & Hong Kong
If Two Countries Are Signatories of the Hague Convention, What Is The Process Of Serving Someone Abroad?
If two countries are both signatories of an international treaty or agreement, the rules of international due process outlined in said agreement must be followed. The most popular international agreement, which has a section on international litigation notification, is the Hague Convention.
The section entitled “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” outlines international process services. Sixteen articles detail the proper procedures for service of legal documents abroad. Most explain inter-state administrative procedures, in addition to language and administrative processes. Articles 10 and 11 address situations where the intended recipient of a subpoena or legal notice cannot be reached by traditional means.
Article 10 states that if the State of destination doesn’t have objections, the Convention will not interfere with:
Sending judicial documents via “postal channels” directly to a person abroad;
Qualified officials effecting service directly through judicial officers; and
The freedom of any person to effect service of judicial documents directly through judicial services.
Article 11 asserts that the convention will not get in the way of two States that want to set up an alternative agreement of document service.
So what does all that mean in non-legal speak? If the countries of the plaintiff and the defendant can agree on an acceptable means of service, then it is good enough in the eyes of the courts (provided that the courts accept that “service according to a treaty” or some similarly-worded statement is acceptable). What does that mean in today’s marketplace? In certain circumstances, legal notice can be served via social networking sites, like Facebook. So if information links you to your Facebook account, your Facebook messaging system can be considered an acceptable “postal channel” in the eyes of the law, and therefore can be used to let you know you’re being sued.
The rules of international service of process are nuanced. Special forms need to be used, and sent to specific offices, with specific cover letters, in a specific amount of time. Hire an attorney who knows the process. Otherwise, the statute of limitations could run out before your paperwork goes through the system. If you need a lawyer who has successfully dealt with international service process related to online defamation or intellectual property infringement, contact Kelly Warner Law.
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Aaron Kelly, a partner at Kelly / Warner Law, is an Internet lawyer who works with online businesses, ecommerce sellers, marketers, startups, developers, and designers.
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