Opining about online harassment is the new black. Media outlets – from the respectable to the tawdry – have rhapsodized about cyberbullying’s effect on society, and part of the conversation has focused on a 21st-century phenomenon – “the graphic meme.”
Some folks say memes are a matter of free speech; other people believe they’re noxious forms of cyberbullying. The war rages on – in perpetuity. But for those of you keeping score, Team Regulation recently won a courtroom battle.
Meme Leads To Lawsuit
These days, so-called “memes” are as ubiquitous as Starbucks cafes. Some are funny, some are try-hard, and some are just cruel. The unfortunate part of the “mean meme formula” is that innocent people are turned into “meme-lebrities” by no fault – or force – of their own. It can cause a lot of heartache and damaging consequences. Think about it: would you hire “Sc*mbag Steve”? (OK, OK – YOU would, but other people aren’t as generous.)
Boy and Family Sue Over A Meme
Recently, the parents of a boy with Down syndrome decided to fight back against the Meme Army. Apparently, a picture of their son made its way online, someone got a hold of it, and long story short, within days, the young man’s picture became the backbone of a viral meme. The mocking was ruthless and unrelenting. According to the boy’s parents, the constant barrage of jeering caused their son harm – so, they decided to be legal trailblazers and sued over the offense.
Court Sides With Plaintiff In Meme Lawsuit
When word of the lawsuit first hit, a lot of people assumed a judge would toss the case. But much to the surprise of the proverbial peanut gallery, a judge and jury sided with the boy, to the tune of $150,000.
When asked about the claim, the father explained, “We are in favor of the First Amendment. [But] This is just mean. This is just people being mean.”
Can You Successfully Sue Over A Meme That Features Your Picture?
Does this ruling mean that anyone who unwittingly becomes the central figure in a meme has grounds for a successful lawsuit? No, not really. Maybe, but not really. Like all lawsuits, this case turned on the details – details that happened to work for the plaintiff. That said, the ruling does clear a path for more “meme lawsuits.” People looking to pursue a similar claim should consult with an Internet law attorney.
Does this ruling mean that anyone can sue over a meme? No, not really. Maybe, but not really.
Torts that can, possibly, be used in a “meme lawsuit”:
- Publication of Private Facts / Information
- False Light
- Invasion of Privacy
- Copyright Infringement
- Unauthorized Use of Property
Talk About Your Meme Situation With An Internet Law Attorney
Please understand: there is no guarantee that any of the above torts will work. Viability is based on jurisdiction and case specifics. The best thing to do is talk to a lawyer. He or she will be able to determine the most effective course of action for your specific situation and if you have grounds to sue over a meme.
Interested in speaking to an Internet lawyer about a potential “meme lawsuit”? Contact Internet law attorney, Aaron Kelly.
The Canadian Competition Bureau is an Independent law enforcement agency that monitors Canadian online marketing regulations. The Competition Bureau is responsible for the administration and enforcement of:
- Competition Act
- Consumer Packaging and Labeling Act
- Textile Labeling Act
- Precious Metals Marketing Act
What law governs Canadian online marketing regulations?
Canada’s Competition Act — commonly called C-34 — is the law governing business conduct in Canada including online marketing. C-34 covers both civil and criminal actions.
In general, what does C-34 say about false and misleading advertising online?
C-34 asserts that “any representation in any form, which is false or misleading in a material aspect, is prohibited.” It also states, “A representation is material if it could lead a person to a course of conduct that, on the basis the representation, he or she believes to be advantageous.”
What Canadian online marketing regulations does C-34 address?
The Competition Act addresses issues related to “commercial” websites and email. Though, depending on the circumstances, statements made in chat rooms, news groups and message boards can also fall under the act.
What actions does C-34 prohibit?
Among other things, C-34 prohibits:
- Deceptive telemarketing;
- Pyramid schemes;
- Advertising at bargain price a product not available in reasonable quantities;
- Selling a product at a price above the advertised price;
- Conducting contests, lotteries or games of chance or skill without making fair and adequate disclosure of, among other things, material facts that could affect winning potential.
Canada’s online marketing law also sets parameters for multilevel marketing plans.
What if I put a disclaimer about a product or service on another page of the website? Will that satisfy Canadian online marketing regulations?
C-34 addresses Internet user behavior. In doing so, the law requires that any disclosure information must appear in close proximity to the thing it is annotating. In the language of the Canadian government:
“Businesses should not assume that consumers read an entire website, just as they do not read every word on a printed page. Accordingly, information required to be communicated to consumers to ensure that a representation does not create a false or misleading impression should be presented in such a fashion to make it noticeable and likely to be read.”
Under Canadian online marketing regulations, who is responsible for an advertisement or website in violation of C-34?
According to Canadian law, “The person who has caused the [false or misleading] representation to be made” can be charged under C-34. While everyone involved in a marketing campaign may not be responsible for an ad violation, officials may consider the roles of:
- Ad agencies
- Selling Company
- Media outlets
Officials look at facts on a “case-by-case basis” when determining causation. Ultimately, courts pin the penalty on the entity that controlled the project. For example, if a company hires an advertising agency to create material, the contracting company has the ultimate say on “whether [or not] the campaign proceeds.” As such, the contracting company would be responsible. Hosts and ISPs would not be held responsible under similar circumstances.
What is the Canadian online marketing regulation “publisher’s defense” rule?
Section 74.07 of Canada’s Competition Act outlines the “publisher’s defense.” It states that anybody who “prints or publishes or otherwise disseminates a representation, including an advertisement, on behalf or another person in Canada” is not responsible for any marketing violations. But there is a hitch. In order to successfully evoke the publisher’s defense, an entity must have its client’s address to ensure that the publisher is not simply “acting as a conduit” for the business.
C-34 has a section called “Applying the Competition Act On-Line.” What are the main points?
- General impression and literal meaning are both considered when reviewing an ad for legal action.
- Asterisks are a universally well-known signal of a disclaimer and should be used when possible.
- “A disclaimer can only qualify a representation; it cannot give or retract a false or misleading representation.”
- Ideally, a disclaimer should appear on the same screen and close to the statement it references.
- Writing “see below for eligibility restrictions” is an acceptable way to alert consumers of a related disclaimer; “See below for details” is an unacceptable disclaimer alert.
- Consistency with hyperlinks is important.
- Pop-ups and links to other pages can be used, but each case is examined individually. Basically, don’t be tricky.
- “Hyperlinking a single word or phrase in an advertisement may not be adequate.”
- If you use “attention grabbing tools” for disclaimers you can’t use the same tools in the ad, so as not to distract.
- Disclaimers must not use similar colors as foregrounds and backgrounds.
- Consider how people view and navigate a page and put disclaimers in appropriate places. When fitting, businesses should make clicking through to a disclaimer compulsory.
What disclosures are required according to Canadian online marketing regulations?
Canada’s competition law does not outline each and every disclosure that needs to be made. In some ways the Canadian government expects folks to practice common sense. But C-34 does highlight two types of disclosures that MUST be made:
- Section 55 addresses Multi-level Marketing – Multilevel marketing plans must include disclosures regarding earning potentials.
- Section 74.06 Contests – Entities must disclose “facts which materially affect the chance of winning.” Additionally, “Notice of a contest should not require an extra step, such as sending an email or placing a phone call.” According to the law, clicking on a hyperlink is not considered an “extra step.” “
Do businesses based in other countries have to adhere to Canadian online marketing regulations?
If a website can be accessed in Canada and/or Canadians can purchase the goods on a given website, then said website must adhere to Canadian law. C-34 states: “The [Competition] Bureau will assert Canadian jurisdiction over foreign entities to the fullest extent authorized by law whenever necessary to protect the Canadian market from false or misleading representations and deceptive marketing practices.”
“Since the Internet can’t decipher nation-state borders, must I adhere to Internet law standards in other countries?” It’s an oft-asked question and the answer is “yes”. To tweak a cliche: When in the UK, do as the British. And since national boundaries are non-existent online, your website is, technically, “in the UK,” which means you should take time to review UK online marketing compliance standards. To help you out, below is a list of frequently asked UK online marketing compliance questions — and answers.
What agency monitors UK online marketing compliance?
UK online marketing compliance standards are monitored by a self-regulatory organization called the Advertising Standards Authority (ASA). The group’s stated duty is to “Regulate the content of advertisements, sales promotions and direct marketing in the UK” by investigating “complaints made about ads, sales promotion or direct marketing.” Guy Parker has been the ASA’s chief executive since 2009.
Is the UK ASA a government agency?
No. The ASA cannot interpret or enforce legislation, but the group’s “Code of Advertising Practice” is reflective of UK legislation. However, the ASA is funded by an “advertising tax.”
If a claim is made in an advertisement, what level of proof is necessary to verify the claim’s accuracy?
Like in the United States, claims made in UK advertisements must be accurate and verifiable. UK online marketing compliance rules state that “before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation.”
Is “puffery” or exaggeration allowed under UK online marketing compliance rules?
Puffery and exaggeration are unacceptable according to UK online marketing compliance standards. Official rules state: “No marketing communication should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.”
Does the ASA have authority over online marketing compliance in the United Kingdom?
Since 2011, the ASA has held domain over the following UK online marketing compliance issues:
- Advertisements on websites;
- Paid-for ads on the Internet, including pop-ups, banners and sponsored links;
- Online sales promotion that appears in “British Web Space”;
- Email marketing.
Does the ASA have authority over marketing claims made in personal e-mail messages?
Private electronic correspondences do not fall under the purview of the UK Advertising Standards Authority. Though, some confusion exists as to whether or not the ASA can take action on SMS messages. It’s best to consult an attorney who can review your exact campaign and determine if it crosses a legal line.
Do any other agencies monitor aspects of UK online marketing compliance?
Yes, several. Most online advertisers, however, should concern themselves mainly with the Institute of Sales Promotion and the ASA. The Institute of Sales Promotion follows the same rules as the ASA and alerts the ASA when it believes a breach of sales promotion law has occurred. Examples of sales promotions include:
- By One Get One Free;
- 25% Extra For Free;
- Loyalty Rewards;
- Lotto, scratch cards, prize drawings.
If I want to make a UK online marketing compliance complaint to the ASA, will my identity be kept confidential?
When the ASA receives a grievance, it is required to keep the complainants’ personally identifiable information (PII) private, unless specifically given permission by the claimant. If, however, the complainant is a competitor of, or has a vested interest in, the subject of the complaint, the claimant must agree to be named. This is done to cut down on petty complaints.
What does the ASA do after it receives a complaint?
When the ASA receives a complaint, it immediately informs the entity being investigated. Then, industry experts investigate the claims and ask for substantiation of any questionable assertions in the marketing material. For example, if you are promoting a weight loss product and promise potential customers that they are “Guaranteed To Lose 20 Pounds in 3 Days!” then you’ll have to provide scientific proof to the ASA that your product consistently results in users losing 20 pounds in 3 days.
When the agency completes its investigation, a summary of findings and recommendations is compiled and sent to the advertiser and complainant. A copy of the report is then submitted to the ASA adjudication council, who votes on the issue and posts its decision online.
What if I do not agree with the ASA’s decision? Are appeals possible?
Appeals are possible. A formal request for one must be made within 21 days of the adjudication and can only be requested by the advertiser or complainant. Moreover, appeals can only be sought when:
- New evidence is available;
- One of the parties can elucidate a substantial flaw in ASA adjudication or investigation process during their case.
In the case of an appeal, an independent reviewer often enters the fray. The independent reviewer has final say on whether or not an appeal is accepted.
What actual power does the UK Advertising Standards Authority hold?
Though the ASA is not a part of the government, it does wield certain powers like:
- Bad publicity;
- Copy Control – The ASA can order a brand to have all ads reviewed by CAP (the Copy Advice Team) before publishing;
- CAP Compliance Team Intervention – The CAP compliance team administers ASA mandates. The government department performs various tasks to keep the system moving along smoothly. The CAP compliance team will call media owners and instruct them not to accept certain ads.
- Direct line to Broadcasting Licensing Authorities and the Office of Fair Trading – The Office of Fair Trading has the power to fine businesses and bring lawsuits. The department works closely with the ASA and comes down hard on repeat offenders if the ASA gives the signal. The Office of Fair Trading derives its authority under the 1998 Control of Misleading Advertising Regulations Act.
What are some notable UK marketing compliance cases?
- A 2004 ad for the Apple Power Mac G5 used the phrase “the world’s fastest personal computer.” Since it is a claim that can be proved empirically, the ASA launched an investigation.
- In 2008, the ASA banned an Apple iPhone ad that promised the phone could “access all of the Internet.” Since iPhone did not support Flash — and a host of other major plugins – the ASA forbade Apple from using the terminology.
- The ASA made the Israeli Tourism Board remove ads that contained a map of the country that included the West Bank, Gaza Strip and Golan Heights.
- L’Oreal was forced to stop running ads that included Penelope Cruz, Julia Roberts and Christy Turlington under the premise that the three women were not representative of actual results. Additionally, the ASA decided the ads contained misleading before and after pics.
- Brennan was banned from running an ad for the JB7 music player because the copy supposedly “glorified illegal downloading.” In its report, the ASA reasoned that Brennan “repeatedly made reference to the benefits of the product being able to copy music but did not make it clear that it was illegal to do so without permission of the copyright owner.” Another time Brennan was sanctioned for not making clear that a docking station didn’t come with the device.
- A local furniture store in Northampton couldn’t use the catch phrase, “Sofa King Low” because the line would likely cause “serious widespread offense.”
Do online marketers in the United States have to worry about the UK Advertising Standards Authority?
Yes! If your ads are accessible in “British web space” it’s under the purview of the ASA.
If you need to speak with a U.S. lawyer well-versed in UK online marketing compliance standards, contact us today.
A litigation-happy Chinese national is suing Edward Snowden and the United States. Chan Yuk-lun — who has sued both Japan and the Chinese Electoral Affairs Commission in the past –is now claiming that infamous whistleblower, Edward Snowden, in conjunction with the U.S., defamed China by exposing the PRISM cyber-spying program.
Saying Snowden Was A Spy Hurt China Irrevocably?
Chan Yuk-lun stated in a Chinese High Court that reports of Edward Snowden spying for China constitute defamation. He maintains that stories of Hong Kong’s compromised internet security are responsible for the country’s recent stock market fall. According to Yuk-lun, the reports have caused people to lose confidence in Hong Kong’s market, and since he is a citizen, the defamation of China has harmed him directly.
Yuk-lun insists that Edward Snowdens’ presence in China has brought nothing but negative effects to the country. The outraged defamation plaintiff also feels strongly that Dick Cheney’s and Congressman Mike Rogers’s Chinese Spy assertions have made matters worse.
Chan Yuk-lan: The Patriot Act May Be Legal in the United States, But It Ain’t In China!
Chan Yuk-lun says the United States surveillance of other countries is not legal and constitutes “tort” and “theft” under Chinese libel and slander rules. He believes that even though the United States can legally use surveillance on its’ own soil, these laws do not apply overseas. He is demanding monetary compensation, a public apology and reimbursement of legal fees.
His writ states: “The plaintiff has reasons to believe that some people intentionally or unintentionally connive in their speeches and conduct of personnel under them to impact China’s politics and economic strength.”
The Harm Allegedly Plaguing China Thanks To This “Egregious Act” of International Defamation
In most defamation cases, the plaintiff must prove damage – even under Chinese defamation law. In this case, Chan Yuk-lun argues that the safety of doing business online has been compromised, thereby hindering commerce in Hong Kong and China, which ultimately results in financial harm to him, personally.
“Although the US government boasts that there are stringent mechanisms in place to ensure that private information intercepted will not be used in areas other than for purposes of anti-terrorism,” Yuk-lun opined, “such oral guarantees indeed cannot put people’s minds at ease.”
Yeah. Something tells us this defamation suit will end at the hands of a judge fairly soon. But hey, it just goes to show that sticking your nose in international online politics could result in international legal actions. So, if you plan to indulge in any digital exposing – it’s probably a good idea to have a cyber-libel lawyer on your side.
“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.
International Defamation Subpoenas & Cross-Border Due Process
What happens when a person who has defamed you lives in another country? Can you still sue him or her for libel or slander? How can a subpoena be issued abroad? Will the person who harmed you be subject to an American court’s judgment if he or she is not a U.S. citizen? We’ll go over all these questions – and more – below.
Can You Sue A Person Who Lives In Another Country For Slander or Libel?
Yes. You can sue another person in another country for slander or libel. The trick is picking the proper jurisdiction to file your claim. In many cases, filing abroad is the better option for plaintiffs, because the United States has the most defendant-friendly defamation laws in the world. If filing in a foreign jurisdiction, you can use a U.S.- based attorney to handle the case. That said, you will need foreign counsel as well, unless the U.S. attorney is authorized to practice law in the defendant’s country. Ultimately, it’s best to find one who has experience with cross-border defamation litigation.
That said, in order to file a defamation lawsuit in another country, you must be able to prove some connection to the country. Were the defamatory statements published in the country? Did the material attract an unusual amount of attention in that country? In other words, you can’t just pick a super-plaintiff-friendly jurisdiction; the incident under review must have a suitable connection to the jurisdiction in which a case is filed.
If I Sue A Non-US Citizen In A U.S. Court, Will They Be Forced To Pay Up If I Win?
Depends. Some countries – like the United States – have laws protecting citizens from certain foreign judgments. For example, the SPEECH Act – passed in 2010 – protects U.S. citizens from having to pay damages in cases where the foreign ruling does not conform to First Amendment standards, the Constitution and state law in the prevailing jurisdiction. For example, if a person tries to domesticate a judgment in Arizona, the actions complained about must be defamatory in Arizona and not protected by Arizona’s Constitution, which also preserves the right to free speech.
That said, many countries – for example, Canada – don’t have laws like the SPEECH Act. As such, if a Canadian citizen is sued by a U.S. entity, they could be forced to pay damages awarded by a judgment, though it may still be subject to Canadian free speech constitutional protections, as well as public policy considerations, as many countries’ courts consider “public policy” objectives in determining whether to enforce a foreign judgment.
What If I Don’t Know The Identity Of A Defaming Non-US-Resident? Can I Still Sue For Slander or Libel?
Sometimes. The process of uncovering an anonymous online defamer involves U.S. courts, in addition to foreign courts and tribunals. In most cases, a name is needed before an international slander or libel lawsuit can proceed. In some cases, via a court order, it’s possible to uncover an anonymous defamer. This is called discovery. Note, though, that some countries may not recognize the American discovery process and therefore refuse to issue the usual “letters rogatory” to assist American courts in discovering the identity of a John Doe defendant. Your lawyer should look into the laws of the relevant foreign country or countries before commencing an action for defamation against an unknown party. If A Defamer Doesn’t Live In The United States, How Can Legal Process Be Served? Can It Be Done Through Social Media?
Various federal and state rules govern the specifics of valid service. Federally, procedures outlined in Fed. R. Civ. P.4(f) deal with service of process abroad. Or, in laymen’s speak, “how to serve a subpoena (or other legal document) on someone in a foreign country.” The law states that “unless federal law provides otherwise, an individual – other than a minor, an incompetent person, or a person whose waiver has been filed – may be served at a place not within any judicial district of the United States. […]In the event both countries aren’t signatories of a shared international agreement, or if the agreement doesn’t outline specific service process means, a method can be used that is ‘reasonably calculated’” to give notice by:
- Using the foreign country’s laws for service.
- Using a method the foreign country directs petitioner to use, via a rogatory (formal legal request).
- Unless prohibited by a foreign country’s law:
- Delivering directly to person.
- “Any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.”
- Any other means not prohibited by international agreement, as the court orders.
Recently, the FTC was able to serve several Indian citizens via Facebook. It was deemed acceptable because enough evidence existed that the people on Facebook were the people the FTC is after. Specifically, on their Facebook pages, the defendants identified themselves as employees of the company under investigation, and the emails used in the alleged scam are the same as the ones the suspects posted on Facebook.
If Two Countries Are Signatories of the Hague Convention, What Is The Process Of Serving Someone Abroad?
If two countries are both signatories of an international treaty or agreement, the rules of international due process outlined in said agreement must be followed. The most popular international agreement, which has a section on international litigation notification, is the Hague Convention.
The section entitled “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” outlines international process services. Sixteen articles detail the proper procedures for service of legal documents abroad. Most explain inter-state administrative procedures, in addition to language and administrative processes. Articles 10 and 11 address situations where the intended recipient of a subpoena or legal notice cannot be reached by traditional means.
Article 10 states that if the State of destination doesn’t have objections, the Convention will not interfere with:
- Sending judicial documents via “postal channels” directly to a person abroad;
- Qualified officials effecting service directly through judicial officers; and
- The freedom of any person to effect service of judicial documents directly through judicial services.
Article 11 asserts that the convention will not get in the way of two States that want to set up an alternative agreement of document service.
So what does all that mean in non-legal speak? If the countries of the plaintiff and the defendant can agree on an acceptable means of service, then it is good enough in the eyes of the courts (provided that the courts accept that “service according to a treaty” or some similarly-worded statement is acceptable). What does that mean in today’s marketplace? In certain circumstances, legal notice can be served via social networking sites, like Facebook. So if information links you to your Facebook account, your Facebook messaging system can be considered an acceptable “postal channel” in the eyes of the law, and therefore can be used to let you know you’re being sued.
The rules of international service of process are nuanced. Special forms need to be used, and sent to specific offices, with specific cover letters, in a specific amount of time. Hire an attorney who knows the process. Otherwise, the statute of limitations could run out before your paperwork goes through the system. If you need a lawyer who has successfully dealt with international service process related to online defamation or intellectual property infringement, contact Kelly Warner Law.
Don’t you love it when politicians decide to become superheros of consumer Internet protection? Ramifications of poorly worded laws, be damned! No? Not your thing? Well, prepare to be irritated by the Cloud Computing Act of 2012.
Introduced last month by Sen. Amy Klobuchar, The Cloud Computing Act of 2012 is a group of proposed amendments to the Computer Fraud and Abuse Act that aim to “protect cloud-based businesses.” But as Eric Goldman adroitly pointed out in this Forbes.com article, the Cloud Computing Act of 2012 could actually cause many more problems than it would provide protection.
Goldman rightly, in my opinion, points out how poorly the draft proposal defines “cloud computing account” and “cloud computing service”. To put it bluntly, the definitions, as they now stand in the act, could describe nearly every interactive website on the Internet. If passed, under this new law, any website that allows users to register would technically be considered a “cloud computing service.”
The exact verbiage:
the term `cloud computing account’ means information stored on a cloud computing service that requires a password or similar information to access and is attributable to an individual, which may include allowing a customer of the cloud computing service to have multiple accounts;
The term `cloud computing service’ means a service that enables convenient, on-demand network access to a shared pool of configurable computing resources (including networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or interaction by the provider of the service.
So, why is that a bad thing? First, the bill muddies up the Internet law terrain, which allows for more frivolous lawsuits and ultimately hinders Internet innovation. Specifically, the Cloud Computing Act of 2012 does two major things:
1) Establishes that each breach of a “cloud computing account” counts as a separate CFAA offense;
2) Sets the pecuniary penalty floor at $500 per violation.
With the election just a few short weeks away, don’t expect to hear much about the Cloud Computing Act of 2012 until next year. And even then, I’d be surprised if it was passed as it’s drafted now. If they do try to push it through with the current verbiage, I’d venture a guess that we’ll see SOPA-style protests against the bill.
If you are an Internet business in need of an Internet law attorney, get in touch with Kelly / Warner today. Peruse our website; you’ll see we’re a law firm that deals almost exclusively in Internet law. As such, we know a whole lot about the industry. If you’re a startup looking for attorneys that understands everything from the difference between blackhat and whitehat SEO techniques to the legalities of crowdsourcing, look no further. Contact us today to get started.
You’re starting a startup and need to know the applicable laws. Well, you’re in luck, because this is a quick legal guide to launching a tech startup. While it’s always a good idea to speak with a startup law attorney before launching, this advice for tech startups should set you down the right legal path.
First Things First: Pick A Home-base For Your Business
Not all state startup laws are created equal. Some states have affiliate-friendly statutes; others favor e-commerce outfits. Finding the best jurisdiction for your company is the first step in establishing a legal base for your operation. In addition to industry considerations, remember to review the partnership laws in your state of choice. Some states have laws that prevent a co-founder from being let go without being bought out, others don’t. Some have tax structures that favor small tech startups, some don’t. So when you’re debating the decision, take some time to really think about your business; think worst case scenarios and then figure out which state is best for you. If you’re not sure where to begin with something like that, a good startup lawyer can help.
Legal Advice for Tech Startups Point #1: Register That Intellectual Property Properly
These days, intellectual property is as valuable to a startup as a bottomless venture fund would be. OK, that’s an exaggeration, but it can’t be stressed enough that IP is the equivalent to digital gold. Think about how much it would sting if you lost your branding edge due to an ill-filed copyright or trademark registration.
Another bit of startup advice: in the interest of clean records, make sure the intellectual property is registered to the company, not an individual. In the event of a partner split, the last thing you need is to be haggling over who owns the IP. It could get nasty.
Legal Advice for Tech Startups Point #2: Work Out a Partnership Agreement and a Pre-Nup
If you are embarking down startup path with others, make sure a partnership “pre-nup” is signed. Starting a company can be stressful, just as stressful as an unsuccessful marriage. Putting an exit agreement on paper while things are good is a great idea. Moreover, it allows you to see how you and your partners deal with unpleasant necessities – and it may just save you from getting into the wrong relationship with the right people.
Legal Advice for Tech Startups Point #3: Domestic and International Online Privacy Laws
While the Internet industry currently has fewer regulations than many others, there are still a number to which all companies must adhere. If you’re planning on doing business overseas – or targeting clients in the EU as well as North America – then there are even more laws you must heed. Here’s a quick list of a few:
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act is the only Internet privacy bill that has not been shot down in some way by the Supreme Court of the United States. And it looks like it’s about to be updated again – in a not so great way. If you are running a site or app that could potentially be attractive to kids – even if it’s not your intent to target kids – you’d better familiarize yourself with COPPA regulations. If not, crippling fines could play a major role in your not so distant future.
Gramm-Leach Bliley Financial Modernization Act
The mighty GLB – otherwise known as the Gramm-Leach Bliley Financial Modernization Act – is a wide sweeping bill that affected many industries. Tech startups need to be aware of the bill’s very specific financial online privacy standards. It’s a nuanced piece of legislation that must be understood, or, again, you could find yourself beat before you warm up.
United Kingdom Cookie Law
The Internet knows very few borders. That’s why any startup in North America must consider Internet law happenings across the pond. Currently, the new UK cookie law is the main regulation any new online venture should understand and incorporate into their platform. If not, you could face some very time-consuming European litigation, and possibly a hefty fine.
Legal Advice for Tech Startups Point #4: The Dot Com Disclosures
If you market on the Web, you must follow guidelines in the Dot Com Disclosure — the online marketing bible put out by the Federal Trade Commission. It covers everything from the proper use of testimonials to disclosure statements to allowable online marketing language. Get a copy, read it, know it — doing so will save you a lot of grief in the long run.
Legal Advice for Tech Startups Point #5: CYB and Invest In Proper Website Policies
The Kelly / Warner Law Firm was established to cater to the needs of online businesses and Internet entrepreneurs. We know the industry and the regulations that govern it; we understand the difference between blackhat and whitehat; we spend our days lawyering and our evening devouring anything tech-related. If you’re a startup looking for legal counsel, contact us today. We’re confident you’ll be impressed with our efficiency…and Internet law geek quotient.
At turns, they’ve been called the “protest party of the moment” and members have been known to make questionable haberdashery choices. For all intent and purpose they’re like a political band of gypisies – independent and prone to eccentricities. Nope, I’m not talking about the Tea Party, but instead the Pirates of Germany.
A political party numbering approximately 30,000, the Pirates of Germany hold 20 seats in one state and 45 seats across the country. While the popular history of the party usually begins in 2009, the seeds of their union actually date back to around 2006. It was that year that the Mannheim court ruled that citizens are responsible for their WiFi routers and all the traffic that passed through it. When the decision hit, a group of Internet activists in Germany started conversing on a, what could be described as, a fan-boy/fan-girl wiki for the Swedish Pirate Party. The administrator of the wiki was “Mor Roguen” or “Dark Knight” and on September 1, 2006, the group moved their meeting offline and held their first in-person gathering. What emerged from that gathering was the beginnings of a new German political party called “The Pirates.”
In 2009 members mobilized to protest a national telecommunications law that was enacted to combat online pornography, but the Pirates argued that the law could be easily used against anyone. In 2010 the Federal Court of Justice ruled that citizens could be fined one-hundred euros or more for an open WiFi connection – and the Pirates grew in numbers.
The German Pirates are not the only online copyright “outlaws” who’ve made tremendous gains thanks to government interference. Notorious BitTorrent search engine, The Pirate Bay, saw their traffic more than double after it was shut down by officials. Plus, the Swedish Pirate Party also saw their numbers increase significantly after the highly publicized event.
So what do the Pirates in Germany stand for? Well, their manifesto is a little bit hyper-intelligent, sci-fi idealism, coupled with a healthy dose of ultra-socialistic principals (another point that separates the Pirates from Tea Partiers). Their main goal seems to be compiling “all human knowledge and culture and to store it for the present and future.” They also firmly believe that “the digital revolution brings humanity the opportunity of advancing democracy.” Which, hey, are noble ideals. However, the Pirates also have a more radical agenda than just advancing knowledge and culture via technology, they also believe that every individual should be guaranteed a regular check from the government to pursue learning and culture – every person. As X put it, it could be argued that technology is to The Pirates as industry was to the Communists.
Germany is not the only country with an active Pirate party. As mentioned earlier, the Swiss pioneered the movement, and today, Pirates are a registered party in nearly 15 countries; representatives hold seats in Spain, Switzerland and Czech Republic. In 2009, the Swiss even elected a Pirate Party member to the European Union Parliament.
And yep, in case you were wondering, there are Pirate movements in Canada, Mexico and the United States.
Well what do we have here!? Looks like everybody’s favorite race car driver/poet/ Internet-sensation is once again making international Internet law headlines. That’s right ladies and gentlemen, we’ve got some more news from the Han Han files.
Don’t remember Han Han? He’s the insanely popular Chinese blogger who recently made news after filing a very high profile defamation lawsuit against his arch nemesis, Fang Zhouzi. Now, Han Han is once again making headlines as part of an author cabal who were awarded damages for online copyright violations. Specifically, the authors were upset about Wenku, an online literary database which has been posting works that can be downloaded for free.
Even though he was awarded moola, Han Han may not be rejoicing, as the prolific netizens didn’t get a fraction of what he asked for in the lawsuit.
You see, Han is part of an author association called the Copyright Protection Alliance. Recently, an attorney for the members filed a copyright infringement lawsuit against Baidu, a popular search engine in China. Out of the claims brought via the CPA filing, 7 of the suits were dropped and 7 claimants were awarded damages. Han was one of the lucky seven – he got about 40,000 yuen.
But as I mentioned above, Han Han had asked for much more than a mesley 40, 000 yuen. Homeboy wanted 760,000 (about $120,635). But perhaps most importantly, our man Han formally requested that the Baidu executives issue a prominent apology to Han Han and co. on their homepage. But the judge in the case could not be convinced that an apology was in order.
In true media-aware style, Wang Guohua, Han’s lawyer, announced that he and his client are considering an appeal in the copyright infringement lawsuit against Baidu.
Now, I couldn’t pass up this opportunity to get my Han Han on and promote myself. So, if you need to consult with an online copyright infringement lawyer, give us a call. We’re Internet law attorneys who know a whole lot about online intellectual property law.
Looks like the U.S. Immigration and Customs Enforcement Agency (ICE) had a change of heart concerning a popular Spanish Internet company’s domains. Nearly 20 months ago, Puerto 80 – an umbrella corporation for the Rojadirecta family of sites – curiously had their Web properties seized; curious because the reason for the seizure was spurious at best. What caused the flip-flop? Judge Richard Posner.
We’ll Take Those Domains, Thank You Very Much
In January of 2011, online legal watchers were aghast that the ICE was able to seize the websites of a foreign company, while standing on a very shaky legal leg. The sites in question were the Rojadirecta .coms and .orgs, a community of sites for professional sports fans. They featured discussion boards and links to game streams.
What made the original domain takeover especially suspect was that despite a Spanish court’s ruling, which said the sites were not in violation of Spanish law, the U.S. government would not release the sites while awaiting an exploratory hearing. Puerto 80 reasoned in a legal filing, “The [U.S.] government has not shown and cannot show that the site ever was used to commit a criminal act, much less that it will be in the future. By hosting discussion forums and linking to existing material on the internet, Puerto 80 is not committing copyright infringement, let alone criminal copyright infringement.” Judge Paul Crotty, however, was not hearing it and explained his decision by focusing on Puerto 80’s ostensible ability to redirect customers easily: “Rojadirecta.com has a large Internet presence and can simply distribute information about the seizure and its new domain to its customers.” U.S. officials also made it clear to Puerto 80 that the only chance they had of getting their sites back was if they prohibited users from linking to any U.S. content.
U.S. Government Drops Claim After Posner Intellectual Property Ruling
After fighting to hold onto Puerto 80’s family of websites, last month, the U.S. government dropped their strangle hold with a terse memo:
The Government respectfully submits this letter to advise the Court that as a result of certain recent judicial authority involving issues germane to the above-captioned action, and in light of the particular circumstances of this litigation, the Government now seeks to dismiss its amended forfeiture complaint. The decision to seek dismissal of this case will best promote judicial economy and serve the interests of justice.
And it all had to do with a ruling handed down by one of America’s most respected jurists, Richard Posner. In the case of MyVidster v. Flava Works, Posner affirmed that embedding video was not copyright infringement. As such, federal officials had no choice but to release the Puerto 80 sites. After all, if case law in the United States does not back up the ICE’s assertion, there’s little legal ground for them to stand on.
It’s no secret that officials are looking to thwart online piracy by any means possible, but it looks like this time their plans were foiled by Judge Posner.
To keep up with the latest online intellectual property news, follow the Kelly / Warner blog — we’re Internet lawyers who spend a lot of time thinking about such things.
It looks like Internet defamation laws in Bahrain are about to get a little stricter — but the infamously conservative country doesn’t want you thinking they’re infringing on rights. Hey, politicians are the same no matter time no place.
In an announcement today, the country’s Acting General Director of Corruption Combating and Electronic and Economic Security said that his department would be cracking down on Internet defamation, especially on social media sites.
Now, let’s be clear, officials don’t seem to be too concerned about the reputations of private citizens, as their statement specifically highlighted actions against those who “defame and insult patriotic person[s] and public figures.” Whoo wee, imagine if those were the online defamation standards in the United States. Comments on Fox Nation and The Huffington Post would probably result in millions of lawsuits every four years.
“Online smear campaigns,” the statement continued, “are tarnishing the reputation of national symbols and leading public figures from different age categories.” (Age categories? Yeah, I have no idea. Are politicians’ children also considered “leading public figures.”)
Despite their focus on public figures, though, the commission was sure to mention that “the measure aims at confronting violations which contravene the exercise of these rights in conformity with constitutional and legal provisions.” In other words, the government line is, “don’t worry, we’re not doing this to restrict freedom of speech, we’re doing this to crack down on illegal acts.” Eager to get the public in on the act, the department is also encouraging citizens, who feel they have been the target of online and social media defamation, to report it immediately.
Bahrain doesn’t have the strongest free speech reputation. The country’s slander and libel laws favor authorities, and the government is often accused of using defamation laws to control the media. The Ministry of Culture and Information has a history of banning books and freedom of information is not a given.
Curious about defamation laws from around the world? Want to know what counts as defamation in Vatican City? Saudi Arabia? Interested in learning about the difference between slander and libel laws in Arizona and Alaska? If yes, check out the Kelly / Warner International Defamation Law Database. Its chock full of information, and you don’t need a law degree to understand it. So head on over and get your international defamation knowledge on.
Kelly / Warner is a premier online defamation law firm. We’ve successfully litigated many slander and libel lawsuits and are the go-to law firm for many small businesses looking to combat unsavory online chatter. If you’re an individual or business owner looking for a no-nonsense defamation lawyer, contact us today to begin the conversation.