Must a website give up the name or email of an alleged anonymous defamer?
Does the First Amendment allow for negative, anonymous online speech?
Why do some judges grant subpoenas forcing ISPs to hand over identifying information, but other judges won’t?
We’ll answer these questions –- and more — below.
Free Speech v. Defamation
Sometimes, when an online defamation lawsuit makes news, the peanut gallery jumps on assumptions and free speech screeds spread like a zombie swarm – gaining force and riling emotions along the way.
Now, before you disagree, let’s be clear: Of course free speech is important! It’s THE essential component of a healthy society – 100%. We should – nay, must — be allowed to voice negative opinions about everything.
If we’re telling the truth.
The truth part is paramount. Once the honesty line is crossed, it’s no longer about free speech. Maliciously or negligently spreading lies about another person or company is unethical — and it’s also against the law. It’s called defamation (slander if spoken, libel if written) and engaging in the act can cost you – big time.
The Main Elements of Defamation
Each U.S. state has a set of slander and libel laws, and although the rules vary from jurisdiction to jurisdiction, overarching federal regulations outline the boundaries of defamation law.
- Publication or Broadcast – Private gossip between two people doesn’t qualify as defamation, but if the “news” goes public, then it may. Information transmitted via emails, blog posts, comments on social media and other websites, newspaper articles, video segments, newsletters, TV spots, public speeches, SMS and text messages can be defamatory.
- Identification – People and businesses can’t win defamation lawsuits if they can’t prove they’re the parties being defamed. Sounds silly, but consider the Internet; most people use online aliases. Which raises the question: how can potential defamation plaintiffs name a defendant if they only know the alleged defamer’s “Internet handle.” (Note: It is possible to pursue a defamation lawsuit against an anonymous defamer, it just requires an additional procedural step, which we’ll get to in a few minutes.)
- Falsity – In the majority of cases, a true statement isn’t considered defamatory. (Go here to read about the exceptions to the rule.) To quote Dominick Dunne: “The law is not about the truth, it’s about the evidence.” If a given statement is, indeed, true, but the plaintiff has convincing evidence to the contrary – evidence that trumps the defense’s – a plaintiff has a shot at winning a defamation lawsuit, even if the statement at issue is true.
- Negligence – Perhaps the most difficult aspect for defamation plaintiffs to prove is negligence or malice. It’s also the most nuanced component, because different rules apply to different people. If you’re a “public figure,” to win a slander or libel lawsuit, you must prove that the defendant knowingly lied to cause you harm. You can’t successfully sue someone for defamation if he or she can prove proper due diligence in disseminating the information. Who qualifies as a public figure depends on jurisdiction. Generally speaking, though, famous people, elected officials, local celebrities, and anybody in the news can qualify as a public figure for the purposes of a defamation lawsuit. If the plaintiff is a private figure, instead of proving actual malice, he or she only has to meet the negligence standard.
- Harm – If a defamation plaintiff can’t prove harm, he or she can’t win. What constitutes harm depends on the alleged lie. It’s best to speak with an attorney to determine if your definition of “harm” meshes with the courts’ definition.
Other Legal Standards That Affect Anonymous Defamation Lawsuits
The above elements define the boundaries of United States defamation law. Below are common legal issues and standards that affect slander and libel cases. Think of the five elements above as the bowl, and these are the food that fill it.
Essentially, privilege addresses protected relationships and conversations. Most people associate “privilege” – in the legal sense – with the confidentiality assurances enjoyed by doctors and their patients or attorneys and their clients. Reporters also enjoy source privileges. Various employment relationships also confer privilege protections, as does the reporting of suspicions (i.e., properly reporting a reasonable suspicion of child abuse to authorities).
Many Defamation Defendants Win On Privilege Grounds
Claiming privilege is a common – and often successful — defamation defense. Board meetings, employment reviews and other supervisory mandates fall under the privilege umbrella.
That said, it is an extremely nuanced aspect of defamation law. If you’re thinking about filing a libel, trade libel or slander lawsuit, speak with an attorney about your specific situation to determine if your case could easily be defeated on privilege grounds.
A common mistake is filing a defamation lawsuit over a slightly inaccurate statement. Those types of cases are almost always defeated using the “substantial truth” defense.
Substantial Truth Examples
Let’s say that John Q. Public stole $1 million from a hedge fund, and then a financial blogger inaccurately reported that he stole $2 million. Even though the information is wrong, the fact that Johnny Q. stole money is accurate, and the exact amount doesn’t change the overall perception – or message — of the blog post.
If, however, a small inaccuracy makes a big difference to the overall impression — or message — of a blog post, John Q. Public could have a viable defamation suit.
Pure Opinion v. Mixed Opinion
The difference between “pure opinion” and “mixed opinion” is a vital distinction in defamation lawsuits.
Pure opinion is a statement based on non-secret, non-defamatory facts. For example, let’s say John Q. Public, who was found guilty of stealing $1 million from a hedge fund in 2005, is running for president in 2016. Reporter Jane X. Doe writes an opinion piece for the WSJ saying she doesn’t think that, on account of his thievery, Q. Public is a good choice for chief executive. In this scenario, John Q. Public probably wouldn’t win a defamation suit against Jane X. Doe because she published her “pure opinion” of his candidacy based on verifiable facts. It’s free speech protected by the First Amendment.
A “mixed opinion” statement is a declaration or judgment based on private, implied or unsubstantiated false facts. For example, let’s say our old buddy, John Q. Public, decides to become a plastic surgeon after being drummed out of the finance world for his $1 million hedge fund theft. Jane X. Doe goes to Q. Public for a nose job and hates the outcome. So, she goes to Yelp! and leaves a nasty review saying:
“I should have checked his record before I chose him as a doctor. John Q. Public used to work for a hedge fund and supposedly he was fired for sexual harassment!”
Since Johnny boy wasn’t fired from the hedge fund for sexual harassment, he’d have a great shot at winning a defamation lawsuit against Ms. Doe in this scenario.
Popular Defamation Defenses
What are some oft-used defamation defenses?
Defamation statute of limitations is between one and three years, depending on the jurisdiction. If you miss the deadline by just one minute, you’re out of luck — no matter how egregious the violation. In several jurisdictions, if the statement in question is on a website, the statute of limitations resets every time it’s republished.
It’s The Truth!
As the saying goes: it’s not defamation if it’s true. To be fair, this adage is only accurate 95% of the time. Truthful statements can be deemed defamatory if the facts and context of the case are just so.
It wasn’t Me
Due to the nature of the Internet, there’s been an uptick of anonymous defamation lawsuits – which correlates to an increase in the “it wasn’t me” libel defense plea. Shared IP addresses have caused havoc in many a current day defamation lawsuit.
(Unsolicited advice: If you’re moving forward with an Internet defamation lawsuit, find an attorney that has already handled Internet libel cases. Aspects of the Web make online defamation cases a bit different than traditional ones.)
It Wasn’t You!
In order to win a defamation suit, plaintiffs must prove that they’re the persons being disparaged. If defendants can prove that they weren’t “talking about you,” they’ll likely win.
I Believed My Statement Was True!
The most difficult hurdle for a defamation plaintiff is proving negligence (if the plaintiff is a private citizen), or actual malice (if the plaintiff is a public figure) on the part of the defendant.
In order to win a slander or libel lawsuit, the plaintiff must prove that the defendant either knowingly or negligently published or broadcast the statement under review. For example, if reporters get stories wrong, but prove sufficient due diligence, it’s not defamation.
Defamation plaintiffs must prove material or reputational harm to win. Businesses defamed on review websites must show that their bottom lines tanked near or on the date of publication. Individual plaintiffs usually have to provide evidence of a lost job, severe emotional harm or reputational damage.
Does The Nature Of The Internet Make Online Defamation Impossible?
What was once a playground for programming geniuses and risk-welcoming ne’er-do-wells, is now a viable, thriving, global marketplace. The Internet is the new Promised Land; a digital Dickensian street, where scammers and honest merchants are yelling, selling and gesticulating for your attention.
And only a smattering of regulations govern online conduct and business.
So, with the way the Internet is, where does defamation fall into the mix?
In a New York Law Journal article, Richard Raysman and Peter Brown weigh in:
Prof. Lyrissa Barnett Lidsky has noted in the Duke Law Journal that the poor grammar, caterwauling, hyperbole, and frequent name-calling associated with anonymous Internet posts has created a “First Amendment doctrine” that “cannot hold John Does to the standards of … factual accuracy, because part of what gives the Internet such widespread appeal, is the fact that it allows ordinary citizens to have informational conversations about issues of public concern.”
Is Prof. Barnett Lidsky saying that information on the Internet can never be interpreted as fact? Well, yeah, she sorta/kinda is. But nearly twenty years into the Digital Age, is that still a fair assumption? Sure, hacker collectives and loose assemblies may pull a prank to make a point, but the days of “Where’d you learn that? Wikipedia. Oh, well, you can’t believe anything you read on there,” are over. We do EVERYTHING online these days. Legally speaking, are we still supposed to view the entire Internet as a sea of cynicism and misinformation?
Bad Clients Happen
What if it was you? What if an impossible-to-please client decided to spread lies about your services online? Sure, we’re all old enough to know that life isn’t fair, but “not fair” and “illegal” aren’t the same. We live in a democracy, not an anarchy – and lying about a competitor to gain a market advantage is against the law.
Believability is a big factor in libel cases. To win defamation rulings, plaintiffs must prove that a “reasonable person” would most likely perceive the information as “factual truth”– not one person’s hyperbolic, opinionated rant. This last part presents a quandary when it comes to the Internet. Because as one judge recently put it, since the Internet is “a repository of a wide range of casual emotive and imprecise speech,” users “do not attribute the same level of credence to the statements they would accord to statements made in another context.”
In other words (and of course, we’re paraphrasing here): everybody knows not to believe everything they read online because the World Wide Web is just a cauldron of opinion and nothing more.
But, as we approach the 21st century’s third decade, the “pish-posh Internet” attitude may be as misguided as former Digital Equipment Corporation CEO Ken Olson’s 1977 prediction that “there is no reason anyone would want a computer in their home.”
The Internet is no longer a novelty platform used solely for porn and the polemics of unstable people (those still exist, of course). Nowadays, we — nearly everyone — lives online. We use the Internet to shop, research, pay bills, communicate with friends and get news.
The reason traditional print media outlets are downsizing and shuttering at alarming rates is directly related to the rise of the Internet.
We no longer rely on big media for “truth.” These days, we turn to websites we trust for daily doses of news and views. And let’s be honest: we tend to trust outlets that parrot our personal views.
But in this environment, where do we draw the ondefamation line? It’s a question the courts are still trying to answer.
When Is A Judge Likely To Grant An Identity Revealing Court Order
Case law regarding identity revealing court orders is all over the map. Some judges will grant discovery subpoenas for the purposes of unearthing an accused anonymous defamer; other judges are more reticent to do so. Generally speaking, judges are more likely to force an ISP to hand over information to would-be defamation plaintiff if:
- The statement at issue is a statement of fact, and the plaintiff can convincingly plead it’s inaccuracy;
- The plaintiff can prove that the statement caused him or her demonstrable harm;
Defamation Cases Where A Judge Granted A Plaintiff An Identity Revealing Court Order
New York Case
Whether or not judges grant anonymous defamation discovery orders has a lot to do with their personal views of the Internet. This subjective reality was recently made crystal clear by a New York judge. In granting a court order, which forced an ISP to hand over identifying information to an anonymous defamation plaintiff, he stressed:
“Maliciously spreading false statements of fact about another person or business is against the law in every corner of the United States.”
And then acquiesced:
“case law across jurisdictions supports the proposition that the forum … of an Internet message board, chat room or blog is a factor that weighs in favor of finding that a reasonable reader would not read a statement as a factual assertion…”
But then ultimately reasoned:
“[the] mere fact that a statement is made on the Internet” does not automatically render it hyperbolic.
Yelp v. Hadeed Carpet Cleaning
An anonymous online defamation case out of Virginia – Yelp, Inc. v. Hadeed Carpet Cleaning — exemplifies a case in which the plaintiff was granted a “subpoena duces tecum” forcing Yelp to reveal the names of seven anonymous posters.
In Hadeed, the judge sided with the plaintiff because he was able to satisfactorily argue, using business records, that the negative reviewers had probably never even used his carpet cleaning service. As such, the judge said that “’factual statements made to support or justify an opinion’” can be the basis of a defamation claim.
In other words, since the alleged Yelp defamers didn’t shop at Hadeed’s carpet store, the case could continue.
When Is A Judge Unlikely To Grant An Identity Revealing Court Order
When judges don’t grant identifying court orders, it sometimes has to do with personal perceptions of the Internet.
Take, for example, the decision in Nanoviricides (NANO) v. Seeking Alpha. NANO, a pharmaceutical company, tried to sue a SeekingAlpha.com user, “Pump Terminator”. According to Nano, Pump’s inaccurate post about the company caused a steep decline in its stock price. But, the judge wouldn’t grant the order. Why? Because of three main factors:
- The web page on which the statement was posted had the following disclaimer in clear view: “the thoughts expressed therein were an expression of the author’s opinion. “
- The judge reasoned that “the author proffered his opinion subsequent to a clear recitation of the ‘facts’ under-girding the opinion.”
- The judge decided that the statement’s appearance on a public online forum automatically qualifies it as an opinion. He reasoned: “[the] fact that the article appears on an internet message board also supports a finding that the article must be an expression of the author’s opinion.”
Speak With A Defamation Attorney
We’ve covered the basics of defamation — specifically online defamation — but it’s an extremely nuanced area of law. If you’re dealing with a situation, and it’s time to speak with a lawyer about the matter, get in touch with Kelly Warner Law. We’re a top-rated firm that’s handled hundreds of anonymous and Internet and trade libel lawsuits. Our track record is excellent, and we always aim to get issues resolved as quickly as possible.
Get in touch today to being a conversation about your online defamation situation.
Both parties in a Texas defamation lawsuit are hoisting gaudy champion belts over their heads. The case is Kinney v. Barnes; the issue: prior restraint as it relates to defamation injunctions. And believe it or not, The Big Lebowski plays a role.
Both Sides Claim Victory In Employment Defamation Lawsuit Kinney v. Barnes
The Electronic Frontier Foundation, alongside two free speech scholars, submitted an amicus brief in response to the lower court’s Kinney v. Barnes decision.
In a blog post, the EFF expressed its delight with the appeal ruling:
“The court…not only rejected the Internet-is-different argument, it took the exact opposite position, emphasizing the role of the Internet ‘as an equalizer of speech and a gateway to amplified political discourse.’”
The court ruled that “post-trial injunctions are prior restraints” – meaning, it’s unconstitutional for a judge to forbid a reporter or blogger from permanently talking about a person, as punishment for a defamation act.
In its amicus brief, EFF argued that permanent injunctions should never be applied as a remedy in defamation cases because slander and libel are largely contextual, and “a statement that it is defamatory in one context may not be in another.”
The Issue of Prior Restraint As It Relates To Online Defamation Lawsuits
Robert Kinney sued his former employer, Andrew Harrison Barnes, over bribery accusations posted online. The current issue at hand is whether or not a permanent injunction (e.g., banning Barnes from mentioning Kinney online ever again) can and should be a remedy for libel.
It’s a fundamental defamation law question, because the Constitution protects against “prior restraint” — laws and legal punishments that universally hinder (restrain) someone or something from voicing an opinion on a topic, person or event.
The Employment Defamation Lawsuit Must Go On
At this point, Kinney can move forward with his defamation lawsuit against Barnes. Ultimately, he hopes to collect damages and get a court order forcing Barnes to remove certain statements from the Web.
Both sides agreed that the defamatory material should be taken down, because as an EFF spokesperson put it: defamatory content doesn’t contribute to the “marketplace of ideas.”
Tip Of The Hat: Coen Brothers
Much to the delight of the Internet – and arguably in an attempt to rack-up some Reddit karma – in the opinion, Justice Debra Lehrmann snuck in a Walter Sobchak (The Big Lebowski) quote: “For your information, the Supreme Court has roundly rejected prior restraint.”
Casino kingpin Sheldon Adelson has been embroiled in a defamation lawsuit for a long, long time. From court to court, the Adelson libel claim hops — motion by motion. And now, in the eleventh hour, it looks like the case depends on the definition of “naked link” and whether or not it’s a footnote or more than a footnote.
The “Naked Link” Ruling
If you’re interested in the finer points of online defamation law, things are getting interesting in the Adelson case. Why? Because the whole thing may turn on whether or not a “naked link” is the equivalent to a traditional footnote.
Why Adelson Sued The NJDC For Defamation
Two years ago, the National Jewish Democratic Council (NJDC) – hoping to make its mark on the presidential election – published an online petition urging Mitt Romney not to take campaign contributions from Adelson. The appeal painted Adelson as a morally corrupt shyster who allowed prostitution in his overseas resorts and funneled foreign money into campaign coffers.
Got Information From Another Lawsuit
Where did the NJDC get their info? From a lawsuit, filed by a former Sands executive, which the NJDC linked to at the bottom of its online petition. Adelson insists the case, on which the claims were culled, is merit-less — rendering the accusations defamatory.
District Judge: Naked Link Is A Footnote And Not Defamatory
Judge Paul Oetken heard the case and ruled in favor of the defense. Oetken reasoned that online source links are the “twenty-first-century equivalent of a footnote” and therefore not defamatory.
Adelson had to pay attorneys’ fees for violating the state’s Anti-SLAPP law.
Appeals Court: We’ve Got Some Thinking To Do About “Naked Links” & Online Defamation
Then came the appeal.
Admittance of Antediluvian Internet Understanding
At the appeal’s hearing, octogenarian Judge Guido Calabresi copped to his “’antediluvian’ understanding on the Internet.” Another panelist, Judge Denny Chin, also voiced confusion as to why the hyperlink is not considered “better” than a footnote.
Lawyers for Adelson asked the court to certify a pair of questions, one being: Does a “naked hyperlink” qualify as a “footnote” for the purposes of an online defamation lawsuit, or is it more?
In an effort to convince the courts that hyperlink citations are a good thing, a lawyer from the defense urged, “In the 21st century, we want to encourage people to do what we did in this petition, which is including the hyperlink [naked link] as a valuable tool for expanding human knowledge.”
If you’re an online marketer, who pushes the legal envelope, read up on people who’ve been caught – because that loophole you think is protecting you, may not be much of a shield.
Kyle Kimoto was a recidivist FTC violator. A perpetual purveyor of negative option and free-to-pay marketing schemes, he’s currently in prison for wire fraud violations. Kimoto recently tried to escape another FTC censure, but failed.
Below, we’ll explain his appeals’ arguments and the reasons they didn’t work.
First, A Bit About Negative-Option Kingpin, Kyle Kimoto
Got Caught By The FTC, Then Opened A Business Under His Wife’s Name
A notoriously aggressive marketer, in 2008 Kimoto was enduring his 3rd FTC investigation. At the time, due to previous FTC “busts,” he was legally prohibited from engaging in certain marketing tactics. At that time, he moved to Las Vegas, registered a new company in his wife’s name, and then hired his old network of coders, designers, marketers, writers, and programmers.
“Stopped” Involvement In “Wife’s Company”
That same year, Kimoto went on criminal trial and insisted he ceased activities in his “wife’s” new Las Vegas-based marketing business. In 2009, after being convicted on wire fraud charges, the FTC caught up with Kimoto’s new operation and swiftly brought suit against it and its principals. Everyone involved, except Kimoto, accepted a summary judgement. He appealed.
Failed Defense Arguments For Recidivist Online Marketer
Online Marketer’s Defense #1: It Wasn’t Me!
Marketer: I Had Nothing To Do With The Company During The Time Period The FTC Said I Did.
Kimoto argued that he completely severed ties with his wife’s company when he started to prepare for his wire fraud trial, and therefore shouldn’t be held liable for any misdeeds from that point forward.
Judges: No Way; You Knew What Was Going On And Even Had Testimonials Before There Were Customers.
The judges didn’t agree. They reasoned that Kimoto helped establish his wife’s business, which was link enough. The panel also pointed out that he helped “structure the deceptive offers” and was aware of the contents of the company’s marketing materials, thereby making him liable — even though he may not have been “hands on” during the period in question. The bench specifically pointed out Kimoto’s egregious use of testimonials before the “products” had even launched.
Online Marketer’s Defense #2: Advice of Counsel
Marketer: Before I launched the scheme I ran it by a lawyer who said it was legal. It’s not my fault.
Kimoto also tried to use the “advice of counsel” defense, which is, essentially: “my lawyer said what I was doing was legal; so, it’s not my fault.”
Judges: Nope. The Defense Can’t Be Used When It’s A Question of Individual Knowledge of Liability.
Judges shot down the “advice of counsel” defense because it doesn’t apply in cases where liability is linked to individual knowledge of a situation.
Online Marketer’s Defense #3: The Jeff Skilling Defense
Marketer: All The Complaints Poured In After I Had Recused Myself From The Company
In an argument very similar to his first, Kimoto tried to convince the panel of judges that he couldn’t have been involved in any scamming because the charge back complaints came flooding in after his criminal trial commenced. In other words, “I had no idea I had done anything wrong; I was gone when it all went to hell.” (Call it “the Jeff Skilling Enron” defense).
Judges: “Sorry, Mr. Frequent FTC Violator, No Go.”
Considering Kimoto’s track record with online marketing schemes, the judges scoffed, pointed to his past infractions, and gaveled that one down.
Online Markete’s Defense #4: EFTA Doesn’t Apply To Little ‘Ole Me
Marketer: The federal law only applies to companies and entities, not individuals.
Kimoto reasoned that the Electronic Fund Transfer Act (EFTA), one of the statutes used to charge him, didn’t cover individual liability.
Judges: EFTA = FTC Act = Personal Liability
The court knocked that one down, too, reasoning that his EFTA violations were also FTC Act violations, which does allow for individual liability.
There’s a certain valiance to fearless folks who refuse to go down without a fight, so a tip of the hat for gumption. Nevertheless, his Hail Mary legal passes fell flat at the 50-yard-line.
In the end, it was FTC 4, Kimoto 0.
Marketing Online? Talk To A Lawyer.
It’s tempting to cross the marketing legal line because let’s face it, “There’s gold in them thar hills!” But know that if you try to skirt FTC marketing regulations, they will come after you. Commissioners can, if in generous moods, go soft on first-time offenders – especially if they have proper counsel. But if the commission catches you creating another illegal honey pot after censure ? The FTC’s gloves come off.
Moreover, just because these defenses didn’t work for Kimoto, it doesn’t mean they won’t work for you. Talk to an FTC Marketing lawyer about the specifics of your situation to learn your options.
Remember: Kimoto went to JAIL.
Are you in trouble with the Federal Trade Commission? If you need a lawyer that has helped hundreds of online marketers with their FTC investigation situations, get in touch with Kelly / Warner Law. We’re one of the early legal firms to build an online marketing team, and we’ve seen it all.
Call or emails us today to start untangling your FTC knot, or to simply review your promotional efforts to ensure you’re in safe, compliant territory.
News Program Used The Wrong Picture For An Alleged Criminal
On October 15, 2011, CBS affiliate KDKA-TV ran a story about the arrest of a man named Christopher William Ghrist. KDKA producers included a picture of Ghrist in the broadcast. The problem? Christopher William Ghrist wasn’t the guy that law enforcement officials picked up; Christopher Wayne Ghrist was.
Misidentified Guy Suffers Because of CBS’ Mistake & Files Defamation Lawsuit
Directly after the program aired, the innocent Mr. Christ received over a hundred unwelcome messages, and his girlfriend wouldn’t let him near their child. He called the station and pleaded with them to fix the error, but to no avail.
It’s unclear why, but according to reports, Ghrist didn’t get around to filing a lawsuit until two years after the fact – on October 4, 2013.
Judge Dismisses Case Because Claimant Missed Defamation Statute of Limitations Cut-Off
Judging from available reports, Ghrist had a strong case. But, he didn’t file it time, as the statute of limitations for defamation in Pennsylvania is one year. Ghrist’s legal team argued that a subsequent online reference to the broadcast re-set the clock, but U.S. District Judge Mark Hornak disagreed, reasoning:
“[In] these circumstances, where the allegedly harmful publication began on or about October 15, 2011, and the content of that publication remained the same thereafter, even on the internet website, the single publication rule provides that the measuring point for counting down the one year statute of limitations also began on that date, and was not ‘refreshed’ each day thereafter that the offending story was accessible online.”
Talk To An Attorney About Your Defamation Situation
Are you dealing with a defamation situation? Are you hemming and hawing about whether or not to file? Don’t wait too long, because you may find yourself in the same situation as Ghrist.
That said, every jurisdiction has different rules about when the defamation statute of limitations clocks re-set. Some calculate from the date of first publication, while others allow the clock to re-set if something is republished – online or off.
If you’re ready to speak with an experienced defamation lawyer, who has helped hundreds of people and businesses with their defamation and trade libel issues, get in touch with Aaron Kelly. An AV-rated attorney, with a 10-out-of-10 rating on AVVO.com, Aaron is a top defamation litigator who knows how to solve problems quickly and effectively. Call or email today to begin the conversation.
When it comes to cybersquatting, sometimes the business competition compliance line isn’t crystal clear.
The Domain Name Scuffle That Started A Business Competition Legal Skirmish
The Hatfields and McCoys of the Washington State roofing industry are suiting up to do battle over a domain name.
The URL at issue is SpokaneCommercialRoofing.com. In 2012, Les Ludtke, of Spokane Commercial Roofing (Roofer A), registered SpokaneCommercialRoofing.com, for one year, and put a website on it.
Fast forward to 2013. Roofer A forgets to renew the domain. Jeffrey Sitton, of Spokane Roofing Co. (Roofer B), noticed Roofer A’s domain name registration lapse, scooped it up, and then forwarded it to his website, Spokaneroofing.com.
Upon realizing that Roofer B had snagged his old domain, Roofer A sent a letter to Roofer B, outlining possible legal consequences for “stealing” his URL and re-directing it. When Roofer B got the letter, he stopped the re-direction. At the time of this writing, the website at issue is a blank white page.
Roofer A now wants the domain, SpokaneCommercialRoofing.com, back. So, he filed a lawsuit, arguing violations of the Anticybersquatting Consumer Protection Act.
Roofer A’s reasoning simmered down to a single sentence:
My competitor “cybersquatted” on my domain, capitalized off my intellectual property, and by doing so engaged in unfair business competition.
If Someone Buys Your Domain Name After A Lapsed Registration, Can You Get It Back?
For starters, domain names aren’t thrown back into the public pool the second a registration expires. It usually takes between 40 – 50 days before another entity can purchase an expired URL.
But what if those 50 odd days passes? Can you still get your domain name back?
Whether or not your hold a formal copyright or trademark for the domain name will figure prominently. However, even if you haven’t registered your domain with the USTPO, all goodbyes aren’t gone.
How To Get A Lapsed Domain Back
Uniform Dispute Resolution Policy
Individuals and businesses caught in the middle of domain disputes can take their case to the Internet Corporation for Assigned Names and Numbers (think: Guardians of the Galaxy, Domain Name Department). ICANN reviews cases using the Uniform Dispute Resolution Policy, and the panel’s rulings are usually (not always) upheld in a court of law.
You must pay ICANN a fee to review your case; the cost is dependent on how many “judges” weigh in on the issue.
Proper Paperwork Matters When Filing UDRP Review Requests
UDRP filings are complicated; one wrong check-mark will land you in the rejection pile. So, if you plan to go the ICANN/UDRP route to deal with your cybersquatting scenario, enlist a lawyer who has dealt with ICANN in the past and knows the ropes.
File A Lawsuit Using The Anticybersquatting Consumer Protection Act
Federal Law For Registered and Common-Law Trademarks
Enacted in 1999, the Anticybersquatting Consumer Protection Act shields trademarked domain names from ne’er-do-wells. Businesses with trademark-registered URLs and companies with established reputations in their industries (common-law trademark), can use the act (in most cases) to prevent domain theft — even if the URL registration has lapsed.
In most cases, to win Anticybersquatting Consumer Protection Act claims, plaintiffs must prove that defendants profited from their actions.
Generic Keyword Domain Names Requires Experienced Representation
If your domain name is also a generic keyword (like the Roofer lawsuit above), the decision may come down to the quality of each side’s arguments. After all, is it fair to trademark a keyword phrase that every business, in a given industry and region, must use to rank well in search engines? If you decide to go the lawsuit route, find an attorney who has successfully handled business competition cybersquatting cases in the past.
Contact A Business Competition Attorney With Cybersquatting Law Experience
Kelly / Warner Law is atop-rated legal practice, with a 10-out-of-10 AVVO rating.
A law firm for today’s marketplace, all Kelly / Warner attorneys have strong Internet law backgrounds.
Kelly / Warner’s litigation record is exemplary; moreover, we’re a practice of straight-shooters who will tell you the quickest, and least costly, path to overcome your challenge.
It’s time to get it done. It’s time to solve your cybersquatting problem. Give us a call or send an email, today.