Monthly Archives: January 2015

Is Yelp Scamming Businesses? FTC Says “No.”

Yelp scamming businesses
Sorry Small Business Owners, The FTC Says Yelp’s Advertising Policies Are Perfectly Legal.

In this post:

  • Is Yelp scamming businesses via their advertising model?
  • Advice for people dealing with negative Yelp reviews

Dear FTC: Is Yelp Scamming Businesses or Not?

“Yelp! (“Yelp”) is a pay-for-play sham!” For years, that was the accusation. So, the Federal Trade Commission investigated. Unfortunately for small business owners, after said investigation, the FTC deemed Yelp’s business procedures to be 100% fair.

In a triumphant blog post, Yelp spokesperson Vince Sollitto wrote:

“The FTC recently concluded a deep inquiry into our business practices and informed us that it will not be taking any action against Yelp. The FTC looked into our recommendation software, what we say to businesses about it, what our salespeople say about our advertising programs, and how we ensure that our employees are not able to manipulate the ratings and reviews that we display on our platform. After nearly a year of scrutiny, the FTC decided to close its investigation without taking further action. This marked the second time that the FTC had looked at our advertising practices and ended its inquiry without further action.”

This FTC’s Yelp decision is a big deal – for both Yelp and small business owners. For years, there’s been rampant speculation that Yelp was a pay-to-play platform. A group of entrepreneurs even launched a class action suit against the consumer review website. But Yelp prevailed in that kerfuffle, too; the judges ultimately ruled that the website’s tactics amounted to “hard bargaining” – a perfectly legitimate business approach under U.S. law.

You Can Still Mitigate The Effects Of Damaging Yelp Reviews

Do these rulings mean there’s no way to successfully sue someone over a defamatory review posted on Yelp or another consumer review website? No. If a customer or competitor posts a false statement of fact about your business online, there may be grounds for a defamation, trade libel, or false light lawsuit – even if the negative review is anonymous.

If someone posts a negative review on a Yelp page, and you’re interested in legal options, get in touch with Kelly / Warner. We’ve helped hundreds of businesses overcome issues related to online consumer reviews. In many instances, we’re able to get the offending material removed.

Get in touch today to learn more about your legal options regarding defamatory reviews on Yelp and other consumer review websites.

Even though the “Yelp scamming businesses” trope isn’t legally viable, it’s still possible to get defamatory reviews removed from the consumer review website. Get in touch to find out how.

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Former Employee Defamation: A Legal Introduction

former employee defamation
What are your options of an ex-employee decides to disparage your business online?

This post explains the basics of employee defamation law via a case study. If you have questions for an attorney that handles employee defamation cases, click here.


A disgruntled employee trashes your company online. What are your legal options? One possibility: sue for defamation – which is precisely what a law firm in Texas did.

Former Employee Defamation Case Study: Hammond Law Group, PLLC v. Kwok

Here are the known facts of Hammond Law Group, PLLC v. Kwok — an employee defamation lawsuit:

Currently Known Facts Of The Case

  • Wing Ching Kwok – a.k.a. Leo – worked at the Hammond Law Group (“HLG”) for about five months.
  • The working relationship between Kwok and HLG wasn’t an employee-employer match made in heaven.
  • A few months into Leo’s employ at the firm, the parties decided to part ways.
  • Former employee Leo vented about his ex-employer, HLG, on review websites like,, and Samples of his posts include:
    1. “Do not hire this firm to resolve your tax issues. They will overcharge you thousands of dollars, then toss your stuff aside to collect dust.”
    2. “They are only willing to hire law students for an ‘unpaid internship,’ then go on to make you do mostly paperwork.”
    3. “Do yourself a favor and find another place to handle your tax liens and wage garnishments and such. You will be saving yourself time, effort, and thousands of dollars.”
    4. “Only two people working on 100+ cases…”
  • Convinced of Kwok’s authorship, HLG brass contacted him and asked that he cease posting “false and defamatory” content.
  • Since Kwok was never a firm client, he agreed to remove his rants on and Yelp. He also promised not to post subsequent reviews of the firm “as a customer.” But Kwok left the criticism on because, in Kwok’s words, “I have made no false claims [on] since I was a legitimate previous employee.”

What Plaintiffs Must Prove To Win An Employee Defamation Lawsuit

It’ll be interesting to see how this defamation lawsuit between a disgruntled employee and employer resolves. To win, HLG will have to prove (generally speaking, every case is different) that:

  • Kwok made a false statement of fact about HLG;
  • The statement materially hurt HLG in some manner; and
  • Kwok negligently published the false statement of fact.

Point 3 wouldn’t be difficult to prove in this instance if — (and in a defamation lawsuit that “if” is the ultimate crux of the case, as truth trumps all in many libel and slander cases) — Kwok isn’t telling the truth. But the plaintiffs may have a hard time proving point 2. After all, Kwok removed most of the offending material in a timely manner, so the harm caused is probably up for debate.

Moreover, the comment Kwok left on wasn’t client-focused, but instead about the HLG office atmosphere. Since both sides concede that Kwok worked at the firm, his views on the HLG work environment are valid – or at the very least legally acceptable; after all, free speech is free speech — even when we don’t agree.

Given the statements at hand, intrinsically, the potential false statement of fact with the most “actionable heat” is the one on If the assertion isn’t true, the law firm has a shot. If it is, well…

At this point, it’s impossible to predict a victor.

Speak With A Business Defamation Attorney

If you need a defamation lawyer, consider consulting with Kelly / Warner. We’re an AV-rated, well-regarded legal practice that handles all manners of slander and libel lawsuits. Our success rate is enviable, and we know the libel/slander niche exceptionally well.

Kelly / Warner lawyers can clear up your online reputation or former employee defamation challenge – quickly and quietly. We look forward to speaking with you soon.

Do Foreign Companies Have To Follow FTC COPPA Regulations?

do foreign companies have to follow FTC COPPA rules
Must you adhere to FTC COPPA regulations if you’re outside the U.S.?

Do Foreign Companies Have To Follow FTC COPPA Rules? (Yes!)

Can the U.S. Federal Trade Commission fine foreign websites and apps for not following state-side online marketing regulations? It sure can. Here’s the Internet marketing legal line: All commercial products and services available to U.S. citizens are subject to FTC regulations.

BabyBus COPPA Violations: Example of a Foreign Businesses Being Investigated By The FTC

Recently, Chinese app developer BabyBus Network Technology Co. (“BabyBus”) learned the answer to the question, “Do foreign companies have to follow FTC rules?,” when the Asia-based developer got a Children’s Online Privacy Protection Act (COPPA) violation warning:

“Because you are collecting precise geolocation information, which is considered ‘personal information’ under the rule, you must provide notice and obtain verifiable parental consent before collecting, using, or disclosing this information. Your failure to do so appears to violate COPPA and its implementing rule.”

Exhibiting a bit of Internet law diplomacy, the Federal Trade Commission gave BabyBus a month to review its product to make necessary changes.

The next time someone answers “no,” to the question: “Do foreign companies have to follow FTC COPPA regulations,” set them straight using the BabyBus example.

What Are The Main Things To Remember About The Children’s Online Privacy Protection Act (COPPA):

  • If your commercial website, app, or platform is used by children younger than 13, you must adhere to restrictions outlined in the Children’s Online Privacy Protection Act.
  • Without parental/guardian consent, it’s against regulations for commercial websites, apps, and platforms to collect personally identifiable information about people younger than 13.
  • There are specific COPPA rules regarding acceptable parental consent. For example, simply collecting a credit card number doesn’t meet standards. To make compliance easier, the FTC recently approved a program in which developers can submit their “parental consent gathering” apps for COPPA safe harbor certification. If the FTC accepts an app or platform for the program, said app or platform can be incorporated into websites and software. It’s akin to blogs using a program like “Disqus” as a commenting engine.
  • Even if minors aren’t your target demographic, if you have “actual knowledge” that they’re using your commercial site or software, platform or application, then you’re beholden to COPPA regulations. You’re best bet is to consult an FTC marketing lawyer to make sure you’re in the legal clear.

What Does ‘Commercial’ Mean In Regards To The Children’s Online Privacy Protection Act?

Unsure if your website would legally be considered “commercial” by a court? Have an Internet lawyer look at it. You may not think your website is “commercial,” but a plugin or process may deem it so in the eyes of the Federal Trade Commission.

Get An FTC Marketing Audit

Do you run a commercial website or app that a child may use? Have you developed an app, platform or plugin that could be deployed on a commercial website that a kid might visit? If yes, then you should be aware of regulations laid out in the Children’s Online Privacy Protection Act. An FTC marketing lawyer can review your operation and let you know if your product or service is beholden to COPPA.

The next time someone answers “no” to the question: “Do foreign companies have to follow FTC COPPA regulations,” you can set them straight using the BabyBus example.

Kelly / Warner offers COPPA audits. They’re inexpensive and could save you a major FTC COPPA investigation headache. Get in touch today to learn more.

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Professional Defamation Case Study: Mogul v. Mogul

professional defamation case study
A judge tossed a professional defamation lawsuit between two moguls.

In This Article:

  • Explanation of a professional defamation lawsuit between two high-profile moguls;
  • Explanation of what one must prove to win a slander or libel lawsuit; and

Casino mogul Steve Wynn lost round one of his professional defamation lawsuit against financier James “Jim” Chanos. Wynn has till January 15, 2015 to appeal – and according to all reports, he plans to do just that.

The Wynn v. Chanos slander lawsuit is a good one to review because it touches on an important crux of American defamation case law – the all-mighty First Amendment.

Why Did Wynn Sue Chanos For Professional Defamation?

Chanos At A Lecture: “The SEC investigated Wynn.”

A lecture circuit veteran, earlier in the year, Chanos spoke at the University of California at Berkley. During the event, he mentioned an abandoned federal investigation into Wynn’s business for possible violations of the Foreign Corrupt Practices Act. Ultimately, the investigation went nowhere; officials didn’t find “reliable evidence of FCPA violations.”

At the Berkley lecture, Chanos noted the SEC’s investigation and that it didn’t illuminate any evidence against Wynn Resorts Ltd and related parties.

Wynn Filed Lawsuit

Wynn wasn’t pleased with Chanos’ lecture. So, in September 2014, the casino king filed a professional defamation lawsuit against the money man.

Judge Sides With Chanos Because Wynn Made Too Big Of A Leap

District Judge William Orrick explained his ruling in favor of Chanos:

“It takes a significant inferential leap to conclude that Chanos’s general uncertainty about the questionable business methods in Macau equates to an assertion that Wynn violated the FCPA.”

No False Statement of Fact

To win a U.S. defamation case, the claim must be centered on a false statement of fact, not an opinion or speculation. After all, if it were against the law to speculate about businesses, politics, or people, the news and entertainment industries wouldn’t exist.

What must plaintiffs prove to win defamation of character lawsuits in the United States?

Generally speaking, to win a defamation of character lawsuit – whether personal or professional – the plaintiff must prove, at the very least, that the defendant:

  • Published, broadcast or otherwise distributed a false statement of fact about the plaintiff;
  • Caused material harm to the plaintiff;
  • Acted with reckless disregard for the truth or actual malice.

Don’t be discouraged by our country’s defendant-friendly defamation laws. Every year, many businesses and professionals win slander and libel lawsuits. Yes, free speech trumps a lot, but it doesn’t give anybody the right to spread lies about a person, place, organization, or business.

If you’re the target of a highly inflammatory review, a ruined online reputation, or if you’re simply interested in getting content removed from the Internet, get in touch with Kelly / Warner Law.

Speak With An Attorney About Your Professional Defamation Situation

Since Kelly / Warner’s inception, our lawyers have focused on Internet libel issues. We know the niche well and have guided –step-by-step – hundreds of individuals and businesses to successful resolutions of their professional defamation hiccups.

Internet Law: Can You Get A Video Removed If You’re In It?

online intellectual property Internet law attorney

  • An actress is trying to get a video, in which she performed, taken down from YouTube;
  • Discussion of “fixation” as it relates to Internet intellectual property law; and
  • Contact information for an cyberlaw attorney.

In a recent blog post, Eric Goldman deconstructed Garcia v. Google – a copyright lawsuit that could profoundly impact Internet law standards. The case basics: an actress wants to copyright her performance in a YouTube video so she can then file a DMCA take down request. Why does she want to get the material removed from YouTube? A possible fatwa.

The case is noteworthy because it could potentially upend established case law related to Section 230 of the Communications Decency Act. And a “wrong” ruling in Garcia v. Google could warp-drive us into what Goldman dubs a “parallel-copyright-law-universe.”

The Issue: Actress Looking To Escape Cultural Offense Wants Video Removed From YouTube

Actress Cindy Garcia appeared in the controversial video “Innocence of Muslims” — for a mere five seconds. In the finished film, her voice wasn’t used; her screen time features a voice over. Unfortunately for Garcia, some Muslims were offended by the dubbed audio statement accompanying her visage in the film. So, to shorten a long and controversial story, some factions suggested a fatwa against the actress.

Looking to avoid conflict, Garcia asked YouTube to remove the video – Google (YouTube’s mother ship) refused. Determined, Garcia did the next best thing and tried to gain copyright control of her performance so she could file a DMCA takedown notice.

Important Internet Law Legal Consideration: Does Garcia Have The Power To Get The Video Removed From YouTube?

As an actor, Garcia didn’t have an executive stake in the film. So, she tried to claim ownership of her performance.

Goldman explains that the legal crux in Garcia is “fixation”: for a party to have a legitimate copyright claim, the work in question must be “fixed” – as Goldman puts it – “in a tangible medium.”

A performance written, produced and directed by other people, however, should not be a viable stake on which a copyright claim can be waged. If it were, actors of all stripes – from extras to superstars – would become an unstoppable copyright troll horde. Every single one of them would be able to exercise legal control over any work in which they appeared.

An appeals panel is currently hearing arguments in the case. In the meantime, Goldman’s article is well worth the read and explains the issue at hand in more detail.

Speak With An Attorney Well-Versed In Online Copyright Matters

If you’re in search of an attorney for a similar matter, contact Kelly / Warner law today. As one of the first firms to concentrate on Internet law, we’ve helped countless clients with various digital legalities – both routine and litigation. Get in touch today to begin the conversation.

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Arizona Revenge Porn Law “On Ice.” Can You Still Get Pics Removed?

Arizona revenge porn lawyer
Arizona officials have put the state’s revenge porn law on hold. Does that mean revenge porn perpetrators are off the hook?

Last April, the state passed an Arizona revenge porn law. Controversial from the start, free speech advocates abhor the bill’s broad language. In fact, the American Civil Liberties Union even sued the state for First Amendment violations. As a result, Arizona District Judge Susan Bolton has officially tabled the state’s revenge porn law until further notice.

Does that mean you can’t get sensitive material removed from the Web now? No, it doesn’t. Depending on the circumstances, other options are available. Your best bet? Consult an Internet law attorney with specifics.

Why Are People Upset About Arizona’s Revenge Porn Law?

What’s the fuss about Arizona’s revenge porn law? Censorship concerns.

Argument Against Arizona’s Revenge Porn Law

In the ACLU’s revenge porn lawsuit against Arizona, the civil rights advocates are representing booksellers concerned about the bill’s language. They believe the statute could land them in trouble for selling art books – and war books – that contain nude or graphic images.

David Horowitz, executive director of the Media Coalition – a group supporting the ACLU’s revenge porn lawsuit against Arizona – explained the apprehension:

“The range of material that this law could bring in was hugely over-broad, it went far beyond anything you would think of as sort of malicious invasion of privacy.”

Argument For Arizona’s Revenge Porn Law

State politicians – who unanimously passed the revenge porn bill – seem willing to put the law on ice for the time being. They don’t, however, seem optimistic about satisfying the demands of the American Civil Liberties Union. State Representative J.D. Mesnard remonstrated:

“Given my willingness to [re-examine the language of the Arizona revenge porn law], it made sense to say, well let’s see if we can get an agreement to hold off on the bill for now and make some changes in the next session. We may end up right back where we are now because some of the issues the ACLU brought up, I don’t think they’ll ever be satisfied.”

Speak With An Arizona Revenge Porn Attorney

Authorities won’t rectify the issue until the House reconvenes and politicians agree on a compromise — which could take many months.

But there are ways to combat revenge porn now – with or without a specific law.

If you’re an Arizona revenge porn victim in search of a solution, get in touch with Kelly / Warner Law today. We’ve successfully helped over 200 people get revenge porn material removed from the Web. Rest assured, ways exist.

Get in touch today, and we’ll start solving your Arizona revenge porn problem.

For a state-by-state rundown of revenge porn laws, click here.

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