Monthly Archives: November 2014

Hey Tech Startups! Ever Think About Basing Your Business In Estonia?

Estonia Tech Startup Deal
Is Estonia the right jurisdiction to register your online startup or business? They sure hope so.

Estonian officials want a few good netizens! The Baltic nation is offering official “e-Stonian” status — and a “dot es (.es)” domain — to foreigners willing to part with £ 40 (US $63). Criminals need not apply.

Why Do Estonian Officials Want Online Businesses To “Set Up Legal Shop” In Estonia?

Is Estonia’s push for e-migrants a Borg assimilation campaign? Will “all your everything” belong to Estonia if you take them up on their e-migration offer?

According to experts, all e-migrants are safe in e-Stonia. The country just wants to attract tech investors. And, these days, who doesn’t. Estonia’s just taking it one step further and advertising.

E-Stonia: It’s Worth A Look. No, Really.

Truth be told, Estonia’s offer may be downright attractive to many businesses. A digital-friendly nation, Estonian policies are decidedly 21st century. For example:

  • Estonia’s No-Prying Policy. “By law, the state may not ask for any piece of information more than once, people have the right to know what data are held on them and all government databases must be compatible, a system known as the X-road.”
  • Digital Taxes. Estonia has an e-tax system that “takes less than an hour to file, and refunds are paid within 48 hours.”
  • Wired Woodlands. That’s right, accessing WIFI in Estonia’s vast forests is not a problem.
  • E-Everything. Estonians are so proud of their technological prowess that they sometimes refer to their nation as e-Stonia. Everything is “e” in Estonia. e-elections, e-taxes, e-police (maybe I was wrong about the borg thing!?), e-healthcare, e-banking, and e-school.

(Besides, Estonians seem pretty chill.)

What you get as a business with Estonia e-migrant status:

  • Estonia Bank Account
  • Ability To Sign Documents Under That Country’s Laws
  • Ability to Launch and Manage Estonian-Based Businesses From Abroad
  • Ability to Encrypt Files

What You Won’t Get With An Estonian E-Migrant Card:

  • Full Legal Residency
  • Permanent Right of Entry
  • Full Citizenship

Think Estonian e-migrant status may be beneficial for your startup? Get in touch with Kelly / Warner to explore your options.

Trade Libel Case Study: Web Development Firms v. SMBs

online trade libel lawyerIn this post:

  • Review of an online trade libel lawsuit  involving a Web / SEO company
  • Explanation of the difference between free speech and defamation
  • Tips on how Web development and online marketing firms can protect against Internet trade libel
  • Contact information for online trade libel lawyer

It happens a lot: a small business owner hires a Web firm to update its website or manage an online marketing campaign; expectations aren’t met; the business relationship devolves into a trade libel lawsuit.

That’s exactly what happened between Spot Shooter Archery – a sporting goods store — and Five Sparrows – a Web development and online marketing firm.

The case raises three defamation law questions:

  • Does the First Amendment protect all negative consumer reviews?
  • Why do relationships between Web development firms and SMBs often disintegrate? Is it a matter of weak contracts and tech-talk miscommunication?
  • What does it take to win a trade libel or professional defamation lawsuit?

We’ll explore these issues by deconstructing Five Sparrows vs. Spot Shooter Archery.

Online Business Defamation Case Study: SMB v. Web Firm

The Relationship

  • Five Sparrows offers website development, SEO and online marketing services.
  • Jim Beasley is the owner of Spot Shooter Archery – a hunting and target archery store.
  • Beasley hired Five Sparrows to upgrade Spot Shooter Archery’s website.
  • Both Spot Shooter Archery and Five Sparrows belong to the same business networking group.

Google Plus Accusations

According to small business owner Beasley, his website upgrade wasn’t successful. Alleged functionality issues and status quo traffic had the archery guru seeing red. In frustration, Beasley pounded out a 1-star review on Five Sparrow’s Google + page. It reads:

“Please do not deal with this company”

“After almost five months and several thousand dollars, our e-commerce store is still not done and we have zero return [sic] on our investment. They talk a great game [sic] but you will lose your money. Five Sparrows has hurt our store’s finances. We have tried to work with them [sic] but I’m giving up! PLEASE STAY AWAY!”

Beasley also sent a bemoaning letter to their business networking group.

Web Developer’s Online Trade Libel Lawsuit

Five Sparrows – the Web/SEO firm – tells a different tale than store owner Beasley. According to Five Sparrows, Spot Shooter Archery’s shopping cart and contact form were “fully functional” and featured added search engine optimization elements.

In addition to the derogatory Google + review, Five Sparrows also took issue with the letter Beasley sent to the networking group. So, to restore its good reputation, the Web firm filed a defamation lawsuit.

Free Speech v. Defamation

Does Beasley have the legal right to post a negative review about Five Sparrows’ services? Absolutely. Just as Spot Shooter customers can write negative reviews of the store. The First Amendment guarantees this fundamental free speech right.

But what isn’t legal is publishing or distributing false statements of fact about another person or business. Doing so is defamatory, and it is against the law from sea to shining sea.

Five Sparrows, however, contends that the lawsuit is not about “negative comments” or trying to silence a critic – it’s about a false statement of fact, because in the estimation of the Web developers, they satisfied every contractual obligation.

What Businesses Must Prove To Win Online Defamation Lawsuits

Can Five Sparrows win this online trade libel lawsuit? To do so, the Web firm would need to satisfy the four pillars of U.S. defamation law:

  • Publication or Broadcast: A statement must be made public, in print, electronically or verbally.
  • Falsity: The declaration under review must be an unprivileged false statement of fact.
  • Harm: The material in question must cause the plaintiff material or reputational harm.
  • Intent: The plaintiff must prove that the defendant acted with either negligence or actual malice.

Trade Libel Lawsuits Involving Web/SEO Firms Are Common

Marketing and Web development firms frequently find themselves the target of terrible online reviews. Why is that? Simply stated: Internet marketing and search engine optimization aren’t exact sciences.

It’s a shame, too, when relationships sour between small businesses and Web development firms, because nine times out of ten the bad blood is a result of ill-communicated expectations.

To avoid SMB/Web Development trade libel lawsuits, firms should explain mitigating factors – like the nebulous, mercurial nature of the ever-mighty Google algorithm. Furthermore, Web development and SEO firms should use client contracts that protect against uncontrollable market factors and “project creep.”

TL;DR: Free speech doesn’t mean you can publically lie about people or businesses. Doing so is defamation, and it’s illegal. But in order to win a defamation lawsuit, you must satisfy the four pillars of libel. SMBs and Web development firms often clash to the point of online trade libel lawsuits — all because of poorly communicated expectations on both sides. Detailed contracts and per-work-commencement discussions usually squelch problems between the two parties.

Contact An Online Trade Libel Lawyer

Do you have an Internet trade libel issue? Are you ready to speak with an attorney? If yes, contact Kelly / Warner today to get started. To read more about our team, go here. To get in touch, head on over here. For ratings, we invite you to click on the BBB, AVVO and AV logos in the footer.

*Please Note: Kelly / Warner does not represent either party discussed herein; nor do we have a public opinion on its merits. We’re simply using this online trade libel case to explore aspects of business defamation law.

Domain Law: You Can’t Hold A Domain Hostage

Domain Name Trademark Law
Domain Name Trademark Law Case Study: WWE v. Cybersquatter

What happens when you own a domain name trademarked by someone else, and that someone wants it back? Do you have to give it up? Can you demand money for the prized URL?

We’ll answer these questions by reviewing a domain name trademark law case involving the WWE and an Internet entrepreneur.

WWE: A Brief History of Intellectual Property Disputes

World Wrestling Entertainment, Inc. (WWE) has a few intellectual property scuffles under its gaudy belt.

  • In 2002, the organization locked horns with World Wild Fund over the “WWF” acronym, and lost.
  • In 2007, the WWE entrusted a domain trademark claim to an arbitration panel, and won.

The WWE’s Domain Name Trademark Law Smackdown

A domain name dispute anchors the WWE’s latest online intellectual property showdown. And with proper wrestling panache, the opponent, Emad Ibrahim, is vowing domain vengeance.

Emad Ibrahim: Domain Name Marketer

Ibrahim owned (and may still own) several clever URLs including www.wwe.org. One day, a representative from World Wrestling Entertainment (WWE) contacted him and asked for the domain. Ibrahim agreed to give it up under one condition: he wanted $50,000.

WWE To Domain Name Owner: We Refuse To Pay You That Much For OUR Domain!

WWE refused, arguing that $50,000 was way over the “fair market value” for the URL. So, instead of throwing some dollars Ibrahim’s way, the WWE took the matter to the National Arbitration Forum, who, in-turn, sided with the wrestling association. Ibrahim was forced to give up wwe.org, for nothing.

“Cybersquatter” Vows Revenge Against Trademark Holder

Ibrahim did not accept the ruling with aplomb. Instead, before handing back his prized domain possession, he posted the following on wwe.org:

“You said I was threatening and blackmailing you; no I was not. This time I am. And I am not afraid of your stupid multi-billion dollar corporation.

“You will be fighting with your trademark to claim the upcoming thousands of WWE-related domains. You will also be fighting for your business welfare, which will be destroyed by these domains’ websites that will be identical to your wwe.com website.”

Can The Cybersquatter Reverse The Arbitration Decision And Prevail Against WWE?

You’re wondering: Does Ibrahim he have a legal leg to stand on? Was wwe.org wrongfully stripped from his domain arsenal by “the man”?

Well…….

UDRP and Arbitration Decisions Can and Have Been Overturned

On one hand, it’s possible to win a domain name trademark lawsuit after striking out with the Uniform Domain Dispute Resolution (UDRP) or arbitration processes. But a legal win is only possible if the UDRP or arbitration panel decisions were flat-out wrong, like in a recent case involving a medical facility.

So, theoretically, yes, Ibrahim may be able to wrestle back his domain via a lawsuit.

But……..

The Anti-Cybersquatting Act

In order to do so, Ibrahim would have to overcome protections in the Anticybersquatting Consumer Protection Act, which, essentially, gives trademark holders exclusive rights to the URLs donning their trademarks. As such, Ibrahim’s legal leg, in this instance, is exceptionally precarious.

It’s never wise to say never, but in this scenario, it’s suitable to say: Our domain protagonist has almost no shot at winning this domain name trademark law battle against the WWE.

Do you have a domain dispute trademark law issue? Get in touch with Kelly / Warner law.

Facebook Defamation Law: Boycott Pages

Cartoon of disgruntled people to accompany blog post about Facebook boycott law
Facebook boycott pages can be brutal and bottom line crushing, which raises the question: What can business owners do to combat coordinated social media attacks?

Case Study: Consumers Create A “Boycott” Page on Facebook

According to company president John Dowd, Sundance Vacations had been in business for twenty-three years – largely without issue. But in its 24th year, all bytes broke loose. A disgruntled client created a “Boycott Sundance Vacations” Facebook page.

Needless to say, Sundance experienced a Titanic-sized sinking. According to Dowd, the Facebook boycott page was “the single worse thing that’s happened to [Sundance].”

Due to plummeting sales, precipitated by the disparaging profile, the travel company had to lay off over one-hundred employees.

Sundance eventually sued Facebook for defamation but lost. The social media platform won by arguing immunity under Section 230 of the CDA.

Can Business Owners Demand That Detractors Take Down Facebook Boycott Pages? Can The Page Creators Be Sued For Defamation?

Sundance’s failed Facebook defamation suit should not be a deterrent to businesses wanting to pursue Internet defamation lawsuits. It can be done; it has been done. But to increase the likelihood of success, enlist an attorney well-versed in online libel litigation.

Someone Created A Facebook Boycott Page About Your Business? Follow These 3 Steps.

What should you do if disgruntled customers, patients, or clients create Facebook boycott pages about you or your business?

First: Stay calm. Don’t snap and start railing against your detractors. It’ll just make you look:

  1. Crazy,
  2. Unaccommodating, or
  3. Overly defensive (and therefore suspect).

Second: Private message the Facebook boycott page and try to resolve the issue amicably. Be accommodating, not imperious. Respectfully prostrate yourself before their complaint. Ask what you can do to make things better. Don’t compromise your values, but be conciliatory — if possible.

Third: If your Facebook boycott detractors still refuse to negotiate a solution, then it’s time for legal action.

Elements of Defamation Under U.S. Law

Before you contact a lawyer, think about the validity of your case. Be honest with yourself. Are the Facebook baddies telling the truth? Because if they are, their actions are not defamatory.

Defamation is more than just negative, disparaging talk. In order for a statement to be legally defamatory, the plaintiff must prove that:

  1. The defendant was the party that published or spoke the contentious statement(s);
  2. The contentious statement(s) were false, unprivileged, and about the plaintiff;
  3. The plaintiff suffered either material or reputational harm as a result of the defendant’s statement;
  4. The defendant acted either negligently or “with actual malice.”

You will NOT win a defamation case solely because someone posted a negative quip about your business. Negligence, harm, and falsity must also be proven to win.

We’ve Dealt With Facebook Boycott Defamation Conflicts

Kelly / Warner was one of the first law firms to focus on Internet defamation. Our team has successfully guided hundreds of businesses and individuals through all types of online business litigation. An AV-rated law firm, Kelly / Warner enjoys a high success rate.

Call or send a message today to begin a conversation about your Facebook boycott challenge.