Monthly Archives: August 2014

FTC Mobile Payment App Report: Disclose and Ask More Questions!

mobile payment app law
The FTC recently published a report on mobile payment plugins and apps. Does this mean a new mobile payment app law? Probably not; but, there are new guidelines to follow.

The Federal Trade Commission has been earning their keep lately. Hearings, investigations and workshops, oh my! One of its latest efforts is a report and recommendations on mobile payment and coupon apps/plugins. While the commission didn’t announce a new, formal mobile payment app law, it did make strong regulation suggestions — suggestions with which online marketers are legally bound to comply.

The commission’s two main conclusions:

  1. Developers and app companies aren’t doing enough to alert consumers about the liabilities associated with payment apps; and
  2. Consumers should stop using mobile payment apps that don’t feature clear and concise disclosures that appear before they download the program.

The FTC’s 2014 Review of Mobile Payment Apps and Plugins

The Federal Trade Commission concentrated on three categories of apps in both the Google Play and iTunes App stores:

  1. Price comparison apps,
  2. Deal and coupon redemption apps, and
  3. Mobile payment apps.

What were Federal Trade Commission staffers reviewing about these apps?

  1. Whether or not the app had pre-download disclosures on:
    • Procedures for fraudulent transactions,
    • Billing errors, and
    • Payment-related disputes.
  2.  Privacy Policies – Since multiple users can participate in a group buy via some mobile payment apps, FTC investigators examined the privacy policies of the reviewed applications / plugins.

What Did The FTC Discover After Reviewing Mobile Payment Apps?

  1. Most mobile payment apps didn’t feature pre-download disclosures about “issues that are important to consumers.”
  2. After downloading the apps, investigators noticed that nearly all of the associated terms of use policies “placed all liability for unauthorized charges on the consumer.”
  3. Nearly all of the reviewed apps had “strong security promises and linked to privacy policies.”
  4. Most of the apps’ privacy policies used “vague language” and allowed for the collection and third-party use of consumer data.

What The FTC Wants Mobile Payment App Developers To Do Moving Forward; A New Mobile Payment App Law?

  1. Create pre-download disclosures regarding “consumers’ rights and liability limits for unauthorized, fraudulent or erroneous transactions.”
  2. Clean up the language in their privacy policies and use plain English to explain, clearly, what data is collected and what is done with it.
  3. Better evaluate whether or not they have a valid “business need” for the data they are collecting, and do a better job of describing these “business needs” to consumers (i.e., if you’re collecting data for shady purposes, and it’s not clear in your privacy policy, the FTC may come a-knocking on your door soon).
  4. “Companies should ensure that their strong data security promises translate into strong data security practices.”

What The FTC Wants Consumers To Do Regarding Mobile Payment Apps

  1. Start “asking questions” about the mobile payment apps they use.
  2. “Consumers should look for services that tell them upfront how the payment service works and what they can do if they encounter a problem. If the information is not available, consumers should consider taking steps to minimize their liability by choosing a different payment app or funding such payments with low-dollar amounts.”

So there you have it folks, after months of researching, debating, analyzing and then writing a 40-page report on the top 25 most downloaded mobile payment apps, the FTC says:

Do not try to cheat people! Follow the Dot Com Disclosures! Oh, and consumers, start asking more questions!

And this concludes our latest installment of “How the FTC Turns.”

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Do you have a mobile payment app law question? Get in touch with Internet law attorney, Aaron Kelly, with all your questions.

Impersonating Someone On The Internet: Legal or Illegal?

Picture of an Elvis impersonator to accompany a blog post about impersonating someone on the Internet
Impersonating someone on the Internet: Is it perfectly legal to set up a Twitter or Facebook account using another person’s name? Or, can doing so land you on the losing side of a lawsuit? What about parody? Is it legal to pretend to be someone else, on social media, for satirical purposes?

We’ll answer these questions below and explore the legal intersection of libel, humor, and impersonating someone on the Internet.

First Things First: Parody, Satire and Defamation: What is the Difference?

I won’t bore you with a diatribe on the finer points of satire versus parody; suffice it to say that works of both satire and parody are meant to be witty – if not poignant – commentaries on issues of public concern.

Defamation, on the other hand, is a free speech boundary that protects a person or company from harmful, malicious, negligent lies.

In the United States, satire and parody are acceptable, but defamation is not.

Is it legal to Parody a private citizen By Co-Opting Their Name On Social Media?

Is it legal to make a fake Twitter or Facebook account using another person’s name, with the purpose of humiliating them?

It’s not an easy question to answer.  A lot depends on the circumstances. The chances of being sued do skyrocket, however, if the posts under review fall into one of the four categories.

Harassment

Threatening to harm or hurt someone is almost never OK — or legal. If genuinely threatening content is published on a fake Twitter or Facebook account,  authorities will sniff out the people behind it hold them accountable.

Defamation

Maliciously spreading false statements of fact about another person or business is against the law — in every corner of the United States and beyond. But in order for a statement to be legally defamatory, the defendant, at the very least, has to act negligently and cause harm to befall the victim.

Impersonation

Impersonating a law enforcement official, or other type of public servant, in a professional capacity, is illegal. Getting caught means serious ramifications — unless, of course, the content is clearly a work of satire or parody.

False Light

In some states, impersonating someone on a social media account or email could invite false light charges – especially since a U.S. court, in the not too distant past, ruled that “everyone is famous on Facebook.” While the public figure distinction may work against average Janes and Joes in IP lawsuits, the status could help in certain false light and defamation lawsuits.

Do You Have A Legal Question About Impersonating Someone On The Internet?

Are you dealing with an impersonation situation? Considering legal action? If yes, get in touch with Kelly Warner Law. We handle all manners of online libel and impersonation litigation.

The perfect legal solution may not be as costly or long as you think. Give us a call today to start weighing your options.

Email Impersonation Case Study

In 2011, Australian Stephen Kirkham gained access to co-worker Cosimo Tassone’s email account. From it, Kirkham allegedly sent a message to Tassone’s contacts. The email read:

“Hello people, just a note to say that I am a homosexual and I am looking for like-minded people to share time with.”

As a result, Tassone “suffered personal hurt and distress” and couldn’t work for a year. To make up for the lost income and perceived blow to his reputation, Tassone sued for defamation of character.

Both parties fought hard, but in the end the Australian court sided with Tassone, and the plaintiff walked away with a cool $100,000. The judge ruled that even though calling someone gay is not defamatory, the email heavily insinuated that “the plaintiff is promiscuous, is of loose moral character and is seeking to solicit sexual relationships with people he does not otherwise know.”

Interestingly (or perhaps tellingly), Kirkham supposedly fessed up to the prank, dismissing it as a harmless “bad joke.” But when the lawsuit landed, Kirkham, allegedly, changed his tune and blamed the “bad joke” on another co-worker.

Defamation or Impersonation?

In Tassone v. Kirkham, the plaintiff won on a defamation charge in an Australian court (and there’s a decent chance he would have won a defamation charge in a U.S. court, too – depending on the jurisdiction).

In theory, however, in a U.S. court, Tassone could have also pursued impersonation and false light charges (again, depending on the jurisdiction). Moreover, if the “impersonating” was done on work hours and work equipment, business owners would be justified in terminating the perpetrator if an employment manual forbids using company resources for personal use.

Twitter Impersonation Defamation Case Study

The Players

In 2010, Joseph Cassiere worked at the California branch of The Agency Group, Ltd. – the self-styled “world’s leading independent talent booking agency”. David Shapiro – a recent “30 under 30” Billboard Magazine “one to watch” recipient — also worked for the firm.

Along Came A Fake Twitter Account

According to a recent defamation lawsuit filing, soon after Cassiere started with The Agency Group, a fake Twitter account popped up called @QuotesOfJJ; the header section featured a picture of Joseph Cassiere; the account followed other music industry professionals.

So what was so bad about the fake Twitter account? Well, the tweets were puerile and made it seem like Cassiere was a “foolish, inept and sexually perverted” guy who “lewdly” sought “the opportunity to promiscuously and publicly find sources of ejaculation.”

Apparently, the account became infamous in the industry, and eventually Joseph Cassiere informed superiors that he wouldn’t be working in the office anymore if the fake Twitter account wasn’t killed.

It eventually was, but, as Cassiere explained in his lawsuit, “the damage was already done.”

Fired For A Bad Reputation – Defamation, Cyberbullying, False Light Lawsuit

In 2013, Cassiere thought he was in line for a raise, but got fired instead. The Agency Group executives explained that his “perception and credibility was not good,” and that the company had a “general loss of confidence in his ability as an agent.”

So, Cassiere decided to file a lawsuit. In addition to defamation and false light, the talent booker also evoked a rarely used 2011 California cyberbullying law.

Is There Proof That The Defendant Is The Person Behind The Fake Twitter Account?

A noteworthy aspect of this case is the lack of definitive proof that Shapiro is the person behind the fake Twitter account. To make matters more interesting, Shapiro denies being the anonymous impersonation defamation ne’er do well. So, in order for the case to move forward, Cassiere will have to definitively convince a judge that Shapiro is, indeed, the culprit. In his initial filing, Cassiere argues for Shapiro’s authorship thusly:

  1. The fake Twitter account mentions things that only Shapiro would know;
  2. Shapiro’s mention of @QuotesOfJJ on his own personal Twitter account is evidence that he is aware – and probably the author of – the fake account;
  3. The removal of the fake Twitter account happened after Cassiere complained to Shapiro (and presumably other superiors) – and nobody else — about it.

At this point, it’s anyone’s game and will depend largely on the quality of the lawyering. Issues of whether or not the things discussed on the fake Twitter account were a matter of public concern will definitely come into play. Also, the judge may have to weigh whether or not a “reasonable person” would be able to figure out that the account was a parody of satire. Heck, can it even be considered parody or satire since Cassiere is not a well-known public figure and the topics tweeted about were private things, not matters of public concern?

Talk with an attorney about your legal issue involving impersonating someone on the Internet.

Text Message Defamation: Can A Text Be Libelous?

picture of woman looking at phone to accompany a blog post about text message defamationIs text message defamation a real thing? It depends.

First Things First, What Is The Definition of Defamation?

Before we talk about the specifics of text message libel, let’s review what constitutes defamation, generally speaking.

The Main Elements of Defamation

State laws vary slightly, but they all adhere to the federal standard:

  1. Publication – The material at hand must have been made public.
  2. Harm – The material at hand must have caused the plaintiff material harm.
  3. Fault – The material at hand must have been published, at the very least, negligently; meaning the defendant didn’t engage in enough fact checking before sending the text.

The Difference Between Slander and Libel

Slander and libel are two types of defamation. Spoken defamation is slander; written defamation is libel.

Opinion v. Defamation

Under United States law, opinion is not defamation. Anybody can talk trash about anybody – what you can’t do is spread lies about people.

Substantial Truth

Can a party be sued over a minor inaccuracy (i.e., reporting a business embezzled $1.5 million when in reality it only swindled $1 million)? In 99% of cases, no. Why not? Because of a legal standard called “substantial truth.” If a statement is mostly correct – and the inaccuracy doesn’t have a significant impact on a reader’s or listener’s overall understanding of a story — then substantial truth applies, and the defendant usually wins.

Privilege

Defamation is when one party makes an unprivileged false statement of fact about another party. Unprivileged means that the person doing the dishing didn’t have a legitimate right to “pass on” the information. For example, conversations between clients and lawyers are protected; as such, except in the rarest of circumstances, a defamation lawsuit couldn’t be crafted around a private conversation between an attorney and client.

Generally Speaking, When Is A Text Message NOT Considered Defamatory?

  • If a message is the nasty opinion of one person, it probably won’t qualify as text message defamation. We’re legally allowed to voice negative opinions.
  • If a text message was sent to only one person and did not cause the plaintiff material harm, it’s probably not defamatory.
  • If the statement is true, nine-and-a-half times out of ten the courts won’t consider it defamatory; but you may have a valid “publication of private facts” claim.

Generally Speaking, When Can A Text Message Be Deemed Defamatory?

  • If someone sends a false statement of fact to a text message group, the text message could be deemed defamatory.
  • If the false statement of fact causes material harm, a judge could deem it libelous.

NOTE: For a statement to be legally defamatory it must satisfy all the elements of defamation (see above). For example, it’s possible that a person could send a false statement of fact via text, but if it didn’t cause harm, it won’t be deemed defamatory.

Defamation law is full of caveats – like privilege, substantial truth, etc. – which can ultimately determine the outcome of a case. It’s best to consult a defamation attorney about the particulars of your situation to find out if you have a viable claim.

Speak With An SMS / Text Message Defamation Lawyer

Are you dealing with a defamation headache? Kelly / Warner helps individuals and businesses deal with their “digital defamation” woes. Whether you need help with text message defamation or other types of online libel – we can help.

The SPEECH Act In Action: Canadian Innkeepers v. U.S. Blogger

The SPEECH Act lawyer
What happens in a cross-border defamation lawsuit between a Canadian and an American?

Can a Canadian sue an American, in a Canadian court, for defamation? Yes. If the Canadian wins, will the American be forced to pay damages? Because of the SPEECH Act, probably not.

Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act)

It’s a law with a long name and a big job. The Securing the Protection of Our Enduring and Established Constitutional Heritage (SPEECH) Act is the regulation workhorse that materially safeguards U.S. citizens’ free speech rights in foreign jurisdictions.

How does the SPEECH Act work?

The paperwork particulars are nuanced and better left for a lawyer.

But, in basic terms, the SPEECH Act works thusly:

When a ruling is handed down in an overseas court, the foreign party seeking restitution must ask a “state-side” court to force the U.S.-based “losing party” to pay up. The SPEECH Act, however, says judges can refuse to issue a court order to the U.S. party, on the grounds that the case would’ve probably turned out differently in an American court.

U.S. Defamation Laws v. Canadian Defamation Laws

Since the U.S. has the most defendant-friendly libel laws in the English-speaking world, and Canada has the most plaintiff-friendly libel laws in the same demographic, U.S. courts don’t often recognize a libel judgment, in favor of the plaintiff, handed down in a Canadian Court. (Quebec courts are sometimes exceptions to the rule.)

The Notable Exception: If the facts of the case are such that the Canadian plaintiff would have won in both a U.S. and Canadian court, then the American party will be forced to turn over the duckets.

SPEECH ACT Case Study: Blogger v. Canadian B&B Owners

Dissing Innkeepers and Politicians On Slabb.org

Some time ago, Mr. Doug Handshoe of Mississippi posted a missive on Slabb.org. The focus of his prose was the former president of Jefferson Parish, Louisiana – a fallen area politician who plead guilty to theft and bribery. Handshoe compared the disgraced official with the owners of a guest house in Nova Scotia, Canada, quipping that both the politician and the innkeepers “had champagne taste on a beer budget” and “worked as a unit to grift their way through life.”

Canadian Innkeepers Sue for Online Libel

Probably perplexed about how they got dragged into the machinations of a Mississippi political melee, the owners of the Nova Scotia inn filed an online libel lawsuit against Handshoe – in a Nova Scotia court – and they won a judgment of about $430,000.

But can the Canadians collect the money?

The Canadian innkeepers petitioned a federal Mississippi court, asking it to force Handshoe to pay up. But Handshoe argued the SPEECH Act. Chief Judge Guirola agreed and ruled that Handshoe didn’t owe squat because he probably would have won the defamation lawsuit had it been tried in the United States.

The innkeepers appealed, but were once again denied, the Fifth Circuit explaining in their opinion:

A party may enforce a foreign defamation judgment in a domestic court if either (A) the law of the foreign forum . . . provides free-speech protection that is coextensive with relevant domestic law, or (B) the facts . . . are sufficient to establish a defamation claim under domestic law.

The higher court found that the Nova Scotia libel standards used to decide this case did not mesh with point (A), nor did the judges feel that the Canadian innkeepers would have won in a U.S. court, rendering point (B) unfulfilled as well.

Another blow to the Trout Point executives, they had to pay Handshoe’s legal fees.

(Case: TROUT POINT LODGE, LIMITED, a Nova Scotia Limited Company, VAUGHN PERRET, and CHARLES LEARY, Plaintiffs-Appellants)

Canadian-U.S. Defamation Litigation and Lawyers

Kelly / Warner Law has successfully handled many cross-border, Canadian-U.S. libel cases. If you are facing a foreign defamation judgment and want to exercise your SPEECH ACT rights, we can help. If you want to sue a non-U.S. citizen for defamation, we can also help. If you are being sued for defamation and need defense counsel, we do that too.

Kelly / Warner is a top-rated, full-service law firm – with an excellent track record in cases involving the SPEECH Act.

Get in touch today to begin the conversation.