Ever since Yelp! (“Yelp”) debuted on the digital scene, the online review website—currently worth over $3 billion – has been a hot topic amongst lawyers, marketers and small business owners. Though the platform serves as an effective – and inexpensive – marketing tool for countless companies, it’s not without criticism.
Bluntly stated: many people think Yelp is a big ole extortion racket that unfairly bilks startups and small companies.
Is the Yelp criticism fair? Or are the objections simply whimpers from people who expect something for nothing?
Yelp Critical Documentary Sets Out To Explore How Yelp Works and If It Is Fair To Small Business Owners
Neutrally speaking, both sides probably have a point – and a documentary team is in the process of exploring the issue. Pressers are referring to it as a “Yelp critical documentary”.
Listed on Kickstarter.com (and now fully funded), the film’s working title is “Billion Dollar Bully”. The documentary’s central question: Is Yelp engaging in “extortion, review manipulation and review fabrication?” According to Billion Dollar Bully’s Kickstarter page, they are providing arguments “for and against.”
Yelp Lawsuits: Online Reputation, Fraud and Unfair Practices
Over the past five years, Yelp has become fertile soil for unfair competition and business defamation lawsuits. Small business owners are suing people who post false, highly inflammatory reviews; Yelp is suing small business owners for allegedly “gaming” its platform. Last year, a group of SMBs even filed a class action suit against Yelp over the company’s advertising and display procedures (Levitt v. Yelp)
Small Business Owners Suing Posters Are The Most Successful
Generally speaking, the most successful Yelp lawsuits are ones in which a business owner sues a poster for making a false statement of fact about a product or service. But remember: a false statement of fact is not the same thing as a negative opinion. Sharing an unflattering opinion via Yelp isn’t defamatory, it’s perfectly legal criticism.
Consult With A Yelp Lawyer
If you’re a small business owner who is dealing with negative reviews on Yelp, Kelly / Warner can help clear up the situation. Our firm focuses on Internet law issues and has successfully handled hundreds of online reputation cases. Often, it only takes a letter from an attorney to get a false review removed from Yelp.
Ladies and gents, we’re entering a new era of the Internet. For some time now, we’ve been freed from boring, generic top-level domains, like .com, .net, .org and .biz. Now, we can feast on spicy gTLDs, like .tv and .[your hometown].
And digital things are about to get more attention-grabbing, because .suck is now an available option. [Get ready judges, because we sense a new wave of Internet defamation lawsuits is on the way.]
Vox Populi Registry Ltd. “owns” the rights to the new gTLD — and is responsible for the roll out. The company makes money any time someone buys a .suck website.
How Much Do The “Suck Sites” Cost?
Currently, .suck domains are only available to celebrities and trademark holders. This rarefied group must shell out around $2,000 per URL. According to reports, the company selling the .suck domains priced them high to deter malicious, cybersquatting actions.
In September, however, we “regulars” who want to own the .suck sites, for our businesses or names, can buy them for $9.95. However, if you choose this option, forget about using a website design of your choosing. Instead, you’re limited to using the registrar’s generic forum platform.
Is The .Suck Scheme a “Predatory Shakedown”? The Mega-Corps Think So.
Guess who isn’t happy about the .suck top-level domain option? Giant corporations, including Microsoft, Ebay and Verizon.
The mega-corps are so concerned about .suck sites that they’ve sicked one of their lobbying groups on the issue. Formally, the group has asked that the .suck roll out be postponed, calling it a “predatory…shakedown scheme.” Moreover, the companies believe that the general sign-up set to commence in September is “an essential element of Vox Populi’s coercive scheme.”
And the big wigs may get their way, as ICANN has yet to shoot down the lobby group’s request. As you probably already imagined, Vox Populi insists that it isn’t doing anything against the law or ICANN regulations.
The Consequences of an Ill-Advised .Suck Website
If you’re reading this, licking your revenge chops, and thinking: “Yes! I am so getting a .suck site to berate [insert name of enemy or business you hate],” you may want to slow your .suck roll.
Because you could find yourself on the losing side of a lawsuit.
What you can be charged with if you go too far with your .suck site about a person or business:
- Defamation: It’s not illegal to say something negative about another person or business, but it is illegal to make a malicious, unprivileged, false statement of fact about another person or businesses.
- False Light: In some jurisdictions, it’s illegal to paint an inaccurate picture of an individual that damages their reputation.
- Trade Libel: Spreading untruths about a service or business is considered product disparagement, and it’s against the law.
- Online Harassment: Threatening, stalking or otherwise mercilessly harassing a person is squarely illegal in every state.
- Cyberbullying: Some jurisdictions have cyberbullying laws on the books that can be used for various types of online harassment.
- Revenge Porn: Every week, another state is ratifying a revenge porn law. For an updated list, head here.
Get In Touch With An Internet Lawyer
Kelly / Warner Law is an Internet law firm. We work with both individuals and businesses that are dealing with online legal issues. To learn more about the firm, click here. To get in touch, click here. To set up a consultation, click here.
Thanks to our nationwide network of attorneys, Kelly / Warner handle cases in all 50 U.S. states. We also work with businesses based in Europe, Canada, Asia and Australia. Contact us.
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A recent employment defamation ruling involving a finance broker serves as a beacon of hope for anybody looking to sue their boss or company for libel or slander. Keep reading to learn more about the case. To speak with a lawyer, click here.
Adviser v. Finance Firm Defamation Lawsuit
Rene Espinoza worked for Merrill Lynch as an adviser. For whatever reasons, it wasn’t a good fit, and he eventually left the company. Unfortunately, his departure didn’t go smoothly. The finance corporation accused Espinoza of breaching a promissory note – and related expenses – worth approximately $200,000. Moreover, his outgoing paperwork indicated that he was fired “for cause.”
Ultimately, the case landed in arbitration with the Financial Industry Regulatory Authority (FINRA). After a 5-day hearing, FINRA officials concluded that Espinoza didn’t act unlawfully. Specifically, the panel ruled that “the evidence established that Merrill Lynch’s written policy was not violated.” Additionally, FINRA authorities concluded that there was “no evidence that Rene Espinoza acted dishonestly” and, therefore, ordered the expunction of his unflattering exit forms.
What You Need To Prove To Win A Professional Defamation Lawsuit Against Your Employer
To win an employment defamation lawsuit against a business, plaintiffs must prove that:
- The employer either published or spoke an unprivileged false statement of fact about the employee;
- The false statement of fact caused the employee material or reputational harm;
- The employer acted either negligently or in their own material interest;
What is statement in question is true, but unflattering? You still may have a case. Firstly, we don’t live in Utopia. As such, it is possible to win a libel lawsuit if there isn’t sufficient proof of the accusation. Moreover, depending on your jurisdiction, you may be able to win a case arguing false light, publication or private facts or another reputational tort. It’s best to speak with an attorney well-versed in the niche.
Contact An Employment Defamation Lawyer
Kelly / Warner handles all manners of business and professional defamation lawsuits – including cases involving employees and employers. To learn more about our slander and libel law practice, head here. If you’re ready to speak with an employment defamation lawyer, set up a consultation.
Twitter is taking a stand against “revenge porn.” Perhaps the 2014 “Fappening” drove them to change. Or maybe the social media platform is falling in line with legislators across the country who are eagerly passing laws the punish people who engage in the act.
From Denial to Action
Twitter’s stand against revenge porn comes after a leaked internal correspondence by CEO Dick Costolo made its way to the Internet. In it, Costolo admitted:
The Exact Twitter Revenge Porn Rule Change
So, how, exactly, did Twitter address the revenge porn problem on its platform? The site amended the “private information” and “abusive behavior” sections of its terms of service policy. Now, according to the TOS:
Yeah, But, Is Twitter’s New Anti-Revenge Porn Stance Really Going To Help?
If you’re a skeptic, you may be thinking, “So what. This is all just lip service. Nothing will change.” And you’re not alone. Many people think Twitter’s announcement was simply a transparent PR effort that won’t result in change, because “banning” revenge porn on a social media platform would ultimately result in an everlasting game of whack-a-mole.
Facebook Is Also Making Noise About Indecency Issues
Twitter isn’t the only social media platform publicly addressing the revenge porn issue in recent months. Facebook has also made changes to its use policy to read:
The ‘threats and abuse’ section of Facebook’s terms now also read:
Further Reading & Attorney Contact Information
To find out if your state has a specific revenge porn law, click here.
To set up a consultation with a lawyer that handles Internet law issues, click here.
A lot of defamation lawsuits aren’t personal battles over personal matters, but instead involve two businesses. And in many regards, these business defamation cases are easier to win, because the circumstances are more straight forward than personal slander and libel cases.
Below, we’ll review a recent corporate defamation lawsuit.
Mirach Capital Defamation Lawsuit Summary
Two international corporations – Mirach Capital and Sahara Group – are currently entangled in a business v. business defamation lawsuit. The root of the legal battle is a soured deal. Specifically, after the revocation of a $2 billion loan agreement, Sahara executives accused Mirach executives of cheating and forgery.
Predictably, Sahara insists the accusations are without merit and caused the company “irreparable harm.” Mirach Capital spokespeople, however, aver that they have “factual evidence” to back up the claims.
What Do Businesses Need To Prove To Win a Business v. Business Defamation Lawsuit?
United States defamation law is free speech-friendly. As such, to win a slander or libel lawsuit, plaintiffs must satisfy the four pillars of defamation.
Falsity: For a statement to be legally defamatory in the U.S., it must be an unprivileged, false statement of fact.
Publication: It is the responsibility of plaintiffs to prove that the defendant was the party who published or broadcast – or aided in the publication or broadcast – of a false statement of fact. Additionally, plaintiffs must prove that the defendant was, in fact, referring to them (the plaintiff).
Harm: To win a slander or libel lawsuit, it isn’t enough to prove that the defendant made a false statement of fact. Plaintiffs must also prove that the statement in questions caused them material or reputational harm.
Negligence: If a plaintiff can’t prove that a defamation defendant acted either negligently or with actual malice, then said plaintiff won’t win his or her case.
Consult With A Business Defamation Lawyer
Kelly / Warner Law maintains an active business defamation legal practice, and our attorneys have successfully handled over 800 professional libel situations for clients. Contact us today to learn more about your legal options.
Cybersquatting cases are making a comeback! And this time around, the stakes are higher. Instead of holding domains ransom for a big pay day, today’s cybersquatters are using stolen domains for more nefarious means.
Is Cybersquatting Legal?
To set the record straight: cybersquatting is not legal. Back during the dawn of the Web, a class of enterprising early adopters and out-of-the-box thinkers made a killing by buying up, then selling back, trademarked and common phrase domains.
But corporations quickly called their representatives – and K Street connections – which resulted in the homologation of the Anti-cybersquatting Consumer Protection Act. An extension of the Lanham Act, and passed in 1999, the ACPA essentially extended trademark rights to domain names. To wit, it’s the bill that made nike.com the automatic property of Nike, Inc.
Why is there an uptick in the amount of cybersquatting cases in recent months?
Both the Internet Corporation for Assigned Names and Numbers (ICANN) and the FBI have noted an increase in criminal cybersquatting cases over the past two years.
For starters, over the last decade, the price of domain names has increased. As such, it’s not cost effective, for criminals, to purchase URLs. Couple that with the insatiable desire to deploy malware and other viruses – and you’ve got a perfect storm for malicious cybersquatting.
What are the new generation of cybersquatters doing with the stolen domains?
In the past, most cybersquatters were merely looking to make money. These days, many of them are looking to wreak havoc. Victims have reported acts of:
- Domain reselling;
- Portal manipulation;
- Malware Distribution; and
- PPC Schemes.
Advanced cybersquatters are also hijacking domains and re-routing URLS to china, Russia, and Eastern Europe, where they are then used for nefarious financial transactions and other types of cyber criminality. There have even been reports that overseas “organized crime” organizations are hiring cybersquatters.
Authority Squabbles: Who Has Authority?
This new wave of cybersquatting may last quite some time. Why? Because nobody can agree on who is responsible for combating the problem. Law enforcement officials say that the Internet Company of Assigned Names and Numbers (ICANN) has the international authority to combat this type of cybersquatting, but ICANN disagrees. Basically, officials are playing a game of hot potato when it comes to enforcement.
Speak with a cybersquatting Attorney
Cybersquatting can take a huge toll on a business and cause considerable financial strain for attacked companies.
Kelly / Warner has successfully handled all manners of cybersquatting cases. As an Internet law firm, our attorneys are well versed in domain dispute law. To learn more about the firm, please go here. To set up a consultation, click here. To send a message, head here.
ATTN DENTISTS: If you’re using a patient contract that asserts copyright ownership of online reviews, it’s time to get it updated. Why? Because judges have decided that those types of agreements are no longer enforceable.
Doctor and Dentist Patient Contract That Confer Copyrights of Online Reviews
In the not too distant past, and in an effort to curtail negative online reviews, many dentists used a patient contract with an online copyright clause. Essentially, patients signed away their copyrights to online reviews regarding the dentist’s performance – good or bad.
Because if someone posted a negative review, the dentist could simply submit a DMCA take down request to get the bad evaluation removed from the Web. Some contracts even included a clause asserting a fee for every day the negative review remained online.
Used To Work, But Judges Caught On, And Are Now Putting An End To It
Once patients clued in to the parameters of these “patient copyright contracts,” they rang the caveat emptor alarms. Quickly, and due to lawsuits, judges were able to weigh in on the validity of these contracts.
The Judges’ overwhelming verdicts? These types of patient contracts are not enforceable because, in the United States, you can’t preemptively extinguish someone’s free speech rights.
Patient: 1, Dentist: 0
Recently, a new York court heard a patient v. dentist online review case. Ultimately, the judge ruled that the contract – which claimed copyrights and forbade future negative reviews – was unconstitutional and unenforceable.
In the judge’s exact words:
“[Online copyright control contracts] constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.”
In this case, however, no money will likely exchange hands because three years ago the dentist involved vanished; never to be heard from again.
Speak With A Dentist Defamation Lawyer
Kelly / Warner Law works with both doctors and patients. We’ve helped medical professionals get negative reviews removed from the Internet, and we’ve also assisted patients who’ve been unfairly sued for online defamation over a less-than-glowing missives.
To learn more about our online defamation practice, click here. If you’re ready to speak with one of our experienced lawyers with patient contract drafting experience, set up a consultation. Contact us.
Is An Online Review Poster Going To Jail?
A paid online review rabble-rouser is in deep poo over a Google Maps review. His name is Jason Page, he lives in the United Kingdom, and he made the giant mistake of leaving a fake review on the page of a Colorado-based lawyer, Timothy Bussey.
Well, it appears that Page was caught and is now out $50,000. He may have to spend some time in the clink, too.
Paid Online Review Sparks International Lawsuit
Page labeled Bussey “a scumbag” and accused the attorney of “paying for positive reviews.” Page also alleged that Bussey “loses 80% of his cases.”
Perhaps Page thought he was in the clear since he lived in the UK and Bussey in the United States. After all, who was going to waste time and money going after a kid, who still lived with his parents, over a lousy online review, right?
Page’s defamatory missive caused Bussey serious financial setbacks. People would read the online review and click away to another attorney. So, Bussey subpoenaed Google and procured information that led to the unearthing of Page’s real identity.
Police & Judge Don’t Believe Troll
When law enforcement officials approached Page, he denied culpability. The lawyer basher blamed his status as a sub-Reddit moderator for the mishap, alleging that hackers were exacting revenge for a decision he made in that role.
But the judge wasn’t moved by Page’s pleas. In fact, he called it “extremely improbable.”
Bussey has suspicions that Page may have been paid to leave the bad review, and he is continuing to pursue the case. So, if you’re guilty, watch out – sounds like Bussey is still on the hunt!
Online Trolling Is Illegal; You Could End Up In Jail or Bankrupt
Many people think that online trolling and writing a paid online review is perfectly legal. Still others believe that a VPN will protect them from being uncovered. Neither of these things is true. It is possible to unearth the names of anonymous trolls – even when they use cloaking techniques.
Now, not all trolls will land behind bars. But that doesn’t mean they won’t have civil legal actions brought against them. Even if individuals don’t engage in criminal activity or online stalking, they can still be sued for:
- Trade Libel or Product Disparagement,
- False Light Invasion of Privacy,
- Unfair Competition, or
- Tortious Interference.
Got Questions? Speak With An Online Harassment Attorney
Kelly / Warner Law has considerable experience with international Internet law cases. As a full-service practice, we handle claims in-house. In addition, we act as the U.S. arm for overseas firms that need assistance from U.S-based lawyers for various court order and motion needs.
Kelly / Warner has an excellent track record, and our attorneys are exceptionally knowledgeable about fake and paid online review legalities. Contact us.
Successfully courted by a competitor, a once trusted employee quits. Tim is his name, and on the way out, he leaves with confidential information.
Maybe it’s knowledge of a bespoke formula or innovative accounting process that confers a competitive edge. Or perhaps it’s a confidential list of contacts. Either way, the information with which our fictitious, but ambitious, Tim absconds is not registered with the United States Patent and Trademark Office, and is highly unlikely to qualify for copyright or patent protection, rendering a potential intellectual property claim moot.
In this hypothetical – but all too common – situation, what are the legal options?
If, during his tenure, Tim signed the proper agreements, you may be able to move forward with a successful breach of confidentiality, breach of loyalty, or a breach of non-compete duty claim(s). But even if such an agreement did not exist, you may have a solid trade secret misappropriation claim, if you can establish all of the requisite elements of a trade secret.
101 Definition: What Are Trade Secrets?
First things first: what “things” can be a trade secret?
A whole lot: customer lists, devices, formulas, processes, algorithms, instruments, patterns, business procedures, designs, software code, financials, practices, and informational compilations have all been successfully argued as trade secrets. Expense reporting methods and the data contained within such reports can even be deemed a trade secret – so long as the “thing” meet the trade secret test.
No Single Federal Trade Secret Statute, But Substantial Multi-Jurisdictional Consistency
Currently, there isn’t a single federal trade secret statute, but most states adhere to the Uniform Trade Secrets Act. New York and Massachusetts are the holdouts, but have either common law principles or non-uniform acts to protect corporate secrets and offer comparable remedies for misappropriation. Luckily, are federal statutes that do provide remedies for misappropriation, infringement, or unauthorized access of matters that are covered by trade secret laws (Economic Espionage Act, Computer Fraud and Abuse Act, federal conspiracy statutes, etc.).
Legal Trade Secret Test: What Judges Consider When Determining Whether or Not Something Is A Trade Secret
What makes a trade secret a trade secret? Though exact parameters vary from jurisdiction to jurisdiction, judges typically consider three legal “tests” when reviewing a case.
- “Generally Common Knowledge”: In order for judges to declare something a trade secret, it can’t be generally known to the public.
- “Competitive advantage”: This a cornerstone of trade secret law. A thing cannot be deemed an actionable trade secret if it does not confer an independent economic value, material benefit or advantage to a company.
- “Confidentiality”: To win a trade secret misappropriation lawsuit, the plaintiff must prove that reasonable measures were taken to keep the trade secret, well, secret. You won’t win a claim by attempting to retrofit confidentiality. The test is not absolute secrecy, but rather, reasonable protections under the circumstances to prevent unauthorized disclosure.
Whether all elements are met is a very fact intensive inquiry, which can become rather complicated to prove.
Reverse Engineering & Trade Secret Law: The Ultimate Legal Nuance
Depending on the situation, reverse engineering may be an acceptable business practice; however, stealing is not. Cases become complicated, though, when employees who never signed a proper confidentiality agreement are hired away by competitors. In such instances, if you can’t produce a signed non-compete or another type of confidentiality agreement regarding the secret information, then you may be leaving yourself open to a non-actionable trade secret leak. In such cases, a misappropriation claim would require showing that the trade secret was still the subject of reasonable protections under the circumstances to prevent unauthorized disclosure, and that the former employee broke protocol, stole, or exceeding his/her authority in acquiring the trade secret.
Of course trade secrets are, by virtue of their definition, not disclosed to the public (or anyone that does not have a bonafide need to know, for that matter); thus, they cannot be verifiably be reverse engineering if they are truly secret. This is contrary to patents, which are made public, but cannot be reverse engineering without legal consequences. Consequentially, for trade secrets, no one can ever be certain that they have successfully “cracked” (i.e., reversed engineered) another’s trade secret, because absent misappropriation, there is nothing to cross-reference the cracked version to. The downside risk, however, is obvious: if someone does crack it, you may have no recourse against a trade secret that is successfully reverse engineered.
How Can A Company Protect Its Trade Secrets?
For a court to side with a trade secret misappropriation plaintiff, said plaintiff must prove their “thing”: (1) has independent economic value; (2) is not capable of being readily ascertainable; (3) and is subject to reasonable measures to guard and maintain privacy. This is more easily accomplished by presenting employees and contractors with strategically written agreements and policies that create privacy measures and consequences for breach. Internal policies should reflect restricting access to economically valuable information, logging visitors and access, password protecting files, compartmentalizing key research and development such that no one person or department know all of the “secret sauce”, among other key strategies.
One of the main reasons lawsuits are dismissed is failure to file on time. For civil suits, the trade secret statute of limitations is usually between 1 and 3 years. If you miss the cut off by one second, that’s that. A court isn’t going to take pity on you – the law is the law. Additionally, single ephemeral company events/items generally don’t become trade secrets without continuous use. Information that becomes public without fault or misappropriation, which you then try to claim as a trade secret, will also preclude trade secret protection. As such, there is no “fly-by-night” trade secret argument; protection must be timely and well planned.
What Legal Actions Can Be Taken If A Trade Secret Is Stolen?
Saul Goodman may have some alternative options in the face of theft, but the only legal way to address trade secret misappropriation is through the court system.
In most situations, the first thing to do in the wake of a misappropriated trade secrets is to file a lawsuit and seek an injunction to preclude any or further exploitation of the misappropriated trade secret. The law suit should be filed “under seal”. Why? To ensure your trade secret isn’t inadvertently leaked via public court documents.
Since the United States lacks a uniform federal trade secret statute, all claims are generally brought pursuant to state law, unless of course, a related federal claim is brought. Even if the claim is brought pursuant to substantive state law, the matter could be litigated in federal court. As such, your trade secret lawyer should have multi-jurisdictional experience.
If properly developed, trade secret regulations can provide the ultimate competitive shield over other types of intellectual property protections.
Contact A Trade Secret Lawyer
Do you have a trade secrets legal issue? Get in touch with Kelly / Warner to learn more about your legal options.
Louisiana’s Online Impersonation Law
A new Internet law in Louisiana makes it illegal to intentionally, maliciously or fraudulently impersonate another person or business online. The rule goes into effect on August 1, 2015 and violators will earn a criminal record.
Parameters of Louisiana’s New Internet Impersonation Law
According to Louisiana’s new online impersonation law, for a deed to be legally actionable under the statute, the perpetrator must show:
- Intent to harm,
- Intent to intimidate,
- Internet to threaten, or
- Intent to defraud.
People who are convicted under the statute will be charged with a misdemeanor. Officials hope it will curb cyberbullying, online harassment and Internet defamation.
Florida’s Proposed New Internet Law: Eradicating Anonymous Art Sites
Florida lawmakers are eager to pass a new Internet law, which addresses online piracy, called the “True Origin of Digital Goods Act.” But like many proposed laws aimed at protecting intellectual property on the Internet, there are questions about its constitutionality.
If You Run A Website or App That Offers Commercial Recordings, Be Prepared To Expose Yourself
Essentially, the proposed new Florida Internet law would allow for the shuttering of anonymously run websites that offer “commercial recordings” – even if the website owner is the creator of all the available works.
Yes, you read that correctly. Even if you’re the creator of the works, you can’t run it anonymously.
Is Florida’s New Internet Law Constitutional?
The Electronic Frontier Foundation isn’t thrilled with Florida’s new Internet law. The non-profit argues that the proposed statute violates the First Amendment by preemptively disallowing anonymous free speech.
Should Florida-Based Websites Worry About Raids
Moreover, many people fear that the new Internet law paves the way for egregious government raids (a.k.a., MPAA / RIAA witch hunts?) on law-abiding businesses. Why? Because it happened in Georgia when a similar law passed in that state.
Consult With An Internet Lawyer
Kelly / Warner is a legal practice that helps businesses and individuals with all types of Internet law issues. As one of the first firms to focus on cyberlaw, Kelly / Warner attorneys are well versed in online defamation, harassment, intellectual property and piracy law. If you are dealing with any new Internet law disputes, get in touch to learn more about your legal options.