Monthly Archives: May 2014

5 Facts About The “Right To Be Forgotten” Ruling

right to be forgotten ruling in EU
Will US defamation victims be able to take advantage of the new EU right to be forgotten ruling?

UPDATE: Google now accepts “right to be forgotten” removal requests. To see if you qualify, get in touch.

*** Original Article ***

The top European Union court announced a landmark ruling furthering the discussion about “right to be forgotten” Internet laws. We’ll explain the meat of the ruling and explore how it could affect online defamation victims.

What Is The Best Way To Get Defamatory Material Removed From The Internet?

The best way to mitigate the effects of online defamation is to get the offending material removed from the Web. But, if you can’t expunge it completely, the second best option is getting libelous info erased from search engines. That way, if someone pumps your name or business into Google, Yahoo! or Bing, the reputation damaging webpage won’t show up in the results.

How Easy Is It To Get Libelous Content Removed From Search Engine Indexes in the United States?

How easy is it to get defamatory content removed from search engines? It depends on the situation. It’s possible to get a court order compelling a  search engine to remove material, but in order to do so, one must first prove defamation.

If your lawsuit is in the beginning stages, you can sometimes get a temporary restraining order compelling website operators to remove material during the course of litigation.

How Easy Is It To get Libelous Content Removed From Search Engine Indexes in the European Union?

The United States may enjoy eviable free speech rights, but EU online privacy laws are a lot stricter than ours.

In May 2014, the European Court of Justice announced a landmark search engine defamation ruling. In 1998, a man living in Spain suffered a reversal of fortune. But, over the past several years, he’s turned things around. Unfortunately, when you pump his name into Google, his 2–year-old blunders are still front and center.

The man’s woes, though, will soon be over, because the EU Court said Google must remove the information about his old financial troubles.

The Right to Be Forgotten v. The Right To Erasure

People on the “legal beat” are calling the new European online privacy stance “the right to be forgotten.” Officials in Europe, however, are taking it one step further and calling for a “right to erasure” law, which would allow individuals control over personal online information that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

Will The EU Right To Be Forgotten Ruling Affect The U.S. Tech Industry?

The EU’s right to be forgotten ruling will cost search engines money – lots of it. Why? They’ll have to implement new procedures to comply with the legal standard, as well as hire a slew of attorneys to focus on related issues.

And there’s another concern: censorship. According to the Computer & Communications Industry Association, whose membership ranks include Facebook Inc., Yahoo, Google, and Microsoft, said about the EU right to be forgotten ruling:

“[It] opens the door to large scale private censorship in Europe,” adding that “our concern is it could also be misused by politicians or others with something to hide who could demand to have information taken down.”

Can U.S. Businesses ‘Take Advantage’ of the new EU Right To Be Forgotten?

Are you wondering, “I wonder if I, a U.S. citizen, can somehow make the new EU ruling work for me? There is some unsightly information about me on the Web, and I’d really like it gone.”

Unfortunately, the answer isn’t simple and depends on whether or not you have any ties to Europe.

If you’re curious if you qualify to take action under the new European “right to be forgotten” standard, contact Kelly / Warner. We’ve successfully handled countless online defamation removal cases. Let’s talk.

Get in touch today to learn more about your legal options regarding the right to be forgotten laws.

Cocktail Waitress Lands Revenge Porn Uppercut

revenge porn laws update
Boxer Adrien “The Problem” Broner entangled in a revenge porn lawsuit.

Looks like boxer Adrien “The Problem” Broner can add revenge porn to his list of – shall we say – ego-fueled displays of pugnacious masculinity. A Nevada waitress and a sex tape feature this go round.

Lights, Camera, Consensual Sex Tape!

A few months back, Broner, a woman named Andrea Reyes, and a third female decided to get it on. Broner asked if he could, ya know, record the event for posterity. According to reports, both the ladies agreed to the ménage à trois, but Reyes only gave her thumbs up if he promised to keep the tape secret — but she never got anything in writing.

What did Broner do? He posted the threesome online for all to see. So, Reyes is suing — and the other woman is staying quiet (though, she may not be able to keep it zipped if she’s subpoenaed).

Reyes contends the unauthorized tape release “caused irreparable injury … and has forever defined the manner in which [the woman] will be viewed by individuals with whom she comes in contact.”

Sex Tape Leads To Revenge Porn Lawsuit

Reyes threw down a barrel of torts in her lawsuit against Broner, including:

  1. Breach of Contract
  2. Breach of Implied Covenant of Good Faith and Fair Dealings in Contract
  3. Breach of Good Faith and Fair Dealing in Tort
  4. Negligence
  5. Public Disclosure of Private Facts
  6. Appropriation/Right to Privacy
  7. Intentional infliction of emotional distress
  8. Negligent Infliction of Emotional Distress

Will Broner’s Sexcapade Partner Win This Revenge Porn Lawsuit?

What are Reyes’ chances of winning this lawsuit? It depends. If she can prove she and Broner struck a verbal agreement (i.e., the other participant heard the agreement and submits an affidavit of that fact), Reyes could win.

That said, good money is on a settlement. Why? For one, Reyes isn’t asking for a boat-load of cash. She only requested a reasonable – (for this situation) — $30,000. Considering Broner’s bank account is about $500,000 fatter thanks to the Molina purse, there’s a  chance he’ll just settle to make this go away.

So, what’s the takeaway?

First. If you agree to a sex tape, but don’t want it online, get your partner to sign an agreement to that effect ahead of time.

Speak With A Revenge Porn Attorney

Are you suffering through a revenge porn situation? Several states have already passed anti-revenge porn laws – and many more are on the way. Moreover, in certain situations, you may be able to remove prurient material from the Internet without the help of a dedicated revenge porn law.

Get in touch to learn more about your legal options. We’re here to help.

Doctor Defamation Case Study: Requested Review /= Defamation

Doctor Defamation Attorney May this doctor defamation case serve as a cautionary one. The lesson? Don’t sue for defamation over a situation you initiated.

Acrimonious Doctor Departure Results In AAR

Back in 2003, a doctor locked heads with administrators at his medical facility. Ultimately, the doctor quit instead of dealing with the office tension. Judging from available documents, he received a severance package.

Immediately after the doctor left, administrators – in accordance with the facility’s operating procedures – submitted an Adverse Action Report about the doctor’s departure.

Doctor Requests AAR Removal; Denied; Requests Investigation

Fast forward to 2011. The doctor contacted the hospital requesting removal of the AAR.

But the hospital refused.

Undeterred, the doctor went directly to HHS – the company that maintains the AAR database – about removing the AAR.

The rub: HHS won’t remove something just because a doctor asks. Instead, staff members investigate each situation. In this instance, an HHS representative contacted the hospital and asked for a recounting of the events that led to the doctor’s unceremonious departure.

Doctor Unhappy With HHS Investigation Results Sues For Defamation

The hospital complied and related “the sequence of events” to HHS. In the end, the Adverse Action Report stayed put. So, the doctor filed a defamation lawsuit, arguing that the revelation of his situation to HHS constituted defamation.

Judge Rules In Favor Of Hospital

The court, however, wasn’t feeling the doctor’s argument. The judge reasoned that the doctor, technically, requested an investigation; as such, he has no right to financial damages over the information uncovered in said inquiry.

Doctors Do Win Defamation Lawsuits Involving Negative Reviews

Does this mean that every doctor defamation lawsuit centering around a review will turn out the same? Absolutely not. In fact, in this case, it sounds like the hospital told the truth. If the hospital had lied, however, the outcome would have been different.

What Is Considered Lying Under US Defamation Law?

What constitutes lying? Clearly, a false statement of fact is a lie. Additionally, under United States defamation law, there are two other actionable categories of falsity – defamation by omission and defamation by implication.

Speak With A Doctor Defamation Lawyer Today

If you are a doctor, surgeon, nurse or another type of medical professional in need of defamation legal advice, get in touch with Kelly / Warner Law today. We enjoy an excellent rating by independent lawyer review association, Martindale-Hubble; plus, founding partner Aaron Kelly also has a perfect rating on consumer Internet lawyer review website, AVVO.

Don’t wait. In many cases, doctor defamation problems can be solved quickly – especially in instances of online review sites.

Get in touch with the doctor defamation legal team at Kelly / Warner Law today. You have more legal options than you realize.

An Update On Revenge Porn Laws Across The Country & Abroad

revenge porn laws update
Revenge Porn Has Gone Viral and Politicians Worldwide Are Eager To Make New Laws

Anti-Revenge porn laws have gone viral. Most states in the union have a bill in the draft-to-ratification pipeline. Even Japan and Canada are crafting and passing revenge porn laws.

Quickly, Refresh My Memory, What Is Revenge Porn?

Revenge porn is the Internet law topic du jour. So, what is it? Basically, it describes the act of jilted ex-lovers posting intimate selfies of former paramours — without said paramours consent or knowledge.

In some instances, images or videos are used to humiliate or destroy professional reputations. In other instances, less stable – often dangerous — people use the threat of revenge porn to blackmail partners into continuing a bad relationship.

Is Revenge Porn Legal In The United States?

Last year, in response to the question: “Is revenge porn legal in the United States?” I would have said, “Yes.” But now, not so much. In just a few scant months, most states have, at the very least, begun drafting anti-revenge porn legislation. Some legislators –- like Arizona and California — have already passed bills criminalizing the act.

Go here to get a state-by-state rundown of revenge porn laws.

U.S. National Revenge Porn Law? A Prediction.

Prediction: Within two years, revenge porn will be illegal everywhere in the United States. Why commit? Bi-partisan support for revenge porn laws is unusually strong, and it provides politicians an easy way to “reach across the aisle.” Brass tacks, save for some arguably legitimate (albeit perhaps only theoretical) libertarian objections, revenge porn is an effective vehicle for politicians to garner support. And hey, why not. Anti-revenge-porn laws are a good thing, so long as they don’t inadvertently trample free speech rights.

Japan’s New Public Push For Revenge Porn Legislation

Last year, Japan’s National Police Agency reported approximately 300 cases involving explicit photos or videos of minors — a distressing 30 percent increase from 2012.

The significant increase in Japanese revenge porn cases has prompted legislators to draft a law criminalizing the act. The current political makeup of the Japanese Parliament, though, is not what one could call “copacetic,” and analysts predict it will take years to pass a bill that all parties can agree on. (Hmmmmmm, sound familiar?)

Junko Mihara, the current secretary-general of the Liberal Democratic Party, was asked to comment on the seriousness of these incidents. He explained that revenge porn is nothing less than “… sexual violence and an offense that could very well haunt its victims for the rest of their lives.”

Canada Revenge

The public face of Canada’s C-13 Act, or Protecting Canadians from Online Crime Act, is cyberbullying. Speculation is that the new law could be amended to cover revenge porn, too.

Bill C-13 has several distinct components. Aside from provisions dealing with cyber-sexual assault, the bill contains troubling privacy elements. It allows, for example, the police to request information about any person from any company or Internet service provider — without warrants nor customer consent.

Advocates argue that C-13 is not the ideal way to combat cyber-bullying, but some think it’s the perfect revenge porn legal tool.

Speak With A Revenge Porn Lawyer

If you are dealing with a revenge porn situation and looking to take legal action, get in touch with Kelly / Warner Law.

FTC Fines Snapchat For Being Loosey-Goosey With Data

snapchat FTC fine

Snapchat entered into a consent decree with the Federal Trade Commission for supposedly misleading users about data collection and inter-device privacy. Avoid the same outcome by making sure your apps and websites are outfitted with proper legal disclosures.

Why Did The FTC Go After Snapchat? (Answer: Playing Fast and Loose With Customer Data)

iOS7 Bug

Snapchat users can take screenshots of a “snap,” but the original user is supposed to get a notification when it happens. But the Federal Trade Commission reported that recipients with Apple devices running iOS 7 can exploit the app to avoid screenshot detection.

Encryption Issue

The FTC also reported that Snapchat stores videos on recipients’ devices without encryption, meaning the videos can be accessed even after “disappearing” on the Snapchat application.

Successful Hacker Breach

On top of all that, in January, hackers snagged a whole lot of valuable Snapchat user data. Making matters more complicated for the app company, security experts had warned Snapchat that the application was exploitable, but the company, allegedly, did little to fix the issue.

Android Issue

iOS users weren’t the only affected people. Android Snapchaters’ locations were also transmitted to the Snapchat servers, even though the company claimed it didn’t collect any information from users.

Snapchat Got The Same “Sweetheart” Punishment As Facebook Did For Beacon

Like Facebook before them, part of Snapchat’s FTC agreement requires the company to implement a 20-year privacy monitoring program, which will be overseen by an external privacy expert.
The FTC warned Snapchat that violation of the agreement will result in a civil penalty of up to $16,000 for each offense. Snapchat has since made some upgrades, reporting: “we continue to invest heavily in security and countermeasures to prevent abuse.”

FTC Unfair and Deceptive Marketing Lawyer

Entangled in an FTC investigation? Get in touch with Kelly / Warner Law. Click here to learn more about our online marketing legal practice.

The CFPB May Make Things Easier For Finance Firms

finane law news online privacy
The CFPB is looking to make things easier for finance firms that don’t share data.

The Consumer Financial Protection Bureau is ready to ease up on certain Gramm-Leach-Bliley financial privacy rules for companies that don’t share customer data with third-party vendors.

The current rule: financial institutions that share customer data with third-party vendors must send annual hard-copy mailers (via snail mail) delineating with which third-party vendors you partner, and how. The mailer must also include information on how customers can opt-out of certain third-party sharing relationships.

Experts predict that the CFPB’s proposed online privacy policy option will save the industry $17 million in administrative costs annually. After all, snail mail isn’t cheap.

Of the proposal, CFPB director Richard Cordray said:

“Consumers need clear information about how their personal information is being used by financial institutions. This proposal would make it easier for consumers to find and access privacy policies, while also making it cheaper for industry to provide disclosures.”

“If an institution shares data with unaffiliated third parties in a way that triggers customers’ right to opt out of such sharing,then that institution generally would not be allowed to use the alternative delivery method.”

This proposal is not a done deal. In fact, it’s only the beginning. The bureau is currently accepting comments, after which they will review the submissions and consider any necessary proposal changes.

Kelly / Warner Law works with all manners of finance firms – from individual Forex traders to small credit unions. If you’re a finance firm or business looking for legal counsel, let’s talk.

Business Defamation: Employer v. Employee

employer v employee defamation
A company sued an ex-employee for defamation — and it looks like the business may win the case.

A salesman sued his employer for unlawful termination, alleging he was fired for not taking clients to strip clubs. But, a judge dismissed his case. Then, the company counter-sued for defamation.

Employer v. Employee Business Defamation Lawsuit Over Stripper Allegations

Now, let us abandon naivety; salespeople have been known to close a deal – or a lifetime’s worth – over ribs and, errrr, racks. But the p-rn industry aside, few U.S. companies would welcome accusations of prurient activity on company time.

So when Michael Vackar alleged that he was fired for not treating customers to strip clubs, Superior Supply & Steel (“Superior”) filed a business defamation lawsuit.

Attorney Made The Stripper Comment On ‘Behalf’ Of His Client

Reports on the case are vague, but from what we can decipher, the stripper accusations came about thanks to a post-lawsuit press conference held by Vackar’s attorney in which he blamed his client’s ouster on Vackar’s refusal to do business in Gentlemen’s Clubs.

Company Insists Salesman Fired For Shady Expense Reports And Nothing More

Spokespeople for Superior, however, say Vackar got fired for one reason and one reason only — shady expense reports. Four of them, to be precise. To bolster its claim, the company submitted several affidavits from current employees affirming that Superior has never ever told personnel to entertain clients at strip clubs. Executives also point to the company handbook, which files strip clubs on the naughty page.

Judge Sides With Business In Defamation Suit Initial Proceedings

Vackar’s attorneys tried to get the case dismissed, but the presiding judge sided with Superior, saying, “Sanctions are warranted.” He reasoned:

“Superior has submitted uncontroverted evidence that at least some of what Vackar’s counsel told the media was false.”

and

“There are no witnesses who support Vackar’s version of events, although Vackar, through counsel, stated that there were ‘certainly’ multiple witnesses to Superior’s demand that sales representatives take clients to strip clubs, obtain sexual favors for the clients, and videotape them for blackmail. All the witness affidavits and declarations are to the contrary.”

Defamation Law Is All That Matters In This Case; As such: Advantage Business

Some of you may be reading this thinking, “Yeah right. I don’t trust the purity of Superior’s corporate culture one bit – and now the ‘little guy’ unfairly loses again for telling the truth.”

You could be right. Or, you could be 100% wrong. Either way, it does not matter. What matters is the law – and this is a straightforward employer v. employee defamation case.

Truth ≠ Winning

To be blunt, businesses can sometimes win a defamation lawsuit when a truthful statement is at issue. (Note: We are NOT saying that Superior is lying in any way shape or form; we’re just stating a fact about the law, separate from the Superior case.)

Bottom line: Superior has proof that Vackar made a false statement of fact about the company’s professional ethics. As such, their chances of winning this business defamation case greatly improved.

Contact A Business Defamation Lawyer

If your business is dealing with a libel situation – and you want to fix the problem instead of letting it fester – get in touch with Kelly / Warner Law. We’ve successfully handled many business defamation lawsuits involving former employees.

Online Contest Legal Rules: Hashtag Disclosures Insufficient

First: If you’re an online marketer, and you haven’t seen W1A — hunt down at least one episode. Next: Why am I talking about an obscure British television show on the website of an online marketing law firm in Arizona?

The arid-humor spin-off to Twenty Twelve, W1A is a workplace mockumentary (think The Office) set at the BBC.

Subplot B:  The BBC hires Siobhan Sharpe — of Perfect Curve PR — to digitally re-brand the iconic media outlet. In one scene, the Perfect Curve team deduces that “everything” needs to be “app-y,” and that “anything” properly “app-y,” must have as few words and letters as possible.

Well, let’s just say that the latest FTC announcement would short-circuit Siobhan and co., because the commission wants social media marketers — and contest participants — to start using MORE WORDS!

No, let me rephrase that. The Federal Trade Commission now wants businesses to jump through wildfire when disclosing social media contests.

Participation in an online competition constitutes product endorsement?

The FTC recently weighed in on whether hashtags were a sufficient endorsement disclosure method for social media contests. It’s answer? No.

It’s a shocking stance. After all, what are contest operators supposed to do – especially when many social media platforms don’t physically lend themselves to long disclosures? How can you fit a full contest disclosure in a 140-character tweet?

Pinterest Contest Leads To FTC Censure For Cole Haan

Shoemaker, Cole Haan, decided to stage a social media contest. The company invited customers to post photos of Cole Haan shoes in various locales (think gnome around the world – but with shoes). The most creative entry would win a $1,000 bounty.

Well, the FTC wasn’t pleased with Cole Hann’s online contest. In fact, the FTC deemed the shoe company deceptive for not having participants properly disclose the potential to win cash-money for their ghost-foot pics.

What Is The FTC Trying To Do With This Latest Online Contest Decision? Will It Handicap Small Businesses?

The Godfather of online marketing law, Eric Goldman, explained why this social media marketing law decision is troubling. “It’s part of the whole phenomenon of the FTC thinking that it can police inauthentic content online,” he succinctly explained. “What is the FTC’s ultimate message to online marketers and contest operators? You’re responsible for your brand’s fans’ online activities?” he concluded.

Bottom Legal Line For Online Contests

If you plan to do an online or social media contest, make sure to instruct participants to post sufficient disclosures with their entries — or YOU may pay the price.

Speak With An Online Contest Lawyer

Are you planning an online contest? Wondering if it’s legally compliant? Get in touch with Kelly / Warner Law to find out. Our firm has successfully helped countless online contest operators – let’s do the same for you.

Did The FTC Just Make Website Terms Mandatory?

website terms and conditions required Reed Morgan wrote an interesting article for Law360 about the FTC’s recent investigation into — and complaint against — JERK LLC. He questioned if the commission’s decision inadvertently launched a new era of federally mandated website terms and conditions.

What Is JERK.COM And Why Did The FTC Go After It?

A revenge site that charged people to delete profiles, Jerk.com is one of the more “successful” online “reputation revenge” sites. According to Jerk’s marketing materials, the millions of profiles on its platform were put there by other people — not the site operators.

FTC: Site Operators Created The Profiles Themselves

But the FTC thinks the Jerk execs created the majority of the site’s profiles. How did they get the information? By culling data from social media sites, like Facebook and Twitter.

FTC Says “Nah-Ah” To Profile Removal Extortion

The FTC doesn’t like extortion – especially extortion based on made-up facts. So, to punish, it slapped JERK with a deceptive marketing fine. According to the consumer watchdog commission:

“[JERK.COM] populated or caused to be populated the content on the vast majority of Jerk profiles by taking information from Facebook in violation of Facebook’s policies.”

Reed explains the significance of this FTC statement (excerpts):

The fact that the information was pulled from Facebook in violation of Facebook’s policies does not seem to be material — let alone essential — to the deceptiveness allegation. Nonetheless, the complaint only alleges that “the representation [regarding the source of the content] was, and is, false or misleading” after stating that Jerk took information from Facebook in violation of Facebook’s policies.

The FTC is breaking new ground here. Jerk is not the first time the FTC has brought a case based (in part) on an alleged violation of another company’s terms or policies, but it is the first time the FTC has alleged that the violation of another company’s terms or policies can be part of a violation of Section 5 in its own right.

In other words, the FTC’s complaint can be read to suggest that simply using information pulled from Facebook in violation of Facebook’s policies is a deceptive act or practice, without any alleged misrepresentation to Facebook regarding the use of the information.

If the FTC continues to pursue this theory, it would essentially be turning Facebook’s policies into “federal law,” with compliance effectively enforced by the threat of Section 5 enforcement simply for using Facebook content in violation of Facebook’s policies.

Interesting, right? For years, though recommended – especially for legitimate businesses – the Federal Government never required website operators to have terms and conditions (unless the website had an e-commerce component). This recent ruling, however, could make website terms and conditions de facto mandatory.

Contact An FTC Marketing Attorney

If you need to speak with an FTC attorney, get in touch with Kelly / Warner Law today.

Public Relations Firms Must Bone Up On FTC Regulations Pronto

PR Firm Lawyer

FTC To PR Firms: “You Can Be Held Liable For Clients’ Deceptive Marketing”

The Federal Trade Commission is on the hunt for public relations firms playing fast and loose with marketing disclosure rules. REMEMBER: Under certain circumstances, PR companies can be held liable for clients’ deceptive and unfair marketing techniques. In the words of the FTC:

“Any party that actively participates in the marketing of products through paid endorsers, including a public relations firm… has the responsibility to make sure that [all appropriate] disclosures are made.”

Under certain circumstances, PR companies can be held liable for clients’ deceptive and unfair marketing techniques.

Deceptive Marketing Legal Advice For PR Firms

This article, on PRWeekUs.com, expertly explains the rules regarding pitch and marketing disclosures. To summarize (though definitely give it a read):

  1. Make sure “adequate disclosures”punctuate all of your marketing materials.
  2. Disclose all material connections not made evident via the ad itself.
  3. Make sure you have back-up proof for any scientific or performance claims.
  4. Public relations companies should remind clients to include the appropriate disclosures on everything – including risk information for regulated industries.

A Law Firm That Works With PR Firms

If you are a public relations firm dealing with an online marketing investigation or legal issue, contact Kelly / Warner Law, today. We maintain a dedicated Internet law practice and, like skilled yachtsmen, we’ve helped countless firms navigate unfamiliar legal waters.