Monthly Archives: April 2014

COPPA Update: Schools Must Ensure Consent Methods Are Up-To-Date

picture of school room to accompany post about COPPA school updates

The FTC released another Children’s Online Privacy Protection Act (COPPA) update. The new clarification deals with schools and schools alone. So, if you’re not a school administrator or parent of a school-aged child, then you can rest easy. Website operators should, however, be aware of the change for administrative purposes.

COPPA In 20 Seconds

Passed in 1998 and effective starting in 2000, the Children’s Online Privacy Protection Act is one of the few federal online privacy laws. It requires that websites obtain parental consent before collecting identifying information from minors aged 13 and younger.

You can read more about COPPA, here, here and here.

What happens if you’re caught violating COPPA regulations? Very hefty fines. Massive.

What Is The Latest COPPA Change?

Specifically, the FTC updated Section M of the Children’s Online Privacy Protection Act entitled ‘COPPA and Schools.’ The amendments clarified two main points.

  1. The responsibility for granting COPPA consent for students should be handled at the school administrative level, not by individual teachers.
  2. Schools should make available, on their respective websites, a list of software programs used at the school district. This way, parents can review the information and make any objections (for their children) directly to the administration.

In a memo announcing the COPPA update, the FTC reminded that although schools can consent on behalf of parents for school-related software, parents still have rights under the Family Educational Rights and Privacy Act.

Criticism Of The April 2014 School COPPA Updates

Executive Director of The App Association,  Morgan Reed, isn’t convinced that the latest COPPA update is going to help or change much. Reed explained:

“School administrators often are provided few details about how online service providers handle data collected on children, and recent court cases reveal that some companies use information from the classroom to target advertising to children. Parents … should get to decide whether their child’s data should be commoditized by schools to benefit advertisers.”

Contact A COPPA Lawyer Today

Do you have a website used by kids aged 13 and younger? Even if it was not your intent to attract a young audience, if children use your website, you MUST comply with COPPA standards. To speak with an attorney extremely well-versed in COPPA (and other online privacy issues), get in touch with Kelly / Warner today. Our track record is great and we’ve helped many, many other people with their COPPA issues. We can make sure you’re squared away too.

Are Fake Review Websites Illegal?

fake review website leaglities
Are fake consumer review websites legal in the United States?

Is it illegal for online and affiliate marketers to create fake review websites?

The FTC can go Ramsay Snow on deceptive marketers (financially speaking, of course) — so no, it isn’t at all wise to operate fake review and consumer report websites. BUT, the issue isn’t black and white. Proper disclosures and a trickery-free user interface will most likely keep you in the legal clear.

Basically, the key to staying on the right side of online marketing law is honesty. If something is an advertisement, label it as such. If you have a business or personal relationship with a product or service you promote – disclose it.

List of review website affiliate marketing “techniques” that could get you in trouble with the law

Review websites are a popular form of affiliate marketing. But are they legal? Here’s a handy list.

  • Paying a person or using a service to “get” reviews is against regulation.
  • Writing a review for a product you’ve never used is against regulation.
  • Creating a website that presents itself as an unbiased consumer review portal, when in reality its main purpose is to sell one brand, is against regulation.
  • Failing to disclose a material relationship between a review website and parent company, or some other association that could bias the “reviews,” is against regulation.

I’m an affiliate marketer. What laws and government guidelines should I know?

Anybody involved in online marketing – whether they be an affiliate marketer or business owner with an online presence – should be intimately familiar with the Federal Trade Commission’s DOT COM DISCLOSURES. To read the blow-by-blow government guide on what is and is not acceptable when it comes to online advertisements and marketing campaigns, go here.

Warning: For the non-legal-geek, the DCD is crushingly boring. As such, you may just want to check out our summary here. We can’t promise it’s any less boring than the FTC’s version, but it’s a heck of a lot shorter.

The Dot Com Disclosures can be vague in areas. If you are unsure if one of your techniques could get you in trouble, contact an attorney who has helped online business owners with FTC cases in the past.

Also, all businesspeople should understand the Lanham Act, specifically what it says about false advertising and unfair competition. And lastly, it’s a good idea to follow the California State online privacy laws – as the Internet cares not for state boundaries, and if people in California can use and interact with your site, then your best bet is to adhere to California law.

Can I Make Up Testimonials and Reviews? After All, How Is Anybody Really Going To Know If They Are Fake Or Not!?

We understand. It’s tempting. How is anybody going to find out if your testimonials are real or fake? For starters, if you use stock photography for the testimonial pictures, that’s a pretty good indicator of the reviews’ falsity. Also, the FTC can audit your site, and if you don’t have actual people to match up with the testimonials, you could find yourself looking down the barrel of a hefty FTC fine.

The Bottom Line When It Comes To Marketing With Fake Review Websites

If you don’t want to risk being sucker-punched by the FTC, follow the Dot Com Disclosures to the letter. If you are even the least bit unsure if your website passes legal muster, get in touch with an online marketing attorney to conduct an audit of your site and business. It’s a lot less than you may think, and it will probably save you money and headaches down the road.

To speak with an online affiliate marketing attorney, get in touch with Kelly / Warner Law today. We’re not just lawyers, we’re also affiliate marketers.

Section 230 CDA: ISP Protection For Internet Defamation

Section 230 CDA Internet defamation protections for website operators
Internet defamation lawyer explains Section 230 of the CDA in plain English.

Can a website be held responsible for a defamatory comment posted by a user? In most cases, the answer is “no.” Why? Because of Section 230 CDA.

Thanks to Section 230 of the Communications Decency Act, website operators and Internet Service Providers are immune from liability if someone posts a defamatory statement on an online property that they operate or host.

The “meat” of Section 230 of the CDA:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Difference Between Defamation Liability For Online Media Outlets & Print Outlets

Different rules exist for online and offline publishers (kinda, sorta). For example, let’s say a freelance writer pens a scathing, libelous article and a newspaper publishes it. The newspaper could be held liable for the writer’s article even though the writer isn’t employed by the newspaper. Now, let’s apply the same scenario to Facebook. Thanks to Section 230 of the CDA, the social networking company is not responsible if John Doe posts a defamatory article on his Facebook page because Facebook enjoys defamation liability protection under Section 230 of the CDA.

If, however, a website posts an article or a piece of content that is defamatory, the website WILL be held responsible for Internet defamation.

Editors Under Section 230 of the CDA

Another key part of Section 230 of the CDA deals with editors. Even though a website wouldn’t normally be held responsible for defamatory content posted by a user, blog and forum editors can be considered the responsible publisher if they edit or approve content for publication. Editors can also be held liable for defamatory content for editing contributed content.

However, the CDA states:

No provider or user of an interactive computer service shall be held liable on account of:
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

In other words, if an editor publishes some articles and not others, based on the criteria above, the editor wouldn’t legally be deemed the publisher, despite his or her curating responsibilities.

If Section 230 CDA Protections Prevent Me From Suing A Website, What Do I Do If I Don’t Know The Real Name Of A Defaming Poster?

Who do you sue if the defaming poster is anonymous and uses an “Internet handle?” Answer: You file a “John Doe” lawsuit. Then you can submit a motion asking for a court order compelling John Doe’s ISP to turn over contact information for the offending poster(s).

Are There Any Situations In Which A Website Operator or ISP Can Be Sued For Internet Defamation Despite Section 230 CDA Protections?

Understand that although interactive computer service providers can’t be considered the publisher of defamatory content, they can be held liable for different reasons. To illustrate, let’s say  defamer works for a webmaster and is paid to generate content. In such a case, the webmaster could be held liable for their employee’s content, thus nullifying the CDA’s protection for publishers in defamation lawsuits.

Here are a few quick tips to keep in mind when combating Internet defamation:

  1. Time is crucial. If you are defamed, file your Internet defamation suit as soon as it can be filed. You want to make sure your suit is filed before the statute of limitations runs out.
  2. Remember that Section 230 doesn’t protect against all types of illegal activity. The webmaster permitting copyright or trademark infringement, or some other criminal act on his or her website, might be held liable for the offenses.
  3. Always seek counsel of an attorney specializing in Internet law whether you are filing a defamation suit or need to defend yourself against a defamation suit.

Speak With An Internet Defamation Lawyer

If you are dealing with any Section 230 CDA issues, and you’re ready to speak with an attorney about your legal options, get in touch with Kelly / Warner Law. Our firm has handled countless online defamation cases and know the niche incredibly well. We know how to prepare motions for ISP court orders, and how to litigate libel cases quickly, so your life — and business — can get back on track.

Don’t hem and haw. Pick up the phone and start problem solving today. The process is probably a lot less painful (and less costly) than you think.

“Libel-In-Fiction” Case Over Indie Flick Hits Courthouse

A libel-in-fiction lawsuit over Indie film "What Maisie Knew" has hit a California courtroom.Lately, Hollywood has been a hotbed of defamation. The latest libel lawsuit conceived in Tinsel Town involves a screenwriter, his ex-paramour and Indie Julianne Moore Vehicle, “What Maisie Knew.”

Indie Flick Based On Henry James Novel Results In Libel-In-Fiction Lawsuit

In 2012, indie flick “What Maisie Knew” hit theaters. A wrenching tale of separation dynamics, the movie tells the story of an acrimonious child custody battle exacerbated by the personalities of two self-accommodating parents.

Carroll Cartwright penned the screenplay. During the promotion tour, he said he chose the project because he “could relate.” You see, Cartwright was in a six-year relationship with a woman named Ronee Sue Blakley. They had a child. But when Blakley and Cartwright ran into that oft-encountered wall of irreconcilable differences, a contentious child custody suit ensued.

For Ronee Sue Blakley, the screenplay and real life events bore too much of a striking resemblance, so she filed a libel-in-fiction lawsuit.

So-called “libel-in-fiction” cases can go either way. Many claims are thrown out early, but other petitions result in big plaintiff wins. For example, a jury awarded Vickie Stewart $100,000 for being portrayed as a promiscuous alcoholic in the book “The Red Hat Club.”

In this libel-in-fiction claim, Blakley is charging defamation and emotional distress. By way of argument, she offers a litany of similarities between the movie and her life with Cartwright — not the least of which being that Cartwright changed the main female character’s name to something very similar to her own, while leaving many of the other names unchanged from the original novel.

What Are The Plaintiff’s Chances of Winning This Libel-In-Fiction Lawsuit?

In this case, the thing most working against Blakley is the almost obscene prescience of Henry James’ original novel – and subsequent source material for the 21st century Hollywood version. Though there may be similarities between the movie and Cartwright’s life with Blakley, the 1897 novel was about two irresponsible parents, with joint custody, and the affected child.

We’ll keep an eye on this case, as libel-in-fiction suits are a crap shoot – and it will be interesting to see how this one plays out.

Contact A Libel Lawyer

Are you dealing with a defamation situation? Do you need the advice of a defamation attorney? If yes, get in touch with Kelly / Warner today. Our slander and libel legal practice has – successfully – handled all manners of defamation lawsuits. We’re quick, discreet and know slander and libel law like Wayne Gretzky knows hockey.

Don’t wait, get started on fixing your defamation problem today.

Queen of Soul v. Internet Humorists: Satire v. Defamation In The Age Of Memes & Humor Websites

satire defamation aretha franklin
A recent lawsuit filed by Aretha Franklin raises the question of satire and defamation.

A doozy of a celebrity defamation lawsuit is taking shape. To be clear, this libel lawsuit will not get far; it will not pass GO, nor will the plaintiff collect any money.

But when the Queen of Soul – (Millennial Decoder: Aretha Franklin) — drops a $10 million defamation lawsuit against geek-centric satire site The News Nerd, the moment cannot pass without acknowledgment.

In a way, the debacle is more than just a celebrity defamation of character suit; it’s a generational libel clash of the entertainment titans. Call it, Old School Crooner v. New School Satire.

The Satirical Article That Resulted In A Defamation Lawsuit

So what was the “article” that shook Franklin’s r-e-s-p-e-c-t? Try:

“Patti LaBelle Arrested After Fist Fight with Aretha Franklin”

The story went viral and at last count was viewed by over 40,000 eyeballs.

“Get a sense of humor, Aretha,” right? Sure. But, let’s, for a second, try to look at things through Ms. Franklin’s eyes – her 72-year-old eyes.

Satire & Defamation: What Counts As “Reasonable” In The Age Of Subtle Memes and “Barely There” Satire

Skepticism is a mainstay of of the Gen-X, -Y and Millennial personality. And that’s not an repudiation; hey, when you’ve been around the Internet the majority of your life, you tend not to believe everything you read online; you quickly develop a sixth sense for what is and what is not a satire website.

But not everyone does – and “barely there” Internet satire is not something “a reasonable” 60- or 70-year-old may immediately recognize as such.

Human Guinea Pig Experiment on In-Law: Can A Sexagenarian Spot The Online Satire?

To test my generational satire theory, I decided to conduct an imperfect experiment with a sexagenarian relative. Without explanation, I showed her the article in question. Predictably, her eyes widened, her jaw dropped, and after she had devoured the last morsel of “news,” breathlessly, she turned to me and said, “Wow! Who knew Aretha was so violent!”

And who could blame my unwitting human guinea pig? To the untrained eye, The News Nerd looks a whole lot like a legitimate news site. And even though the website dons a disclaimer declaring it a work of fiction, the notice is on the far right bottom of the page – where the average reader may never look. Moreover, the piece is written like a straight news piece. Not a hint of sarcasm is present. The lack of tongue-in-cheek is so glaring, it makes one wonder: what, exactly, was the author satirizing or parodying?

(Actually, the more I think about it, this silly suit may cause NewsNerd a teeny bit of heartburn if it ends up in front of the “wrong” judge. Franklin, most likely, will never win, but a judge with certain leanings may let it play out for a bit to prove a point.)

Franklin’s publicist, Gwendolyn Quinn, released a statement regarding the celebrity defamation of character suit. Quinn explained that the Queen of Soul did not get the joke. “It was presented as a serious news story intended to depict [Aretha] in a slanderous and derogatory way,” lamented Team Franklin.

Satire or Defamation? In This Case Satire Will Most Probably Prevail

Again, the chances of Franklin winning this satire defamation suit are between slim and none. After all, a disclaimer on every page of the News Nerd reads, “The stories posted on TheNewsNerd are for entertainment purposes only. The stories may mimic articles found in the headlines, but rest assured they are purely satirical.”

That said, the case does raise a pair of questions:

  1. With satire becoming more and more mainstream, subtle, and arguably a valid form of news delivery (see The Colbert Report), can it (satire) ever be defamatory despite culturally engrained Constitutional protections?
  2. What are the legal implications if “a reasonable person” can’t distinguish fact from satire?

Perhaps these are questions the courts will have to re-visit for the Internet Age.

Speak With A Satire Defamation Attorney

Are you considering suing for satire defamation and wondering if you have a case or not? If yes, get in touch with Kelly / Warner Law soon. The statute of limitations is not that long when it comes to defamation, so the longer you wait, the less chance you have of having a viable case.

Big False Advertising Law News: SCOTUS Changes The Rules

false advertising lawBluntly speaking, the U.S. Supreme Court usually picks lawsuits that dwell at the intersection of “American Morals Avenue” and “Dispassionate Law Lane,” leaving the quasi-wonkish definitional deliberations to the appellate circuit.

But not this time.

Lexmark v. Static Control: Why It Matters In The World Of False Advertising Law

Recently, the highest court in the land accepted and subsequently released an opinion on the uncharacteristically “wonky” Lexmark vs. Static Control. A case Justice Scalia described as “sprawling,” Lexmark is dense, nuanced and in its most recent ruling, the Supreme Court only addressed one aspect of the claim – the issue of “standing” in Lanham Act false advertising suits.

So, why is Lexmark such a big deal? In plain English, via the ruling, the Court created a national “test” for determining who can and cannot sue for false advertising under the Lanham Act.

False Advertising Standards Before Lexmark = Different Strokes For Different Folks

Before now, false advertising rules essentially came down to location, because different courts used different standards to determine who could and could not sue for false advertising under the Lanham Act. The Lexmark ruling, however, nullifies the appellate and district court tests, replacing them with a unified two-prong “prudential standing” test.

Zones of Interest

The court determined that legal standing must include a direct “zone of interest” relationship between litigants. Huh? In the parlance of our time (TM “the Dude”), what SCOTUS is saying is that any company or entity has the right to sue for false advertising under the Lanham Act, even if the defendant and plaintiff are not direct competitors. Additionally, the second prong of the new false advertising determining test will require a verifiable “proximately caused” commercial injury. In other words, moving forward, in Lanham false advertising cases, plaintiffs will have to prove that defendants’ actions in some way caused financial harm.

Injury To Business Reputation

In addition to false advertising, the Lanham Act allows claims for injury to reputation and commercial interests “flowing directly from the deception wrought by the defendant’s advertising.” According to the false advertising law, this condition exists when the deception causes the consumer to reject a product. The new test makes no distinction for reputation without proof of actual malice, but only addresses commercial claims by the plaintiff.

Ultimate Impact of Lexmark v. Static Control On False Advertising Law

The final impact of the ruling on the number of future lawsuits is unclear. District and appellate courts now have standard instructions when determining false advertising Lanham Act cases, but the burden of proof may be impacted at the preponderance level. Preponderance allows a case determination by one single controlling factor if the fact carries enough legal weight. There may also be several other overlapping statutes allowing established plaintiffs standing in claims that are crafted in an acceptable manner.

Contact False Advertising Attorney

Kelly / Warner handles all manners of false advertising and commercial libel cases. If you need to speak with an attorney about a trade libel or false advertising issue, please get in touch today. We’re a top-rated firm with the experience you’re looking for in terms of false advertising and commercial defamation law. We look forward to speaking with you soon.

Food Libel Update: Pink Slime Case Could Make Waves

pink slime food libel lawsuit
An old fashioned on-air food libel lawsuit is haunting the halls of ABC. “Pink Slime” is to blame.

The so-called “Pink Slime” defamation lawsuit between ABC and Beef Products Inc. (BPI) is going to last an eternity, y’all. Both sides have lots to gain (and lose) – and both sides have tons of money for food libel litigation purposes. The latest? A North Dakota judge rejected ABC’s motion to dismiss the case and gave BPI the green light to move forward with their trade libel/food libel lawsuit.

The Pink Slime Defamation Lawsuit (So Far) In 20 Seconds

Impolitic Meat Quip Led To Grocery Store Backlash, Hurting Bottom Line…

Back in 2013, Diane Sawyer headlined a television investigative piece about a new meat product called “lean, finely textured beef.” Unflatteringly, Sawyer went with “pink slime” when describing the product.

So A Meat Company Sued For Food Libel…

Needless to say, the “lean, finely textured beef” people were none too pleased with the “pink slime” quip. Grocery stores, undoubtedly under pressure from GOOP-loving gals and guys, removed the meat from shelves. Profits suffered, and within short order, the beef industry labeled the “expose” a “disinformation campaign” and Beef Products Inc. (BPI)sued the American Broadcasting Company and Diane Sawyer for defamation and tortious interference.

And Both Sides Are Arguing Every Motion Available To Argue…

At first, the two sides jockeyed over jurisdiction. And most recently, ABC argued for dismissal on the grounds that defamation did not occur, because no false statement of fact was made.

But The Judge Says The Case Must Move Forward!

The judge, however, ruled the case should move forward. She reasoned that while the defense could successfully argue “public concern” and win the case, since the plaintiffs say they can prove purposeful disparagement, they should be permitted their “day in court.” Moreover, Judge Gering said that the defense failed to prove that their statements were just hyperbolic opinions, so the case would continue.

In the words of the Court:

“In this case, the court believes that the allegedly tortious statements made by the Defendants give a person a mental picture of the product which [sic] is being described, i.e. provide an actual description of the product and are not merely an ‘unrealistic exaggeration.’ Furthermore, it cannot be said that the alleged defamatory statements made by the Defendants were merely hyperbolic statements or epithets.”

The Judge continued:

“Simply put, none of the cases cited in the Defendants’ brief stands for the proposition that news organizations are immune from suit for tortious interference with a business relationship under the First Amendment. The ABC News Defendants’ status as news reporters and news organizations does not give them immunity from such a claim.”

Why You Should Keep An Eye On This Food Libel Lawsuit (If You Care About Defamation Law, That Is.)

This is a defamation case to keep an eye on because it presents many interesting questions for a jury and judge to consider. Will food libel laws make a difference in this defamation suit? And if they do, will it trigger a change of statute heart amongst lawmakers if said food libel laws prove to severely hinder free speech? And if they are argued, will food libel protections trump “public concern” in this instance? It’s been some time since a major network station got caught in a very public defamation row.

To keep up on the latest and greatest food libel and defamation law news, sign up for the Kelly / Warner Law newsletter. We won’t litter your inbox with useless information, but once a month, you’ll be treated to the big defamation and food libel case news of the last 30 days. Click here to slap your address on our list.

Get In Touch With A Food Libel Lawyer

Oh, and if you’re in need of a slander or libel lawyer, get in touch today. We’re here and ready to answer all your defamation and food libel law questions.