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:
- 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.
- 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.
- 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.
Yelp Defamation Lobbyist Now On The Hill: Online Review Company Hires A Lobbyist To Plead Their Libel Case On Capitol Hill
While Yelp can serve as an effective, low-cost marketing tool for businesses, it can also be a hot-bed of defamation. Not only do business competitors post damaging reviews on nemesis’ pages, but oftentimes, disgruntled customers take their aggression out via Yelp! And truth be told, some people mess with pages just for the sport of it.
As a result of all the Yelp defamation, the site spends a lot of resources dealing with online libel cases birthed on their platform. So, what do profitable corporations do when they’re in doubt? Why, hire a lobbyist, of course!
Yelp enlisted the help of Laurent Crenshaw. He registered his lobbyist papers at the end of 2013 – and according to records, it appears he will be concentrating on patent reform and online libel issues.
What are Crenshaw’s credentials? A former legislative director for Darrell Issa, it’s a safe guess that he already has the right ties. And since California is one of the most tech-friendly states, Crenshaw is more than likely an expert on relevant issues.
Courts Rules For Plaintiff In Yelp Defamation Case; Website Must Reveal Info About Anonymous Posters
A landmark Yelp defamation case recently made news in Virginia. In short, a business owner successfully compelled the court to make Yelp hand over identifying information about 7 anonymous Yelp users whom he thinks committed an egregious act of defamation via the online review platform.
Though a lower court disagreed, Hadeed’s team was able to convince the appeals court judges that, in a defamation lawsuit against the anonymous posters, their client would be able to prove that the would-be defendants had never been Hadeed Carpet customers. Cleverly, during the hearing, lawyers for the plaintiff successfully reasoned that a single individual may be responsible for all of the online criticism since it’s not uncommon for one person to have multiple IP addresses (e.g., phone, desktop, laptop, tablet, et cetera).
Yelp was not pleased with the appeals court’s ruling. A spokesperson for the company explained:
“We are disappointed that the Virginia Court of Appeals has issued a ruling that fails to adequately protect free speech rights on the internet, and which allows businesses to seek personal details about website users — without any evidence of wrongdoing — in efforts to silence online critics,” Yelp spokesman Vince Sollitto said in a statement. “Other states require that plaintiffs lay out actual facts before such information is allowed to be obtained, and have adopted strong protections in order to prevent online speech from being stifled by those upset with what has been said. We continue to urge Virginia to do the same.”
Yelp Defamation Lawsuits Ends In Stalemate
In another headline-making Yelp defamation case, a jury decided that a contractor and homeowner defamed each other. Jane Perez had hired Chris Dietz to do work on her house. Unpleased with his efforts, Perez left a scathing review on Dietz’s Yelp page. Long story short, Dietz sued Perez for online libel. Not being able to reach a settlement, the case went to trial. Both sides pled their cases, the jury deliberated for several hours, and in the end the 12 men and women decided that Perez defamed Dietz and vice versa. Since both were at fault, the jury also didn’t award any damages to either party. Presumably, both had to pay their respective attorneys, and that was that.
Yelp Defamation Lawyers
Has your business been disparaged on Yelp or another online review website? Has the bad press hurt your bottom line? Do you want to speak with a Yelp defamation lawyer about your options? If yes, contact Kelly Warner Law today. Our track record is impressive, and we’ve successfully handled numerous Yelp defamation cases to our clients’ satisfaction. Don’t wait. The longer you take to clean up the mess, the more financial damage it can do. Contact Kelly Warner’s libel law team now.
Cheryl Sanders’ didn’t want a cookie-cutter wig. Oh no, no! She wanted a custom-made coif. So when a non-bespoke hairpiece showed up at her house, Sanders told FedEx to return the wig to sender. FedEx tried, but the sender refused it.
If this were a Friday night real-life crime show, a dapper reporter would saunter onto the screen right about now and say something like: “And though nobody could have known, the refusal of the wig launched one of the most contentious business defamation lawsuits in recent memory.”
[Resume Image Montage]
Now, of course this is not the most contentious business defamation lawsuit in recent memory (they always exaggerate on real-life crime shows!). It is, however, a classic case of a merchant v. customer disagreement that devolves into an online pissing match, which ultimately crosses the libel line. And these days, with the rise of review sites, the tale is becoming oh too common.
How This Merchant v. Customer Business Defamation Lawsuit Began
Cheryl Sanders bought her mother, who was battling breast cancer, a wig from Constance Walsh’s shop, Wiggin Out. When Sanders inquired into the provenance of a particular hairpiece, Walsh allegedly assured Sanders it was a custom-made wig. Perhaps the older Mrs. Sanders saw someone rocking her exact doo at a retirement party, a confirmation or a bat mitzvah – but somehow the Sanders ladies discovered the wig was not custom and tried to refuse the hair by FedEx-ing it back to Walsh at Wiggin Out.
After an Initial Disagreement Over Quality and Cash, Parties End Up In Small Claims Court
To make a long story short, Walsh took Sanders to small claims court over non-payment for the wig. The wigmaker lost because the judge said Sanders’ attempt to return the item inoculated her from having to pay for the wig. (The assumption being that Wigging Out must’ve had a return policy that Sanders honored.)
Advantage, Customer. Cue the Anonymous RipOff Report Trash Talk
Two months after small claims court, Walsh logged on to RipOff Report and penned a rebuttal to Sanders’ criticism. Prefacing each paragraph with the word “Fact:”, Walsh delineated her version of the merchant v. customer saga. She also accused Sanders of fabricating the infamous FedEx return slip.
Several months after the RipOff Report posting, an anonymous person arrived on Yelp and accused Sanders of city corruption. You see, Sanders works for Anaheim’s public utilities department. And according to the unknown Yelper, Sanders had a hand in picking government contractors and accused her of abusing that responsibility. According to Sanders, though, her department has nothing to do with picking contractors.
Oh Yeah, Merchant!? Get Ready For An Online Business Defamation Lawsuit
Judging from available media reports, Cheryl Sanders must have suspected Walsh as the trash-talking Yelper, because Sanders sued Walsh for cyber libel after the posting. And apparently, Sanders did not mess around when it came to building her case, going so far as to hire a digital forensic specialist to investigate the source of the anonymous, libelous Yelp posting. Low and behold, the specialist came back with data, and it pointed to Walsh and Wigging out.
When confronted with the lawsuit and information, Walsh originally admitted to penning the rebuttal on RipOffReport.com, but denied authoring the anonymous posts on Yelp. After being confronted with Sanders’ expert’s information, however, Walsh finally fessed up and switched her defense from “it wasn’t me” to “everyone knows that reviews sites are people’s opinions, not fact, so my comments on Yelp weren’t defamatory.”
Judge Sides With Customer In This Business Defamation Lawsuit
Unfortunately for Walsh, the judge didn’t see things her way. Bluntly stated, he was not impressed with her arguments and ultimately reasoned that the wig peddler was hostile, malicious in her actions, and as such ordered her to shell out 24K to Sanders for attorney’s fees and other process-related costs.
Predictably, Walsh isn’t thrilled with the verdict. Like an Oz inmate stuck on innocence, when asked for reactions after the ruling, Walsh’s attorney insisted that this business defamation case would have turned out much differently if only he’d been allowed to enter evidence from the small claims case.
Speak With A Business Defamation Attorney Today
Are you embroiled in a contentious defamation lawsuit? Do you want to speak with an attorney well-versed in slander and libel law? If so, contact Kelly Warner Law. Our dedicated team of defamation attorneys has helped many clients through, what can be, an extremely frustrating time. We know how to make things right. Get in touch today.
“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.
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.
- Processing credit card payments;
- Serving advertisements;
- Conducting contests or surveys;
- Product and customer demo analysis;
- Shipping; and
- Customer relation management.
They also reserve the right to:
- Allow third party ad servers to “employ cookies and action tags to measure advertising effectiveness.”
- 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:
- If you breech any provisions of the TOS or DBP anti-spam policy.
- Protect the integrity and stability of the applicable domain name registry.
- Comply with any subpoenas, court orders or requests from law enforcement.
- Comply with UDRP.
- “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.”
- 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:”
- Appeal to prurient interests;
- Defame, embarrass, harm, abuse threaten or harass third parties;
- Violate laws;
- Promote hate crimes, terrorism and child pornography;
- Promote vulgar, obscene, invasive, privacy, racially, ethically or otherwise objectionable;
- Harm minors in any way;
- 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?
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.
First it was Reddit v. Digg, now it’s Reddit v. Gawker. Over the past several weeks, the two websites have been at war over an online privacy kerfuffle. Redditors are upset that a Gawker author outed the identity of a redditor who actively participated in a section on the website called “jailbait”; the folks over at Gawker are upset that Reddit has some questionable sub-sections, like “jailbait.” And now a lot of people are asking “is doxing illegal?”
r/Jailbait and r/creepshots: Online Privacy v. Fighting Misogyny
The question of what constitutes free speech on the Internet is a hotly debated topic. And for Web platforms that rely on user generated content, it’s a tough call. On the one hand, no respectable platform wants to be associated with certain undesirable communities – like ones that take scandalous pictures of unsuspecting women and then post them online (r/creepshots). But on the other hand, free speech is a slippery slope. As such, many websites have to draw a sometimes uncomfortable line: so long as content is not technically illegal, it gets to stay.
Since, according to available reports, no women under the age of 18 were ever found to be posted on reddit’s r/jailbait thread, then the participants didn’t technically break the law. The legality of the creepshots section was a little less clear. For a while, Reddit stuck to a “free speech is free speech, even the stuff we don’t like” stance. But eventually, the community’s opinion won out and both r/’s were closed.
But then a journalist for Gawker decided that shutting down the sections wasn’t enough punishment, did some investigating, and published the name of the jailbait moderator, calling him “the biggest troll on the Web.”
Redditors Don’t Take Kindly To “Doxxing”
The Gawker author committed a cardinal Reddit sin: “doxing.” Doxing is when you out a person, who uses an online alias, on the Internet. Many redditors view doxing as a dangerous form of vigilante justice. More than that, the platform has always taken pride in being a “safe haven for anonymous users.” Doxing doesn’t mix well with those ideals.
To show their displeasure with Gawker, many Reddit moderators have banned Gawker links – and the battle is playing out on tech blogs and websites across the globe.
Is Doxing Illegal?
Wondering if doxing is illegal? Well, there is no simple answer. Each situation is different. For example, doxing can result in a messy lawsuit if the name of the person released is wrong. The person who makes that kind of mistake can take it to the bank that they’ll be slapped with a defamation lawsuit.
In this instance, however, a retired FBI agent told CBS News that neither party engaged in illegal acts.
Need to speak with an attorney that deals in Internet law matters? Contact Aaron Kelly.
A recently filed New York defamation lawsuit has a group of pro-wind farming advocates battling it out against two bloggers. The plaintiffs allege the bloggers ruined their reputations; two claimants aver the bloggers cost them the local elections. What caused the stir? If you believe the petitioners, their good names were disparaged thanks to the defendants’ accusations of voter interference.
The two main plaintiffs – Marty T. Mason and Donald J. Mason – are pro-wind development advocates. The two Masons claim the bloggers’ fodder cost them dearly in the town council elections. The other plaintiffs include Gary J. King, Harvey J. White, Paul C. Mason, Darrell and Marlene Burton and Frank J. Giaquinto. The two defendants are Richard C. Wiley, Sr. and Kathryn A. Hludzenski, authors of jeffersonleaningleft.blogspot.com and pandorasboxofrocks.blogspot.com, respectively. There are also plans to file for subpoenas so anonymous posters can also be added to the lawsuit as defendants.
Since Marty T. Mason and Donald J. Mason were running for public office, they’re considered “public figures.” In addition, since the statements under review dealt with an election, the subject matter will most likely be ruled a matter of public concern. As such, the plaintiffs will have to prove actual malice in order to emerge victorious in this lawsuit.
In the filing, several statements were cited as defamatory. Below is an analysis of each of those statements and what the plaintiffs will have to prove in order for them to be considered defamatory under United States law.
“[M]en of substandard character” – In it of itself, while this certainly isn’t a kind statement, it also probably wouldn’t be considered defamation in a court of law. Saying someone has an unsavory character is opinion since everyone has a different standard as to what constitutes a “good” character. Opinion is protected under the First Amendment More than that, in order for a statement to be found defamatory, it must be provably false.
“[D]eployed a desperate attempt to strip citizens of their fundamental right to vote” – This statement could go either way and largely depends on the preceding and post content. If the bloggers explained what “desperate attempt” was made, and the described attempt is false, but stated as fact, then a judge may rule it defamatory. Otherwise, it could very well be considered opinion and therefore not defamatory.
“[C]learly demonstrate that [they] are not fit to serve in any capacity in our local government” – Alone, this statement is not defamatory. Any individual can have an opinion as to why they don’t believe a given person is “not fit to serve” in the “local government.”
“[W]anted to deny citizens in our community a choice” – Pontificating on a politicians’ possible motives is nearly an American tradition. Think about all of the political presidential campaign ads you’ve been subjected to over the past several months. Nearly all of them make accusations against their opponent. It’s not defamation; it’s the sport of politics.
“ [A]ttempted to take the right away from people to be voters against wind” – This is another example of a statement that could be considered defamatory if the surrounding content leads the reader to believe that the defendants committed a certain act that legitimately infringed on citizens’ rights. If the action described is false, then the statement would probably be considered defamatory. This statement on its own, however, could be labeled an opinion. After all, how many times have you heard one political party accuse the other of trying to mess with voter registration and rights? Remember, it’s not illegal to publish a theory if it relates to a matter of public concern.
“[I]ntimidating or exacting retribution against those people that have either registered to vote in Cape Vincent or changed their primary residence in order to vote in Cape Vincent.” – While a judge could rule either way, I think it’s safe to say that this would be considered a defamatory statement. “Exacting retribution” is a strong phrase that inherently implies action. Moreover, they are directly alleging that some of the defendants moved for the sole purpose of “gaming” the system. If, however, the accused can prove they moved for other reasons (which really wouldn’t be the difficult) then the defendants lose on this one.
“[I]nterested in personal financial gain over what is right for their community” – Again, this opinion would not be considered defamatory in it of itself. Voicing your general opinion about someone’s motives — especially when in reference to someone running for office – does not pass the defamation test.
“[T]ried to shut up anybody who disagreed with them at public meetings” – Here we have another example of a statement that would be dependent on surrounding text.
“[E]ven holding secret meetings and lying about them did not work.” – If the plaintiff’s did not hold secret meetings, then there is a strong argument for this statement being defamatory.
“[T]he corrupt government is gone” – Pure opinion. Think of it this way: most committed Republicans think the current administration is corrupt, and most staunch Democrats thought George W. Bush’s administration was corrupt.
“[H]elped pass a petition which made false claims about voter fraud and STAR double-dipping” – Again we have an example of a squarely defamatory statement if, indeed, it is false. However, the plaintiffs would have to delineate how this accusation materially damaged their reputations.
“[L]ied to some of the people about how their signature was going to be use(d)” – Accusing another individual of lying to constituents is defamatory if the person accused did not lie. Furthermore, if the accused never took part in collecting signatures or never talked to people about how their signatures would be used, this would fall squarely in the defamatory square.
“[L]ied, misled, intimidated and otherwise violated the fundamental rights of the citizens of Cape Vincent through their civic activities.” – There is a strong argument for the defamatory nature of this statement. There’s also a strong argument that it is an opinion. This is the type of statement that hinges on good lawyering.
Now, the above analysis can’t be 100% trusted. After all, other contributing factors in the case may affect whether or not the above statements would or would not be considered defamatory. That being said, if you’re considering suing for defamation, it’s important to remember that the foundation of defamation law in the United States is clear: opinion is protected speech.
FTC Guidelines For Online Testimonials
It’s a common question: Can I get in trouble for using fake testimonials? What about paid testimonials without proper disclosures? The simple answer is, “Yes”. However, there are ways to legally include reviews and testimonials on a website; you just have to know what needs to surround the content. Below, we’ll go over the basics of false advertising under United States law, review a few fake and paid testimonial case studies, and then conclude with a brief discussion about international considerations.
The FTC In Twenty Seconds
If you reside in the United States (or court customers in the United States), the Federal Trade Commission is the government body of which you should be most aware. The FTC is the regulatory agency tasked with prohibiting “unfair and deceptive acts or practices in commerce.” They’re also the authors of the Dot Com Disclosures (a.k.a., The Online Marketers’ Bible). If you’re going to land in legal quicksand as a result of fake testimonials or false advertising, there’s a 99% chance that the people doing the prosecuting with be the FTC.
What Constitutes False Advertising in the United States?
U.S. law codifies false advertising as:
“a means of advertisement other than labeling, which is misleading in a material respect; and in determining whether an advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.”
In other words, false advertising in the United States is not just about the actual aspects of a given ad; regulations also consider missing information and how omitted material can lead to consumer deception.
What the FTC says About Disclosing Ads on Twitter
“The FTC isn’t mandating the specific wording of disclosures. However, the same general principle – that people have the information they need to evaluate sponsored statements – applies across the board, regardless of the advertising medium. A hashtag like “#paid ad” uses only 8 characters. Shorter hashtags – like “#paid” and “#ad” – also might be effective.”
The overall impression a marketing piece conveys is important in the eyes of U.S. regulators. While one statement may not, by itself, get you in trouble, the combination of the statements, images, and claims may be considered deceptive when looked at as a whole. So why is this important? Well, the excuse “I didn’t mean it that way” doesn’t matter any more, and will not convince regulatory agencies to cut your a break.
For example, the overall impression that landed marketers in hot water for hocking Acai was the claim that they could lose weight without diet and exercise, that they could burn fat easily, that they could feel more energized, that they lost XX amount of weight in a week, and then showed before and after stock photos of dramatic weight loss. Any of these aren’t necessarily problematic alone, but taken together they give the overall impression that if you took Acai you could sit at home and lose 10 pounds while eating a tub of butter and watching Dr. Oz reruns. That just doesn’t work anymore.
Does The FTC Consider Fake & Paid Testimonials Illegal?
The FTC released a set of “common sense” guidelines when it comes to online advertising. The commission lays out the main foundations of the guideline as such:
- Endorsements must be truthful and not misleading.
- If the advertiser doesn’t have proof that the endorser’s experience represents what consumers will achieve by using the product, the ad must clearly and conspicuously disclose the generally expected results in the depicted circumstances.
If there’s a connection between the endorser and the marketer of the product that would affect how people evaluate the endorsement, it should be disclosed. It’s common sense to think that if someone is paid to provide a particular statement, they may be biased and the FTC wants to make sure that people understand that.
If we apply the above points, it’s safe to argue that the one cut-and-dry rule of online testimonials and reviews is that if it’s 100% fake (i.e., you make up a fake news reporter, complete with a picture you pulled off Google images, who claims to have tried the product and lost a significant amount of weight), then it is not compliant. Same thing goes for any paid testimonials if they are not properly disclosed – paid being defined as any material exchange for a positive review.
Here’s another example: you cannot give someone free hosting for a positive testimonial about your new software and not mention that fact in the review. Now, let’s say you have three friends named Jane, John, and Jackie. If each of them uses your software, and writes an unsolicited positive review, then it’s legal. It’s best, though, not to include unsolicited testimonials from family members.
An FTC spokesperson explained, “While decisions will be reached on a case-by-case basis, the online post by a person connected to the seller, or someone who receives cash or in-kind payment to review a product or service, should disclose the material connection the reviewer shares with the seller of the product or service.”
|Lifestyle Lift – 2009||Employees wrote positive reviews of the company and were instructed to do so; emails found by the AG’s office proved that employees were instructed to write anonymous reviews in the voice of satisfied customers.||Settled with the NY AG’s office for $300,000; Andrew Cuomo , the AG at the time, said that the “attempt to generate business by duping consumers was cynical, manipulative and illegal.”|
|Reverb Communications – 2010||Paid for positive reviews on iTunes.||Had to delete all paid testimonials and agreed not to do it anymore. Didn’t have to pay, as reverb was one of the first to be brought up on charges after the 2009 FTC guideline changes for online testimonials.|
|Acai Berry Debacle – 2011||Niche market where many affiliates set up “fake news” websites with fake customer testimonials.||FTC launched national crack-down on the activity; froze accounts of affiliate marketers; clearly stated their position that hawking acai berries with fake reviews would result in legal troubles and fines.|
So, Be Straight, Can I Legally Get Away With Fake Testimonials If I have a Nearby Link to a Disclaimer?
You’re crafty, so you may be thinking, “can’t I just pay someone for a testimonial, and then put them up on my website, and then simply have a disclaimer in the site’s terms of service – which nobody reads anyway?” While having a link disclaimer may protect in some areas, the FTC has hammered home the point that a link to a disclosure that all your testimonials are paid is insufficient.
Proper disclosure dictates both clear and conspicuous disclaimers within close proximity of the statement being made. So using before and after photos of someone who was paid, along with their statement, but burying the “disclaimer” in the footer won’t cut it.
To comply, you should put the disclaimers in close proximity to the content being annotated. You cannot make the text a similar color to the background; the word must be readable without squinting. If the FTC deems that a “significant minority” of the population would not be able to clearly make out the word, it’s considered not in legal compliance. Any other disclaimers you may have can be at the bottom but as long as the person is giving the opportunity to read them and they stand out (use bold and all caps for the heading).
Lastly, we regularly see people utilizing paid testimonials from fiverr. Be careful. While you may think that your properly disclosed “paid” video testimonial from a “real” person on fiverr is compliant, be warned that unless the person has actually used the product in question you’re just toeing that line. A testimonial from a person who is not actually a bona fide user of the product, but is making claims about it, may land both you and that person in trouble. It is, however, a legal gray area if the person is a bona fide, actual user, of the product and is making statements about their actual experiences of the product (so long as you disclose this fact). Nonetheless, you should still only use actual users of the product who have signed testimonial affidavits and where you have made proper disclosures.
If you market to consumers outside of the United States, it’s important to comply with various international standards – especially in the EU. For example, in the United Kingdom, “falsely representing oneself as a consumer” is listed as one of the 22 prohibitions in the “Consumer Protection From Unfair Trading” regulations. If breeched, perpetrators can be fined up to £5000 or a jail sentence of up to two years in some instances.
Another type of law to look out for in various countries are “monetary advantage by deception” rules.
Making sure that you’re online marketing efforts are compliant should be a top priority of anybody doing business online – -whether you’re an affiliate marketer, a brick-and-mortar business owner with a Web presence, a startup, or an Internet entrepreneur. Contact the online marketing lawyers at Kelly / Warner today to arrange a consultation.
Teacher blogging is becoming more popular, but is it legally dangerous for educators to indulge in the act?
Part of our societal contract is to provide a public education system. And in said system, we tend to favor affable teachers who understand — and enjoy working with — young people. As such, where does our allegiance land when a public educator maintains a semi-anonymous blog, wherein they disparage students, parents and school administrators? Does free speech win out over the arguable well-being of the targeted students?
Natalie Munroe, an eleventh grade English teacher in Pennsylvania, found out her community’s answer to that conundrum last month. She was fired.
But Munroe is fighting back in the form of a $5,000,000 federal lawsuit which essentially asks:
- Is free speech more important than a student’s right to a positive, unbiased and encouraging teacher?
- Are teachers legally obligated to refrain from blogging about students?
- Do educators have a moral obligation not to disparage students online?
Teacher Natalie Munroe’s Blog: Catalyst for the First Amendment Lawsuit
The fracas started over Munroe’s blog entitled “Where are we going, and why are we in this Handbasket?” Munroe’s lawsuit maintains the blog was “anonymous” even though it included pictures of the teacher. She also blogged under the name, Natalie M. – a pen-name that doesn’t do much to obfuscate her real name, Natalie Munroe. Nevertheless, Munroe insists it was meant to be a private blog, which only her friends and family were invited to follow. It was, however, publicly indexed; as such, even if people weren’t invited to follow, it could be found via a search engine.
Like many blogs, Munroe’s was often used as an outlet to vent her daily frustrations. Being a high school teacher, those frustrations included her students, parents and superiors. At times she stuck to fairly innocuous quips about her students and called them “out of control;” at other times, she arguably went for the jugular and opted for phrases like “dunderheads,” “frightfully dim” and “utterly loathsome.” Munroe once declared that one of her students was “a complete and utter jerk in all ways.” Natalie M. also lamented about “canned report card responses” and wished that she could put “dresses like a streetwalker” on a few of her students’ quarterly grade analyses.
Teacher Blogging: Munroe v. Central Bucks School District
Word got out that “Handbasket” was the work of Natalie Munroe and within a few months she got her walking papers. The tenured teacher believes her blog is to blame for the firing, while school officials insist it has more to do with “poor performance.”
Munroe filed a “First Amendment Retaliation case” on June 21, 2012 in federal court alleging her firing violated her first amendment rights. Named defendants include the Central Bucks School District, the superintendent and the principal of her school. Munroe is asking for reinstatement, back pay and front pay, in addition to punitive damages related to civil rights violations, emotional distress and reputation damage – a package totaling $5 million dollars.
Public Education v. The Internet: Striking the Right Jurisdictional Balance When It Comes To Teacher Blogging
Munroe’s case is intriguing because of the questions it raises about the intersection of public education, digital technology and the law. As the world we live in becomes more digitized, what legislative and societal rules should be adapted to ensure both personal freedoms and a healthy learning environment for the “next generation”?
Should teachers be censured for lambasting their students online? If a teacher is going to maintain a blog about their students, should statutes exist to ensure it’s not publicly searchable — for student privacy right reasons? Do parents have the right to demand that a demeaning teacher be removed? If so, where is the law-line drawn?
Blogging teachers aren’t the only issue involving Internet law and the public school system. In fact, many states are in the process of examining cyber bullying legislation and deciding whether or not schools can enact punishments for cyber harassment that occurs off campus.
The more we integrate the Internet into our lives, the more gray-area Internet law implications will arise. Moreover, it’s likely these issues will involve ethical questions that may force a robust public discourse about online free speech and how it relates to students’ rights versus teacher bloggers.
Is NY’s Internet Protection Act Another Misguided Cyberbully Legislation Attempt?
Not to be outdone by their cyberbully law-drafting counterparts in Arizona, New York legislators penned a doozy of a cyberbully bill — the Internet Protection Act (IPA).
In a state well known for its forthright citizens, if passed, the Internet Protection Act would not only make it illegal to anonymously harass classmates online (a noble cause), but it would also be illegal to post anonymous disparaging diatribes about state politicians or local businesses (a shady cause).
How New York’s Internet Protection Act (IPA) Would Work
Originally authored by New York District 10 Assemblyman Jim Conte, the primary goal of the Internet Protection Act is to combat cyberbullying. But like other bills promoted as cyberbullying legislation, the IPA goes too far in attempting to rectify the problem.
In short, New York’s proposed Internet Protection Act outlines a process wherein those who are bullied (and presumably defamed) online can take action to remove the material. The bill, however, only applies to anonymous comments.
As currently written, the IPA would allow victims to contact a site where offensive material is posted and demand that the person making the comment attach their name to the statement. If the original poster doesn’t comply, the website, under the IPA, would be forced to remove the content.
Online Business Reviews and Political Rants Would Also Be Curbed Under New York’s Internet Protection Act
But Conte’s bill doesn’t stop at cyberbullying. In addition to its underage-stalking aspect, the IPA also includes language that aims to protect elected officials from “mean spirited and baseless political attacks.” An arguably thought provoking addition considering that Conte was quoted as attributing New York’s near Republican sweep in the 2010 elections to the fact that the party had “had no scandals and [were] getting the job done.” Though, the public can’t know about any scandals if none are broached – and the first step in silencing critics is enacting semi-Draconian Internet conduct laws. (Both Parties are equally guilty.)
In addition to cyberbullying and safeguards for politicians, business owners will be pleased to learn that the IPA also aims to stamp out online trade libel. If passed, the IPA will afford business owners the same “name reveal” protections as online bullying victims. Supporters of the bill argue this measure will help ensure that only real customers – not competitors – are the only people posting Internet evaluations.
What Constitutional Scholars And Internet Lawyers Are Saying About NY’s Proposed Internet Protection Act: “Hey New York, Remember Your American History!”
Kevin Bankston – an attorney with the Center for Democracy and Technology – said it best when he dubbed New York’s proposed Internet conduct law “a heckler’s veto.” Many reporters, like David Kravets at Wired, reminded the “Federalist Papers” may never have been distributed, and thus our beloved Constitution never ratified, if laws existed against anonymous speech in our nation’s nascent days.
If passed, the Internet Protection Act would apply to the websites of newspapers based in New York; which means two of the most circulated dailies in the world – the New York Times and The Wall Street Journal – would be subject to this law. An ironic point when you consider the fact that a Supreme Court case involving the New York Times (New York Times, Inc. v. Sullivan) is widely regarded as one of the most important defamation rulings in our nation’s history (it’s the one that made actual malice a standard in defamation lawsuits involving public figures and elected officials).
In short, if gaveled into law, New York’s Internet Protect Action would come dangerously close to infringing on individuals’ free speech rights.
A court case in Indiana has raises an intriguing First Amendment question as it relates to anonymous defamation. In this case, a potentially libelous comment was left by an anonymous user on the Star website. The comment suggested that Jeffrey Miller, the former head of Junior Achievement of Central Indiana, and several of his colleagues had misappropriated funds into their own bank accounts. This comment was posted by a user with the handle “DownWithTheColts.” Now Miller et al. want to sue, but they have no idea who “DownWithTheColts” is.
Although the Star may be able to find identifying information about this individual via his or her IP address (Internet Protocol Address), the publication refused to provide it, citing anonymous speech rights under the First Amendment.
This case calls into question the ability of laws originally created for offline situations to govern or apply to online situations. For example, the judges made an analogy between a website’s comment forum and a physical bulletin board that may exist in a public location. Whether this is a sound analogy, and whether the same laws can govern both situations, is one of the anonymous defamation issues at hand.
Since this case occurred in Indiana, the court must adhere to the state’s “Shield Law.” The Indiana shield law protects a journalistic publication or entity from revealing the identity of its sources. It applies narrowly to professional journalists and traditional media. If the Shield Law applies in this case, it would mean the court cannot legally require Star to provide information regarding the identity of the anonymous commentator. However, whether this law applies at all is one of the matters under review. Is Star’s website an entity covered by the Shield Law, or does the law only apply to print media? And if Shield does apply, is an anonymous comment considered a source?
To that extent, the fact is that Star did not publish information that was based on the information provided by anonymous commentator, DownWithTheColts. Therefore, the individual was not a source to any journalistic ends. Logically, it follows that the Indiana Shield Law does not apply in this case.
Additionally, Star has the ability to moderate comments that are published on the website, which may mean a comment could be considered as an extension to the original article.
The other primary issue in this case is whether or not the comment posted by DownWithTheColts was defamatory. Since constitutional free speech rights don’t apply in cases of defamation, the judges have to agree that the statement was, in fact, defamatory. It also follows that the statement must be proven to be false, since a factual statement is not defamatory.
Upon further review, the judges concluded that the anonymous comment was defamatory. However, Miller also needs to prove it was false. Without this proof, it’s not possible to move forward with a defamation claim. Further, there needs to be some evidence of malice, in regards to the intent of the individual who posted the comment. Since the individual’s identity is not known, it’s not possible to prove whether the intent was malicious. Since proving malice is not possible in this case, the judges modified the requirements so that this detail would not be required in order for Miller to satisfy the requirements and obtain the commentator’s identity.
This case has been sent back to the trial court in order to determine whether all of the necessary requiremenents have been met under the stipulations of the state and federal constitutions. If so, Miller will be able to proceed in finding DownWithTheColts’ identity and Star may have to furnish the IP address and other details of this individual.
A class action, John Doe lawsuit filed late in 2011 should serve as a warning to anybody looking to build an affiliate marketing network without first consulting an Internet lawyer. Online dating business, Positive Singles, is being hauled into court – and could pay handsomely – for allegedly distributing members’ personal data across a network of websites without proper consent.
Online Dating John Doe Lawsuit: The Background
According to a lawsuit filed in Superior Court of the State of California, several users of the website positivesingles.com are suing for allegedly having their private information distributed and misrepresented to a network of websites. The site positivesingles.com is a place where adults with various sexually transmitted diseases can post a dating profile.
Positivesingles.com’s website assures users that they “care about [their] privacy more than other sites” and promise that their profiles are “fully anonymous” and “100% confidential.”
Online Dating John Doe Lawsuit: The Claims
Some members of positivesingles.com, though, claim a different story. Based on the filing, it appears that many users felt their privacy was not protected – evidenced by the fact that their online profiles were spidered to Positive Singles’ vast network of affiliate websites.
Most alarming, the claimants argue, was the fact that many profiles landed, without consent, on websites that misrepresented members’ situations. So, for example: non-Christians who signed up for positivesingles.com landed on chirstiansafehaven.com; others with other STDs and not AIDS landed on AIDSdate.com; straight participants found themselves on gaypozdating.com.
Claimants in the lawsuit are arguing that positivesingles.com is in violation of the Consumers Legal Remedies Act (“CLRA”), California Civil Code § 1750, which regulates unlawful, unfair or fraudulent business practices.
It’s unclear whether or not positivesingles.com posted a terms of service outlining the fact that member profiles would be made available to their entire affiliate marketing network. If yes, the plaintiffs could have a tough time pleading their case. That being said, if there is a terms of service, and the wording is arbitrary or unclear, then positivesingles.com could find themselves paying large damages.
Online Dating John Doe Lawsuit: The Lesson
Positivesingles.com’s current legal fracas should serve as a warning to anybody setting up a large-scale affiliate marketing network.
If your site intends to spider information to numerous sites, make sure that fact is conspicuously spelled out in your policies – it could save you an expensive class action lawsuit down the line.
Most recently, John Doe lawsuits are also being used to go after people allegedly accused of downloading bittorrents of protected material. If you run an affiliate marketing network and are now facing a class action lawsuit, or if you’ve been mailed a “settlement letter” for downloading unauthorized content, contact the Kelly Law Firm. We’ve assisted hundreds with the same dilemma, and know all the ins-and-outs of litigating such cases. You can reach us anytime by using our contact form, or giving us a call at 1-866-570-8585.