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 all that juicy data to product marketers, potential employers, insurance agencies, credit card companies and just about anyone who has 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.

Apparently, staffers at the FTC slipped into super-spy mode and posed as employers or creditors in search of information. The undercover FTC agents probed 45 companies that market themselves as offering “quick and easy” background check services. All the targeted operations maintained websites and toll-free numbers. Of the 45 companies, 10 received letters from the FTC urging them to review processes while keeping FCRA statutes in mind.

In essence, 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’ FCRA oversight may simply be a matter of a need for more training or clarifying company policies with new employees.

The Fair Credit Reporting Act outlines a series of checks and balances consumer reporting agencies must follow. The two main FCRA provisions:

• Information brokers must notify the inquire-e, if he or she is the subject of a search.
• In certain situations, the background checker must verify the entity in search of the information is on the up and up and requesting data for legitimate purposes.

But here’s the big loophole of the FCRA: if you want to establish a background check business, to avoid being fined, you can use conspicuous disclaimers that your information is for “entertainment or marketing purposes” only and that some of the information may be old and inaccurate. That said, if you distribute mis-information, and the person affected finds out, they can probably personally file a lawsuit against you – 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 their sights on data brokers. In fact, last year, the FTC ordered Acxiom and 8 other information merchants to disclose what type of data they collect and how it’s used – an uncomfortable proposition for data brokers who take great pains to protect trade secrets.

If you are a data broker with an online presence, contact Kelly Warner Law for a compliance audit of your operation.

Is online stalking the new “Fatal Attraction” fear? For one Canadian, it’s costing him a livelihood.

“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.

If some one in another country defames you, how can you serve them with a lawsuit abroad.

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:

1. Using the foreign country’s laws for service.
2. Using a method the foreign country directs petitioner to use, via a rogatory (formal legal request).
3. Unless prohibited by a foreign country’s law:
   1. Delivering directly to person.
   2. “Any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.”
4. 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.

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:

1. Sending judicial documents via “postal channels” directly to a person abroad;
2. Qualified officials effecting service directly through judicial officers; and
3. 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.

Arizona-based company, Domains By Proxy, hides user information from public view. Can you subpoena them for information and get it?

Domains By Proxy Lawsuits

Have you ever tried to uncover a website owner using ‘Whois’ information, only to find ‘Domains By Proxy’ is the registrant? The discovery can be frustrating – especially if someone defamed you online and you want to go legal on their butt. After all, it’s tough to sue a person for defamation, infringement or dilution if you don’t know who they are.

It is possible, however, to uncover anonymous defamers who use privacy intermediaries, like Domains By Proxy.

Domains By Proxy 101

Domains By Proxy is a Delaware corporation, headquartered in Arizona and owned by hosting/domain giant, GoDaddy. DBP offers domain registration privacy services that shield customers’ names from public view. When a person uses Domains By Proxy, DBP’s information populates the “Whois” database, thus making it difficult to uncover the registrant’s true identity.

Domain By Proxy’s Definition Of Privacy

Domains By Proxy is not loved by all. Some folks feel the company talks a good game, but ultimately is a double dealer. Accusations of “malicious business activities including inducements to join their service,” have plagued the company for years. In addition, many detractors think DBP does a bad job of keeping customers’ data private.

Domains By Proxy’s policies, however, are clearly delineated in their terms. Section 4 of the DBP user agreement states the company has the “absolute right and power…without any liability to you whatsoever,” to either: (1) close your account and (2) reveal your name and personal information.

While Domain By Proxy’s less-than-private policies may be kryptonite to dastardly ne’er-do-wells, the company’s willingness to cooperate when a law is broken is beneficial to people who’ve been anonymously defamed online.

Domains By Proxy Lawsuit: Powermark Homes v. John Doe

Perhaps the most well-known Domains By Proxy lawsuit is Powermark Homes v. John Doe.

Mark and Lisa Powers owned and operated a real estate company called Powermark Homes, Inc. Like all companies, Powermark had an unsatisfied customer – an unsatisfied customer that decided to create a couple of “suck sites” about the Power’s venture.

When the Powers learned of the disparaging websites, they filed a complaint against John Doe and Domains By Proxy citing defamation, disparagement and invasion of privacy. In addition to the suit, the plaintiffs also sent DBP a DMCA takedown request and sought a temporary restraining order requiring the “defendants to remove the false and defamatory website.”  The Powers averred “the statements, allegations, pictures and other representations contained in the false Internet site are in many or most instances false and misleading against some of…the plaintiffs, and assert false allegations of fact which directly harm the reputation and public appearance of some or all of the plaintiffs.”

As is the DMCA process, DBP notified Doe of the DMCA takedown request. Doe then engaged in some pro se lawyering. Eventually a public citizen litigation group came to Doe’s legal rescue. Litigation ensued.

Ultimately, a judge granted Doe’s and DBP’s motion to dismiss the defamation case, because the Powers, according to the court, didn’t clearly delineate the nature of the defamation. That said, the Powers did succeed in getting the “suck sites” down via the DMCA. So, while they didn’t get any money out of Doe or DBP, they got the site removed from the Internet – which, in many cases, is all a defamation victim wants.

Powermark Homes v. Doe and Domains By Proxy was not a popular ruling. Many saw it as a clear cut example of how the DMCA can be used unfairly to silence critics. And, from a purely objective legal standpoint, that’s a fair assessment. But for someone looking to rid the ether of unflattering or disparaging comments, the DMCA can be a handy tool. Basically, it’s a problematic loophole-filled law, with good intentions.

Domains By Proxy Privacy Policy Explained (Last Revised 3/22/2013)

The beginning of Domain By Proxy’s privacy policy states the company “will not give any information about you to others without your express permission,” language in the middle, however, qualifies that statement. Further down the Domains By Proxy privacy policy, it states that they will provide “information about you to third parties to provide various services on [their] behalf.” These services include:

1. Processing credit card payments;
2. Serving advertisements;
3. Conducting contests or surveys;
4. Product and customer demo analysis;
5. Shipping; and
6. Customer relation management.

They also reserve the right to:

1. Allow third party ad servers to “employ cookies and action tags to measure advertising effectiveness.”
2. Supplement “the personally identifiable information you submit” to them “with information from third party sources.”

Domains By Proxy’s Stance On Giving Information When Subpoenaed Or Approached About A Lawsuit

Domains By Proxy clearly states that they may share information with attorneys, law enforcement officials or other legal bodies to “resolve any and all third party claims, whether threatened or made arising out of your use of a domain name registered by DBP on Your behalf.”

Other times when DBP says they will reveal your information:

1. If you breech any provisions of the TOS or DBP anti-spam policy.
2. Protect the integrity and stability of the applicable domain name registry.
3. Comply with any subpoenas, court orders or requests from law enforcement.
4. Comply with UDRP.
5. “To avoid any financial loss or legal liability (civil or criminal) on the part of DBP, its parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees.”
6. Domain name infringes on another’s intellectual property or “other legal rights.”

If DBP catches wind that you are engaged in any “illegal or morally objectionable activities including, but not limited to, activities which are designed to:”

1. Appeal to prurient interests;
2. Defame, embarrass, harm, abuse threaten or harass third parties;
3. Violate laws;
4. Promote hate crimes, terrorism and child pornography;
5. Promote vulgar, obscene, invasive, privacy, racially, ethically or otherwise objectionable;
6. Impersonate;
7. Harm minors in any way;
8. Spread an e-virus.

What If I Defamed Someone, And Canceled My Domains By Proxy Account Before The Person I Defamed Figures Out It Was Me?

Canceling your Domains By Proxy domain won’t help much if a potential plaintiff is on the hunt. The company privacy policy states, “when your Domain By Proxy account is canceled” (either voluntarily or involuntarily) all of your personally identifiable information is placed in “deactivated status on our relevant Domains By Proxy databases. However, deactivation of your account does not mean your personally identifiable information has been deleted from our database entirely. We will retain and use your personally identifiable information as necessary in order to comply with legal obligations, resolve disputes, or enforce our agreements.”

If A Plaintiff Gets The Government or Lawyers Involved, And You Genuinely Did Something Wrong, Expect Domains By Proxy To Give Up The Goods On You

Under Domain By Proxy’s “Compliance with Laws and Law Enforcement Section” it states:

“We will disclose any information about you to Government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including without limitation subpoenas), to protect our property and rights of a third party, to protect the safety of the public or any person, or to prevent or stop activity we consider to be illegal or unethical. We will also share your information to the extent necessary to comply with ICANN’s rules, regulations and policies.”

In other words, if you genuinely defamed someone, ripped off intellectual property, or in some other way broke a state of federal law, Domains By Proxy may have no qualms about giving up the goods on you. That said, they’re known to follow DMCA standards, so if you file a nebulous – or flat out false – DMCA takedown request, don’t expect cooperation. More than that, if you do pursue a false DMCA takedown, you may be the one who ends up under a pile of debt, because false DMCA request laws exist.

In order for a claimant to open a dialog with DBP about seeking identifying information in service of a civil legal matter, a valid subpoena must be faxed, mailed or served to DBP at their Scottsdale, AZ headquarters.

If the issue is not an emergency, DBP won’t immediately hand over user data. They will alert the affected customer, giving them an opportunity to quash the subpoena.

Domains By Proxy also retains the right to “change an administrative fee” to the person or entity submitting the request, for costs associated with subpoena compliance.

If you need to unearth the identity of a Domains By Proxy customer, contact Kelly Warner Law. We’ve dealt with Domains By Proxy lawsuits and litigation before and understand the best way to work with the company. We’ll review your circumstances and advise you on the best way to move forward. If you’re serious about suing – or getting online material removed quickly – don’t dilly-dally, because defamation statutes of limitations, in most jurisdictions, aren’t long.

The Dallas Observer calls the case the “single greatest lawsuit ever to be filed in Dallas County” – and they’re not exaggerating. After all, It’s rare that a suit involving a 46-year-old grandmother psychic, real name Presley, who sometimes goes by “Angel” or “Rhonda,” comes along. Brass tax: the psychic is being sued for defamation, by a farmhouse-living couple, because a real life attempt at being the “Medium” backfired.

The Farmhouse Owners v. The Psychic: In The Beginning

One June day in 2011, the FBI, DPS and the Liberty Country Sherriff’s Office descended upon Joe Bankson’s and Gena Charlton’s farmhouse in Hardin, Texas. A few media outlets arrived, too. The gang was there because a woman who called herself Angel had called the police insisting that a mass grave of of dismembered children’s bodies were buried at the farmhouse. The psychic also warned that “stuff was written all over the walls in blood.” When police asked where she got her information, Angel explained she divined it.

Who Called the Cops…And the Paps?

Now, it’s unclear if authorities already had information pointing them to the Hardin farmhouse, or if they’re big time believers of clairvoyance. Regardless, the Sheriff’s department supposedly called some cronies and made their way to the site. Turned out, though, that Angel’s extra-sensory skills were askew – because nobody found any bodies.

You Believe A Psychic, You Get Sued

When the masses left the property, Bankson and Charlton decided to file a lawsuit. In their eyes, privacy was breeched and peace was disturbed thanks to a Psychic and overzealous law enforcement agents. The farmhouse owners sued “Angel” for defamation, the Sherriff’s department for unreasonable search and seizure and Belo News, NYT, CNN, Thomson Reuters and ABC News for publishing “false statements in national and international headlines.” Bankson and Charlton claimed to have suffered lost wages, mental anguish and substantial reputation damage.

First Step In This Defamation Saga: Find Out Who Angel Really Is

Bankson and Charlton encountered some legal hurdles at first. Most notably, the only name they had for the less-than-stellar psychic was “Angel.” Was that her real name? Was she even a woman? After some lawyering, however, Angel was revealed to be one Presley Grindley of Lago Vista – a 46-year-old grandmother who also went by the name Rhonda.

Related Reading: Click here to find out how to uncover an anonymous defamers real name.

Name in hand, Grindley was served. The process agent even took a pic of the incident, which can be seen on the Dallas Observer’s site. Nevertheless, photographic evidence didn’t stop our intrepid Angel from sending a note to officials – a few days before she was due for a deposition – that she had “no knowledge of” why she should schlep down to Dallas for questioning.

Between you and me, Angel-Rhonda-Presley may have a hard time getting out of this one. Even if the case is thrown out, she still has to go through the motions so it can be. If you ignore a lawsuit it won’t just go away – even if you DO have super-sensory powers.

What Happens Next In the Great Dallas Psychic Defamation Lawsuit?

Early on in the case, Bankson and Charlton opted to dismiss the charges against the media outlets, on the condition that they can re-file at a later date.  It sounds like they’re seeing how the case against the psychic goes first to determine if it’s worth going after the others. If Bankson and Charlton are serious about suing the others, though, they need to keep defamation statute of limitations in mind.

As far as Angel goes, when approached by media outlets about the story and subsequent defamation lawsuit against her, she explained, “I am a reverend. I am a prophet and I get my information from Jesus and the angels. I told them that I had 32 angels with me and they were giving me the information and then it went from there.”

Good luck with that argument in court, Angel!

P.S. – If you want to read a well-written, laugh inducing bit of journalism, check out the Dallas Observer’s articles on this satisfying case. You’ll be glad you did.

Texas Couple Sues Angel the Psychic, Belo, the Times and CNN Over False Claims Of a Mass Grave at Their House

CNN and CBS Both Off the Hook in Defamation Lawsuit Over That Nonexistent Mass Grave

Angel the Psychic, Wrong About All Those Bodies at a Liberty County Farmhouse, Is Apparently Unaware She’s Being Sued

Meltwater News – a San Francisco “commercial media-monitoring service” – hasn’t had much luck in the court room lately. First, they tussled with the UK’s National Licensing Agency and came out bruised. Then, a New York District Court judge ruled against the news clipping service in favor of the Associated Press. While not as widely discussed as other Internet law cases currently making headlines, Associated Press v. Meltwater is significant because the ruling could stifle the growing “niche information” industry. Moreover — and only tangentially related — the case brings into question whether or not we need to redefine the “sweat of the brow” doctrine, as it relates to copyright infringement, when a case involves a digital information company.

These days, search technology almost qualifies as an inalienable right. And if current trends continue, the next generation may consider print newspapers a novelty in the same way Millennials consider record players to be retro quaint.  That’s why cases like Associated Press v. Meltwater matter; they shape the boundaries of digital communication and define the rules regarding the commodification of electronically distributed information.

So, let’s review the Associated Press v. Meltwater News lawsuit. Why did the AP sue Meltwater? Why did the Electronic Frontier Foundation publicly support Meltwater? What did the AP argue? What did Meltwater argue? Perhaps most importantly, how did the judge rule and why?  Finally, we’ll touch on how this case could affect online business moving forward.

Why Did the AP Sue Meltwater News?

The Associated Press brought a copyright infringement lawsuit against Meltwater News in February 2012. The former alleges the latter was taking unfair advantage of their intellectual property via an online news clipping service.  Specifically, the AP argued that Meltwater’s use of AP headlines and ledes in their e-mailings infringed on copyrights , thus damaging the AP financially. In laymen’s terms, the AP felt Meltwater was simply copying, re-packaging, profiting, and not compensating the AP for their reporting and analytical efforts – not to mention the overhead the AP incurs to produce said reporting and commentary.

Associated Press v. Meltwater News: Plaintiff’s Argument

The Associated Press’ argument was straightforward: don’t use our content in your press clippings because it’s the online equivalent of selling stereos that just happened to fall off the back of a truck.

Now you may be thinking, “What about fair use? Can’t anybody reference another work so long as it passes the fair use test? Doesn’t the fair use test allow for the use of excerpts?” And perhaps most germane to this case, “Didn’t Kelly v. Arriba Soft Corporation establish that search engines are operating within the bounds of fair use?”

An attorney for the AP, Elizabeth A. McNamara, explained that fair use rights kick in when a given mark is used for comparison or critique. In this case, Meltwater was using the material despite a lack of commentary, analysis and context, and therefore should be held accountable.

Associated Press v. Meltwater News: Defendant’s Argument

In their defense, Meltwater argued fair use. They averred that their service is, essentially, a specialized search engine that should not be held liable for copyright infringement. The media-monitoring service highlighted the structure of other search engines, like Google, and pointed out that standard search result pages include content snippets.

Both The electronic Frontier Foundation and Public Knowledge wrote amicus briefs in support of Meltwater. Their support stemmed from a shared belied that the AP’s claim trumpeted a “dangerously narrow view of what is ‘transformative’ in a copyright court battle over a news-tracking service.”

Associated Press v. Meltwater News: Judge’s Ruling

After considering both arguments, U.S. District Judge Denise L. Cote ruled that “Meltwater copies AP content in order to make money directly from the undiluted use of the copyrighted material; this is a central feature of its business model and not an incidental consequence of the use to which it puts the copyrighted material…Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work. Permitting Meltwater to take the fruit of the AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.”

In other words, AP wins and Meltwater loses.

Does The Judge’s AP v. Meltwater Decision Inadvertently Make Newsletters Illegal?

Millions of companies and freelancers send out regular newsletters to people who voluntarily add their address to mailing lists. Most mailing lists are essentially a marketing tool, and therefore free, but many are only sent to individuals who pay money to belong to a group or club.

Let’s pretend that Company A, which is in the business of installing pools, maintains a backyard landscaping newsletter for their customers. In it, they highlight pool trinkets and deck building services. Occasionally, Company A’s newsletter includes links to articles about pool maintenance and backyard lifestyle ideas from a variety of online publications. One day, Magazine Y decides that Company A is infringing on their copyrights by including links to Magazine Y articles in their monthly e-mailing. So, Magazine Y decides to file a copyright infringement lawsuit against Company A.

Under the legal precedence set in AP v. Meltwater, Magazine Y would win and Company A would have to comply with any damages and injunctions ordered by the court, in addition to their own attorney fees. While it may seem like an easy thing to simply exclude any media outlet that doesn’t want to be involved in a newsletter, the costs of being sued could be enough to put some small business out of business. More than that, it opens the door for a new type of copyright troll.

Do We Need To Re-Examine Sweat of the Brow Copyright Standards?

Though not related to the central questions of AP v. Meltwater , the case raises another legal question: since information is now a hot commodity, and since the Internet has created a new industry which deals solely in data-collection, analysis and distribution, is the old standard that “sweat of the brow” efforts cannot be copyrightable? It’s a stretch – but it’s something to consider since information brokering is emerging into a multi-billion-dollar industry.

Under U.S. law, the “sweat of the brow” doctrine dictates that labor alone does not constitute a “new work” and therefore any works that only have sweat of the brow labor as a distinguishing factor cannot be granted federal copyright protections. For example, a phone book is not copyrightable. To wit, it’s understandable how a judge could consider Meltwater’s services, determine that it’s a sweat of the brow creation, and therefore declare it unworthy of intellectual property protection.

But data and content creation and content distribution companies, like Meltwater, are the hot new thing. As such, it may be time to start re-examining how current legal precedence could butt proverbial heads with the rising cloud-based content industry.

What This Case Could Mean For The Future Of Online Copyright Lawsuits?

AP v. Meltwater could have significant effect on future online copyright cases. The courts have definitively spoken and their message is clear: It’s not cool to simply re-package another party’s content and sell it for profit without compensating the work’s originator in some manner. It’s a ruling that inadvertently muddies already established online intellectual property case law – like Kelly v. Arriba Soft.

Meltwater intends to appeal the decision, as they contend it “misapplies fair use doctrine and is at odds with a variety of prior decisions that have paved the way for today’s Internet.” To keep up with our perspective on the case, join our mailing list.

Do you have an online copyright legal issue? If yes, and you want to consult an attorney, contact Kelly Warner Law. We have a dedicated team of lawyers well-versed in Internet intellectual property law. Get in touch today.

The new Dot Com Disclosure rules are here! The FTC has a new set of online marketing standards.

The Federal Trade Commission updated the Dot Com Disclosures. In April 2012, the nation’s consumer protection agency held workshops to discuss mobile devices and sales disclosures. Now, they’ve released a new set of guidelines. It’s supposed to act as a set of rules for how mobile and social media ads should be structured, but the 53-page Dot Com Disclosure update is actually a lengthy treatise filled with non-committal suggestions.

Regardless of the wishy-washy language, the Dot Com Disclosures are the closest thing we have to an online marketing law. Following the standards within could save you a costly legal battle with the FTC. Below is a rundown of the updated Dot Dom Disclosures. If you dabble in social media endorsements, geo-location or mobile advertising, the new FTC stance and recommendations will likely affect your current digital marketing campaign.

Part Rehash of the Original Dot Com Disclosures

The majority of the newest Dot Com Disclosures is a regurgitation of the previous document. It warns against the evils of “deceptive marketing,” and explains that good marketing is marketing which is truthful, substantiated and fair. The drafters of the document also spend time explaining why both consumers and sellers have a right to an honest marketplace.

While the latest version of the online marketing guide excessively explains the importance of proximity, repetition and prominence when it comes to advertisement disclosures, it does little in terms of presenting definitive answers as  to the exact parameters of what will and will not be tolerated by the commission. Despite an abundance of words, few definitive rules are laid out.

And believe it or not, the FTC is not shy about admitting their non-committal nature. In the new version of the Dot Com Disclosures, it clearly states that the document “is intended only to provide guidance.”

“The ultimate test is not the size of the font or the location of the disclosure, although they are important considerations,” reads the online marketing guidelines, “the ultimate test is whether the information intended to be disclosed is actually conveyed to consumers.”

Justification Against & Repeated Warnings About “Unfair & Deceptive Marketing Practices”

The charge of the Federal Trade Commission is protecting consumers from “unfair and deceptive marketing practices.” As such, they dedicate several paragraphs in the Dot Com Disclosures discussing why fraudulent online ads hurt buyers and sellers. “[Sellers]…expect and deserve the opportunity to compete in a marketplace free of deception and unfair practices” and consumers deserve to “understand what they are paying for” and that “deception can damper consumer confidence” explains the FTC.

In addition to rehashing the perils of questionable marketing tactics, the new Dot Com Disclosures also make clear that the guidelines apply to ads of all types – audio, video, digital, small, large, mobile, Internet. They didn’t bother naming all the possibilities, instead opting for the all-encompassing “not limited to any particular medium used to disseminate claims or advertising.”

General Look & Feel

The new Dot Com Disclosures address how online and mobile ads must be marked, so as to be easily distinguishable as promotional material. Similar to the older version, the new Dot Com Disclosures make clear that the “overall net impression of [an] ad” is more important than then individual aspects. The updated version also warns marketers not to “let other parts of the ad get in the way” of an advertising disclosure. Commissioners specifically mention buy now buttons and flashy shopping carts as potential distraction culprits. The Dot Com Disclosures stress that any disclosures need to be made before the “the decision to buy” is made. Disclosures should also be “displayed early in the decision-making process.”  Therefore, the guidelines seem to suggest that disclosures and other advertorial assets (i.e., a shopping cart or glossy graphic) should be of equal prominence.

The primary point the FTC hammers home: Disclosures should be obvious and unavoidable.

Proximity, Pop-Ups and White Spaces

Proximity is a big deal in the Dot Com Disclosures. The document mentions proximity more than a cookbook mentions eggs. The proximity gist is this: make darn sure any disclosures are near the ad it modifies. The guidelines urge that, when possible, the ads themselves should include relevant limitations within the ad, rather than a separate disclosure.

Pop-Ups

In this iteration of the Dot Com Disclosures, pop-up disclosures are called out by name. Specifically, the commission warns not to use “blockable pop-up disclosures.” So, if you’ve been using standard pop-ups to satisfy disclosure requirements, it may be time to change your methods.

White Space

The issue of “blank white space” is also specifically addressed in the latest version of the Dot Com Disclosures. The new guidelines make note of the deceptive nature of blank white spaces on lengthy sites; the rules urge marketers to repeat claims multiple times on a long website (see below for specifics about scrolling); the new online marketing document also directs advertisers to be mindful of the “multiple routes through a website” and urges marketers to make sure that disclosures are easily seen – no matter where or how a user happens upon an ad.

Teaser Ads

What should you do if you dabble in teaser ads? The FTC has this to offer:

“[In instances of teaser ads] when the advertised product is only sold through advertisers’ own website and the consumer must click through in order to take any action…a space-constrained ad can direct consumers to a website for more information[where the disclosure must be conspicuous].”

The FTC Thinks Hyperlinks Are Very Important

Hyperlinks to detailed disclosures are a popular method. As such, this version of the Dot Com Disclosures painstakingly addresses a myriad of issues related to hyperlinking. The FTC’s message concerning hyperlinks is this: make sure any disclosure links are noticeable, uniform and take users directly to the information they need to make an informed decision. According to the new Dot Com Disclosures, hyperlinks should be recognizable as links and not hidden by other elements on the page or device.

Anchor Text

The appropriate anchor text is also discussed in detail in the new online marketing guidelines. In short, advertisers are advised not to use generic, non-descript words for disclosure hyperlinks. The document specifically says that “hyperlinking a single word or phrase in the text of an ad is not likely to be effective.” It goes on to explain: “hyperlinks that simply say ‘disclaimer,’ ‘more information,’ ‘details,’ ‘terms and conditions’ or ‘fine print’ do not convey the importance, nature and relevance of the information…” In a rare moment of clarity, the Dot Com Disclosures suggest the following as the ideal hyperlink verbiage:

“Service plan required. Get service plan.” The Dot Com Disclosures clearly state that “necessary disclosures should not be relegated to “terms of use” and similar contractual agreements. On other words: don’t try to bury stuff in a tiny TOS link at the bottom of your website and call it a day.

Scrolling Seems To Be Of the Utmost Concern

During the Dot Com Disclosure workshops, participants must have spent a considerable amount of time debating the finer points of scrolling, because the latest version of the online marketing guidelines are filled with scrolling tips and standards.

Below is a list of how the FTC feels about scrolling when it comes to online and mobile advertisements:

1. Whenever possible, avoid ads that require scrolling in any direction.
2. Make every attempt to ensure “that scrolling is not necessary in order to find a disclosure.”
3. “When scrolling is necessary, use text or visual cues to encourage consumers to scroll to view the disclosure.”
4. The presence of “scroll bars along the edges of a screen are not sufficiently effective visual cue.”

To drive home their anti-scrolling preference, the Dot Com Disclosures also warn advertisers to “keep in mind that having to scroll increases the risk that consumers will miss a disclosure.”

The FTC Essentially says that It’s Your Responsibility to Keep up with the Latest User Behavior Statistics

In addition to making sure that all advertisements and promotional material is clear and conspicuous, the new Dot Com Disclosures also suggest that digital marketers must stay current when it comes to the latest and greatest user behavior studies. Items commissioners recommend advertisers keep abreast of include:

1. Empirical research about where consumers do and do not look on a screen;
2. Standard size and color studies regarding readability;
3. Studies regarding reading habits of users;

Throughout the new online marketing guide, users’ tendency to scan pages instead of reading them is mentioned several times. The point the FTC is making by reiterating our shared tendency to not “read an entire website or online screen” is that advertising disclosures should be so clear that an illiterate individual would be able to tell what it is.

Screen Size & Device Specifications

When word first surfaced that the Federal Trade Commission was considering an update to the Dot Com Disclosures, their focus seemed to be mobile device marketing and social media ads. While the agency did not address all the questions originally asked during the Dot Com Disclosure 2012 workshops, the new version of the guidelines does address issues pertaining to smaller screen sizes and the proliferation of available devices.

General statements regarding screen sizes and device diversification in the 2013 update of the Dot Com Disclosures:

1. Document states that guidelines are “device neutral” – meaning all the guidelines contained within apply to all electronic communication devices.
2. “If a particular platform does not provide an opportunity to make clear and conspicuous disclosures, then that platform should not be used to disseminate advertisements that require disclosures.”
3. Optimizing web pages for mobile devices “is important.”

You’re Responsible for Affiliate Sales People

Not only does the FTC want you to take extra steps to ensure your ads are sized properly for all delivery devices, but they also want you to educate affiliates promoting your product or service. The new Dot Com Disclosures state:

“Advertisers should employ best practices to make it less likely that disclosures will be deleted from space-constrained ads when they are republished by others.”

In other words, monitor everyone hawking your product via electronic means – you could be held responsible for their ineptitude. (Note: This should be taken seriously. After all, these days, the FTC is even going after people’s parents to recover funds.)

What To Do In Cases Where The Disclosure Is Long, But The Screen Size Is Small?

A frequently asked question regarding online advertising disclosures deals with screen size: What do you do if your disclosure is long, but the screen size is small – like on mobile phones?

The new Dot Com Disclosures addresses this question directly – but doesn’t answer it clearly:

 “…if a product’s basic cost…is advertised on one page, but there are significant additional fees the consumer would not expect to incur in order to purchase the product or use it on an ongoing basis, the existence and nature of the those additional fees should be disclosed on the same page and immediately adjacent to the cost claim and with appropriate prominence.

However, if details about the additional fees are too complex to describe adjacent to the price claim, those details may be provided by using a hyperlink.”

In other words, you should make every effort to include limitations and disclosures within the ad itself. If, however, the limitations are too long to fit, you can direct users to a lengthy disclosure page via a hyperlink.

Language & Confirmations

As has been preferred for nearly two decades now, the new Dot Com Disclosures makes a point of praising “plain language.” Gone are the days when a good contract was one freighted with complex Latin phrases and superfluous qualifiers. These days, a contract like that could harm you instead of protecting you.

The new Dot Com Disclosures unambiguously state: “Use plain language and syntax so that consumers understand the disclosures.” The guidelines go on to assert that in order “for disclosures to be effective, consumers must be able to understand them.”

The FTC specifically mentions avoiding the following language pitfalls:

1. Legalese
2. Technical jargon
3. Non-universal and little-known abbreviations (“other abbreviations or icons may or may not be adequate”)
4. Extraneous language and material, which only serve to make things more confusing

In addition to the above four language points, the 2013 Dot Com Disclosures point blank state that advertisers should require “the consumer to take some affirmative action to proceed past the pop-up or interstitial [page].” It also lays out in black and white that disclosures must come before the “add to shopping cart” stage. More specifically, “disclosures must be effectively communicated to consumers before they make a purchase or incur a financial obligation.”

New Social Media Rules

Perhaps the most talked about aspect of the 2013 Dot Com Disclosure updates is the addition of social media-related standards. The most important new social media marketing rule is that the word “Ad:” or “Sponsor:” must be included in a tweet (or other short social media message).

From the Dot Com Disclosures:

“‘Ad:’ at the beginning of a tweet or similar shirt-form messages should inform consumers that the message is an advertisement…”

plus

“the word ‘Sponsored’ likely informs consumers that the message was sponsored by an advertiser.”

and

“It is the advertiser’s responsibility to draw attention to the required disclosures.”

Miscellaneous

A few other notable points included in the newest version of the Dot Com Disclosures:

1. Negative option trials are mentioned by name – and discouraged.
2. The guidelines concerning the use of Endorsements and Testimonials in Advertising (“Endorsement Guidelines”) are still in effect.
3. Disclosures must match the medium of the advertisement. So, if an ad is an online ad, the disclosure must be made online, too; if an ad is a radio ad, the disclosure must be auditory, as well.

If you need to speak with a lawyer who knows and understands the Dot Com Disclosures, get in touch today. Kelly Warner is an Internet law legal practice that has helped swarms of affiliate marketers, online businesses and startups with various FTC and online marketing issues. Hope to hear from you soon.

Gossip and defamation go hand-in-hand. But it’s tough to win a defamation lawsuit — especially for celebrities.

Ever wonder why celebrities rarely sue gossip magazines for defamation? Yes, the lack of celebrity libel lawsuits is in part because the sources for those salacious tid-bits are public relations people. And let us not give in to spin: a lot of the stories are true. But no, the main reason why scandalous tales appear is because it is difficult for a public figure to win a defamation lawsuit in the United States. Why? You are about to find out. We’ll unmask the legal reasons why many celebrities – of both the dubious and legitimate varieties – simply suck in their pride and don’t bother with a lawsuit when untrue stories hit newsstands and the Net.

Let’s Pick A Test Case

In the United States, it’s rare to hear about a celebrity successfully suing a media outlet for defamation. Accountants, landscaper s and doctors usually bear the legal brunt of the glitterati’s litigious urges.

But thankfully for our purposes, Tom Cruise recently decided to go for legal gold and filed a libel suit against Bauer Publishing – the celeb-entertainment pushers behind In Touch and Life & Style magazines. Even more fortuitous for our purposes, the lawsuit is playing out in the public arena — and it is proving to be a master class in defamation law.

For those reasons, we’ll be using Cruise v. Bauer as a case study to explain why it’s so darned difficult for celebrities and public figures to win defamation lawsuits.

Gossip Magazine Defamation Lawsuit: Background

This legal tale begins in 2012 – a few months after Katie Holmes pulled off the baller divorce of the decade by allegedly blindsiding Cruise with “I’m totally ovah this marriage” papers. Human interest media outlets published every succulent morsel of information about the separation; speculation was rampant on gossip websites and TV entertainment shows.

Two magazines under the Bauer Publishing banner – In Touch and Life & Style – ran articles claiming the couple’s daughter, Suri, was “Abandoned by her father” in the wake of the divorce. One of the pieces also opined that Suri was having a “difficult time in the wake of her parents’ split,” and that the “normally sunny Suri has had several tearful episodes while out with Katie recently.” They also said that Suri “[hadn’t] seen her Dad in a month.” Bauer’s claims of alleged emotional neglect were attributed to “sources.”

Cruise’s legal team insists the actor’s camp informed reporters that Cruise spoke to Suri “every day, and often more frequently,” but that Bauer neglected to print those assertions along with the accusations. Bauer says this is untrue. The gossip magazine publisher, however, does admit to receiving a letter from Cruise’s camp, but had a “good faith” belief in the accuracy of their source(s)’ information.

Irate over the allegations, Cruise opted to file a defamation lawsuit against Bauer Publishing. His longtime attorney, Bertram Fields, shot off a comprehensive libel complaint to the media outlet.

Defense Response In Gossip Defamation Lawsuit

Sometimes publishers simply back down when faced with potentially costly and time consuming libel lawsuits. But Bauer decided to fight back. While the news conglomerate admitted to publishing the material in question, and fessed up about using the headline “Suri in Tears, ABANDONED BY HER DAD” as a means of “conventional incidental promotion for the issue,” they adamantly deny any legal wrongdoing.

So, one of the legal eagles at Bauer got down to the business of trying to defend his client against Cruise’s claim.

The attorney who responded to the defamation complaint clearly has sharp libel law chops. In a masterfully written response, the Bauer team outlines over 30 points of contention with the original filing. Regardless of whether or not a judge accepts all the points as accurate, Bauer’s response to Tom Cruise’s celebrity defamation lawsuit is a practical workshop in the nuances of libel law, and how regulations are different for public figures when it comes to defamation. Point by painstaking point, the responding attorney laid out the defendant’s 34-part counter argument. By doing so, the publishing company created a comprehensive study guide that illustrates why it can be an uphill battle for public figures who file libel lawsuits.

Below is a list summary of Bauer publishing’s reply to Tom Cruise’s defamation lawsuit.

STANDARD CIVIL DEFENSES

Cruise’s Complaint Didn’t State a Violation – The Bauer rebuttal begins with a standard defense: “Failed to state a cause of action upon which relief can be granted.” All that means is that the defense is alleging the plaintiff didn’t conclusively state a legal violation in the original complaint. It’s an oft-used argument used in civil litigation. If this battle were taking place on a playground, this argument is basically the same as: “Bobby hit me for no reason!”

The Plaintiff’s Case Isn’t Specific Enough – The Bauer rebuttal includes several claims involving specificity. The publisher argues that the plaintiff did not give enough detail in his filing about the nature of the defamation, which, it argues, makes it impossible to claim defamation. In one section, Bauer alleges that the “Plaintiff’s damages, if any, are vague, uncertain, imaginary, and speculative.” The rebuttal also states that the plaintiff “didn’t plead libel per se or special damages with sufficient particularity.”

Essentially:  DETAILS & DOX or STFU!

Insufficient Knowledge or Information – Another standard defense by the Bauer team was their inclusion of an “insufficient knowledge” claim in their response to Cruise’s claim. By doing so, they’re basically saying: “we don’t have enough information to determine whether or not an allegation or allegations are true; in order to prove that we’re incorrect in our story, the plaintiff must provide evidence of Suri’s mental state at the time of the incident.”

This argument, if accepted, presents an undeniable dilemma for Cruise in this case. If he continues on with the suit, as a result of this claim, he may be forced to disclose personal information about Suri’s state of mind during the divorce debacle – which could lead to a major unearthing of a lot of personal information.

GENERAL DEFAMATION DEFENSES

Constitutional Free Speech Rights – Citing the First and Fourteenth Amendments of the United States Constitution is a popular – and effective – defamation of character defense. If the claim is brought in state court, prosecuting attorneys usually cite any free speech articles or amendments of the jurisdiction’s state constitution. In this case, Bauer used Article 1 Section 2 of the California Constitution.

Truth Is Strong Defense To Defamation – Since 1733, when Andrew Hamilton schooled Sir William Cosby in a lawsuit over an article in the New York Weekly, truth has been a recognized as an absolute defense to defamation in the United States. Back then, Hamilton successfully argued that John Peter Zenger, Editor of the New York Weekly, had a right to publish material critical of the then British governor of New York, Cosby. He won – and subsequently convinced a judge and jury to change the law.

In 2013, Bauer is using the same defense as Hamilton by arguing that some of the statements printed in their magazines are true.

Show Me The Money Harm! – To win a slander or libel lawsuit, it is not enough to say your feelings were hurt. In order to win damages, you must provide evidence of material harm*. In Cruise v. Bauer, the defendant argues the plaintiff “can’t prove he has suffered any compensable damage as a result of the statements.” In other words, Bauer is arguing: Cruise hasn’t lost any money or movie deals because of the Life & Style and In Touch stories, therefore the statements are not defamatory.

*An exception to this is defamation per se. That is when the material in question is of such a vile nature that it’s considered defamatory in it of itself.

Actual Malice: Actual malice is a legal standard unique to United States defamation law. Legally speaking, actual malice is present when a plaintiff in a defamation case knowingly publishes or transmits false information. Under federal statutes – and subsequently in most states – the standard of actual malice must only be met when the plaintiff is a public figure.  The definition of public figure varies from region to region. In some, anybody who is paid by government funds (including teachers) is considered a public figure. In nearly all jurisdictions, however, ubiquitous celebrities (i.e., movie stars, professional athletes, musicians, famous business luminaries, politicians) qualify as public figures.

In some jurisdictions, actual malice can be proven by simply demonstrating gross due diligence neglect, whereas in other jurisdictions, a defendant must prove that the plaintiff knowingly lied with the intention of causing harm.

One way to beat a defamation rap is to demonstrate that you, the defendant, did not act with “actual malice.”

Not Offensive – The original filing charged both defamation and false light. Briefly, defamation deals with reputation, whereas false light has more to do with dignity. Presumably in an attempt to poke holes in the claimant’s false light suggestion, Bauer’s attorney addressed the issue of “offense” and whether or not the material in question would be found highly objectionable by the average person; because if it did not, then the plaintiff would, in theory, lose the argument. This is one of the more subjective aspects of defamation and false light law; after all, one person’s offense may be another’s compliment. As such, jurisdiction and the nature of the judge and jury weigh heavily in cases where in comes down to the offensiveness of a given statement.

We Had Faith In What We Said – Faith isn’t just a religious concept. Defamation lawsuits can be won or lost on the question of honest belief. Meaning, if the defendant can show they had every reason to believe that their source was accurate and the topic at hand would be of “public interest” than it’s possible for the defendant to win. In their response, Bauer argued that their actions were “reasonable, justified and in good faith.”

False Light & Defamation Are The Same Thing Here – In some jurisdictions, false light and defamation are considered so similar that plaintiffs are forbidden to argue both points, as it’s regarded as redundant. Bauer is using the administrative argument in their arsenal against the Cruise camp. Clearly, if the jurisdiction of a lawsuit does allow for both arguments to be presented in tandem, then this defamation defense would not work.

The Statements Made Aren’t Provably False & Some Are Rhetorical Hyperbole – Under U.S. law, in order for a statement to be defamatory, it must be verifiably false. To illustrate: saying some is a jerk is not defamatory, because one can neither prove nor disprove jerky-ness. Everybody has a different opinion on what constitutes jerk-dom. In this case, Bauer argues that some of the material in question is subjective statements, punctuated with a healthy dollop of recognizable (and legal) hyperbole, and therefore not defamatory.

A Reasonable Reader Wouldn’t Take The Headlines Literally – We live in a gossip-hungry world where sensational headlines are as commonplace as iPhones – and Bauer is counting on convincing the powers that be that the average person reader would not come to the same conclusion that Cruise’s claim said they would. Basically, Bauer is arguing that we average Joes and Janes fully understand media sensationalism and would not believe that Cruise actually abandoned his daughter.

Being A Celebrity Has Its Risks, And Celebrities Know That – Attorneys for the defense reasoned that “if plaintiff was harmed, which the Bauer Defendants deny, plaintiff impliedly assumed the risk of that harm.” In other words, every occupation has its ups-and-downs; one of the downs of fame is that you’re a prime target for media outlets that knowingly make abundant use of rhetorical hyperbole. Therefore, as people with free will, celebrities know they’re going to be photographed and discussed, and therefore knowingly assume the risk of being a target of sensationalistic media outlets. Get over it.

The Plaintiff Is The One Bringing Attention To This — Another way to use harm in a defense argument is to argue that any damage caused was a result of the plaintiff bringing additional attention to the matter. Bauer makes this case, opining that damages “were not proximately caused by the defendants.” The respondents also suggest that Cruise “failed to mitigate” his alleged injuries and that “any damages allegedly suffered by plaintiff were the result, in whole or in part, of plaintiff’s own legal fault, and any recovery by plaintiff should be reduced in proportion to plaintiff’s fault.”

Common Law Doctrine Defamation Defenses

Doctrines of Unclean Hands, Laches, Waiver and Estoppel – Lawsuits are often like sports matches, complete with offensive and defensive strategies. One of the more popular plays is arguing the doctrine of unclean hands, or laches, waiver and estoppel. They’re grand sounding doctrines, which are intricate, but the basic premise is this: citing the unclean hands doctrine is the same as saying your opponent acted in bad faith in filing the claim and therefore should not be granted an injunction or monetary award for their complaint. In elementary school speak: “Bobby wasn’t playing fair, so he should not be rewarded!”

Doctrine of Fair Comment — In simple terms, fair comment is a common law defamation defense that aims to guarantee free speech. It’s most often used in cases where a member of the press is being sued for expressing statements on a matter of public interest. Generally speaking, a given truthful statement can be considered a “fair comment” so long as it’s not spiteful and its intent is not harm.

Read More About Fair Comment Here.

Doctrine of Neutral Reportage – Under common law doctrine, in most cases, repeating a defamatory statement is also defamatory. Exceptions, however, exist – amongst the most used being the “neutral reportage” argument. Basically, if a publication distributes a report discussing a given defamatory statement in a neutral manner, they are sometimes let off the hook. In order for the neutral reportage argument to work, though, the material in question is usually must be a matter of public concern and the statements must be as neutral as Switzerland.

Now, in this case, the judge and jury would have to consider whether or not Suri Cruise’s relationship with her father is a matter of public concern – a very interesting legal question in this age of the burgeoning (and highly profitable) celebrity gossip industry.

Incremental Harm Doctrine – If you’re looking for little-used libel defense arguments, put the incremental harm doctrine on your list. Here’s the gist: under U.S. law, the crux to defamation is reputation harm. As such, if a defendant can prove that no additional harm befell the plaintiff as a result of the material in question, then the statement(s) under review cannot be defamatory – or so the logic goes. As explained on LexisNexis:

“If the defendant can show that the publication would have had exactly the same effect on the plaintiff’s reputation had the challenged portion been excised, then the incremental harm defense compels judgment for the defendant.”

The problem with the incremental harm doctrine is that many courts – including the highest in the land – have all but rejected it as a viable option. That said, some state courts still accept and consider the claim. Curiously, California doesn’t seem to have a strong pro IHL precedence – but hey, when you’re fighting the big boys, why not throw in the kitchen sink to see what sticks.

DAMAGE ARGUMENTS FOR DEFAMATION LAWSUITS

After rattling off arguments related to the nature of the comments under review and whether or not said statements were defamatory, the Bauer defense team switches gears and gets into the legality of the types of damages the plaintiff could potentially ask for in a slander or libel lawsuit.

Punitive Damages Should Be Out Of The Question:  Punitive damages are financial awards intended to punish. They’re not based on actual monetary damage caused, but instead are determined by what a judge or jury thinks the defendant should pay to, well, teach them a lesson. In some jurisdictions, punitive damages are not allowed in slander or libel suits involving private citizens. In many, however, punitive damages are allowable in cases involving actual malice.

In this case, Bauer is preemptively arguing that granting punitive damages would “be grossly out of proportion to the alleged wrongful conduct at issue.” The response goes on to suggest that the material under review was “not reprehensible” and therefore not worthy of a financial award. Continuing, the response states that punitive damages would deny Bauer “equal protection under the law” and that doing so violates Bauer’s right to due process. In addition, since celebrity entertainment is a money generating industry in California, the defense cunningly avers that seeking punitive damages in California is moot because “there is no legitimate state interest in punishing the allegedly unlawful conduct…or deterring its possible repletion.” In other words, celebrity gossip is a big revenue generator in this financially struggling state – let’s not unintentionally hinder the market.

Excessive Fines Are Unconstitutional — Many jurisdictions have regulations about awarding obscene amounts of money.  Article 1, Section 17 of the California Constitution addresses the issue of “excessive fines.”  In this lawsuit, the defendant argues that requested exemplary damages would unfairly burden Bauer and postulates the award would qualify as an “excessive fine.”

TL;DR: It’s Difficult For Public Figures To Win Defamation Lawsuits, But Not Impossible

And there you have it. If you’ve made it this far, hopefully we’ve done an adequate job of explaining why celebrity defamation lawsuits can be difficult to win. The operative word in that sentence is “difficult” – for while it may be hard for a public figure plaintiff to emerge victorious in a slander or libel lawsuit, it’s not impossible.

If you are dealing with a defamation crisis and are considered a “public figure” under the law (which could be as little as being a public school teacher in some jurisdictions), contact Kelly Warner law. We are a legal practice that focuses in slander and libel litigation, our track record is a point of pride, and we’d like to help you in any way we can. Get in touch today to begin the conversation.

In the meantime, be careful what you publish people – while free speech is a right we all enjoy in the good ‘ole USA, there are limits – and defamation is one of the biggest.

Sources:

www.scribd.com/doc/117124616/Bauer

http://todayentertainment.today.com/_news/2013/02/15/16974461-suri-cruises-mental-state-up-for-discussion-in-tom-cruise-defamation-lawsuit?lite

New Android App allows users to report advertising texts directly to the FTC

Attention Mobile Marketers: A new Android app called PrivacyStar alerts the Federal Trade Commission of questionable “text-vertising” campaigns. Yep, you read that right: the small but powerful program allows users to file a formal FTC complaint with the tap of a finger. So, if texting is one of your current mobile marketing methods, be aware that users can now easily alert officials if they think your advertising texts are unsolicited SPAM.

Bottom line: it’s a good time to review your mobile marketing process to make sure it doesn’t cross the legal line.

From CNN:

Fighting text spam got easier by leaps and bounds on Wednesday when Android app PrivacyStar added a free-to-use feature, which will help users file formal complaints with the Federal Trade Commission directly from their smartphones.

What Mobile Marketers Should Do To Evade The Federal Trade Commission’s Wrath:

1. Read and follow all the rules outlined in the Dot Com Disclosures.
2. Enlist an Internet law attorney to do an audit of your marketing plan to double check that you’re operating on the right side of the law.
3. Read about recent FTC investigations to ensure you’re not engaging in the same activities that are landing others in the legal hot seat.

The Golden Rule For Mobile Marketing

These days, devices are a dime a dozen. They come in all shapes and sizes, colors and weights. The proliferation of hand-held computers and smartphones has also led to the proliferation of mobile marketing. But as we all know from personal experience, users don’t dig advertisements that pop-up, beep, shout and slow down a system; users especially dislike incessant mobile ads and SPAM. So, here’s the golden rule every mobile marketer should consider:

Try Not To Annoy, Don’t Trick People Into Signing Up and Don’t Lie!

If you follow these three simple rules, your advertising plan is probably on the right side of mobile marketing law. If you want to make sure, contact the online marketing lawyers at Kelly / Warner Law — we’ll do a comprehensive audit of your mobile marketing plan to make sure the FTC doesn’t come a-knocking.

McKee v. Laurion: Online Defamation of Character Lawsuit

The McKee v. Laurion cyber libel war began in 2010. Laurion’s father was a patient at St. Luke’s Hospital in Duluth, MN. McKee was the attending physician. Suffice it to say, the two men did not get along.

Laurion contended McKee was rude to his father and made inappropriate quips about dying. The patient’s son also said one of the nurses called McKee a “real tool.”

Dennis Laurion won the first round of the online defamation legal war, but an appeals court ruled in favor of Dr. McKee. The State Supreme Court, however, put the matter to rest by reversing the appeals court decision, siding with the defendant.

Why The Supreme Court Ruled In Favor Of The Defendant, Laurion, In This Defamation of Character Case

In the majority opinion, Justice Alan Page explained that Laurion was operating well within his First Amendment rights. Page also addressed if calling someone a tool could be defamatory; he ruled that the commonplace colloquialism, though disparaging, is pure opinion since there is no way to measure “tool-ness.”

Opinion is Not Defamation of Character

Hop on any Internet forum and you come across a know-it-all who cries slander anytime someone shares a dissenting opinion. They’re wrong. First of all, slander is spoken defamation; so by definition, a comment typed on a webpage cannot be slander. Libel, yes; slander, no. Secondly, in the United States, opinion is not defamatory. Thanks to the First Amendment, free speech is the law of that land, and that means being able to communicate our views publicly – no matter how offensive. In order for an online comment to be defamatory, at the minimum it must:

1. Cause harm to the subject of the statement – usually a person or a business
2. Be provably false

In addition, depending on whether or not the plaintiff is a public figure or a private citizen, in order to win a defamation lawsuit, the claimant must successfully argue either actual malice or negligence.

The Preface ‘In My Opinion’ Won’t Necessarily Save You From A Defamation Loss, Though

Many people think couching every statement in qualifiers eliminates the possibility of losing a defamation suit (i.e., In my humble opinion, John Doe stole money from the school district). Those people are wrong. A false statement of fact is a false statement of fact, even if you attach a qualifier. You can be forced into bankruptcy, brought on by lawsuit damages, over a blog post that crosses the line – even in the free speech-loving United States.

State Slander & Libel Laws Differ

While federal defamation statutes take precedence, each state has their own set of defamation rules and regulations. Some states acknowledge defamation per se, while others do not. In some jurisdictions, the defamation statute of limitations is 1 year, and in others it’s 3. If you are a journalist or blogger, review the defamation laws in your state. After all, it’s better to be safe than sorry.

If you’re a blogger or online business person in need of a defamation attorney, get in touch today. Kelly / Warner is a top-rated online defamation law firm with considerable experience in the field. We’ll guide you right.