Monthly Archives: June 2015

10 Things Marketers Must Know About Fake Reviews

fake reviews lawyer and legalitiesThe bottom line on fake reviews: They’re more trouble than they’re worth.

More and more, marketers are testing fate on this point; more and more, people who do are getting caught. So, to help you stay on the right side of regulations, pay heed to these ten tips – from an Internet lawyer – about online review legalities.

#1: Are Fake Reviews Legal or Not?

Fake reviews violate a whole slew of advertising and marketing laws. In the words of the FTC: “[Endorsements] must reflect the honest opinions, findings, beliefs or experiences of the reviewer.” In essence, a fake review would not reflect the “honest opinion, findings, beliefs or experiences of the reviewer” since the premise of a fake review is that the reviewer never used the product or service. If you use fake reviews in a commercial capacity, the FTC could charge you with violating Section 5 of the FTC Act. Also, competitors may come after you for unfair competitive activities and/or violations of the Lanham Act. Both Section 5 of the FTC Act and the Lanham Act have provisions for punishing people who engage in false and misleading advertising. In the words of the FTC: “If an endorser is acting on behalf of an advertiser, what she or he is saying is usually going to be commercial speech – and commercial speech violates the FTC Act if it’s deceptive. The FTC conducts investigations and brings cases involving endorsements under Section 5 of the FTC Act, which generally prohibits deceptive advertising.”

#2: Try to Get an Injunction

Fake and phony reviews can ruin a company’s reputation. The longer they remain online, the more damage they can do. If you’re the target of a malicious fake review attack, hire an attorney ASAP — who can determine the best course of action in getting the fake reviews removed.

#3: You Are Your Affiliates’ Keeper

The Federal Trade Commission has made it clear: marketers and businesses are responsible for the actions of affiliates who promote their products. If affiliates flout marketing regulations, businesses can be held liable. Click here to learn what steps you must take to comply with government monitoring standards.

#4: Tell the Truth

Advertising claims must be truthful. Yes, you’re allowed to engage in a bit of “puffery”, but straight up lying deceives consumers; hence, it’s a violation of marketing and advertising laws. If you get caught passing lies via marketing materials, the FTC may fine your company – or worse.

#5: Don’t Mislead People

Not only can’t you lie in promotional material, but you also can’t intentionally mislead people. The FTC’s prime directive is to protect consumers against fraud and deceptive marketing. Blatant misdirection falls under that umbrella.

#6: Disclose Generously

It’s not OK to bury a disclosure behind a single footer link, which takes you to a 20,000-word legalese wall of 8px text. Disclosures must be conspicuous, and they should be written in a way that the average person can understand. Our online review compliance attorneys can help you craft language for disclosures. Businesses are no longer protected by purposefully confusing – but legal – user agreements and disclosures. In the FTC’s words: “…but each new endorsement made without a disclosure could be deceptive because readers might not see the original blog post where you said you got the product free from the manufacturer.” And “a disclosure on a profile page isn’t sufficient because many people in your audience probably won’t see it. Also, depending upon what it says, the badge may not adequately inform consumers of your connection to the trade association. If it’s simply a logo or hashtag for the event, it won’t tell consumers of your relationship to the association.”

#7: Drop in Search Engine Rankings could be a Legitimate Harm

In order to win a defamation lawsuit against a fake-review-posting competitor, plaintiffs must demonstrate harm. In some cases, a purposeful drop in search engine rank caused by a competitor could qualify as sufficient harm for the purposes of a lawsuit, because it correlates to client loss. This area of the law is still untested and could require an expert to prove.

#8: Leave Celebrities and Newscasters Alone

It’s not OK to deceptively use celebrities’ or news anchors’ pictures without permission. In most cases, it’s OK to use royalty free pics of famous people for editorial purposes, but you cannot use them to make it look like they endorse a product, business or brand.

#9: Family and Employees Must Out Themselves

The Federal Trade Commission insists that all material connections are disclosed in promotional and marketing materials – and the agency considers familial and professional relationships to be material. So, if your mom wants to write a glowing review of your business, she needs to reveal that she’s your mother in said review. In the words of the FTC: “Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers.”

#10: Beware the Giant Fines

If you do tempt fate and use fake reviews, prepare to pay a large, large fine if the FTC comes a-knocking. Be warned: the FTC does not mess around. They’ve even been known to re-possess houses, mink coats, watches, cars and other assets of not only the guilty, but from family members of the guilty party, too.

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Texas Defamation Roundup: A Topix Scandal & A Sports Showdown

Texas defamation news and lawyer contact information
Texas Defamation News Update

Maybe it’s old fashioned pride or perhaps Texans enjoy a spot of gossip. Regardless, the Lone Star State is birthplace to many a defamation lawsuit.

In this blog post, we’ll review a pair of reputation-related cases grabbing headlines in Texas. To read, keep scrolling. If you’re ready to speak with a Texas defamation attorney about getting your name removed from a website or litigating against an adversary for posting defamatory statements online, contact Kelly / Warner Law.

Businessman Sues for Online Defamation over Weather Reporter Scandal

Some years back, in Lubbock Texas, a local TV weather woman, Nikki Dee Ray, became entangled in a bit of a selfie scandal. Immodest pics, of what allegedly appeared to be her, were splashed across the Internet. An anonymous leaker had posted the goods on Topix.com, and another unknown person linked local businessman, Chet Pharies, to the scandal.

Presumably unimpressed, Pharies sued the anonymous poster (“John Doe”) for online defamation because he felt “his [Pharies’] moral character, in both his private, married life and as a business owner” were being disparaged.

Since the leaker’s real name is unknown, Pharies first had to get a court order compelling “John Doe’s” ISP to hand over identifying information. And Pharies succeeded. The presiding judge told Suddenlink Communications to give Pharies data that’ll help unearth the user who linked him to the scandal.

As for Nikki Dee Ray? Well, she left Lubbock a few months back. No word, yet, if she’ll be involved in the suit.

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Texas Football Coach Denied Defamation Trial

For several years, former Texas Tech football coach Mike Leach and former ESPN broadcaster Craig James have been entangled in a feud. Some might call it a typical parent-coach dispute.

The sportscaster’s son, Adam James, played at Texas Tech under Leach and suffered a concussion during his tenure on the team. According to media reports, Leach allegedly punished Adams by making him stand in a dark room during practices that Adam couldn’t participate in because of a doctor’s concussion assessment.

At Leach’s insistence, Pincock shared that statement with James. Then he led him off the field to a shed that housed blocking dummies, watercoolers, an ice machine and an ATV. Injured players would sometimes go there to ride a stationary bike. Virtually spotless, the brand-new structure had a tacky, rubberlike floor and an overhead, garage-style pull-down door, as well as a man door on the side. There were overhead lights but no windows. Aided by freshman student-trainer Jordan Williams, Pincock removed anything that James could sit on and made sure the lights were off. He told James that Leach wanted him to remain standing in the dark for the duration of practice. From: http://www.si.com/college-football/2013/09/09/system-leach-excerpt

The situation mushroomed, and to shorten a long story, Texas Tech brass asked Leach to leave the football team. Since Leach’s termination was a high-profile sports story, ESPN reported on the event.

In opposition to his termination, and related subsequent reporting, Leach filed lawsuits against various parties – including Craig James and ESPN. For what? According to Leach’s lawsuit, Craig James allegedly provided inaccurate information, regarding the incident with his son, to the media outlet.

But so far, Texas judicial officials seem to think little of Leach’s slander case. The trial court and 7th Texas Court of Appeals both dismissed the coach’s action. Furthering, the Texas Supreme Court also denied the case, which pretty much seals its fate. Sure, Team Leach could file another appeal, but it is unlikely.

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Kelly / Warner supports Texans and Texas-based businesses dealing with defamation and trade libel issues. We help individuals get defamatory information removed from websites, and also work with companies being targeted by overly aggressive competitors.

Contact us to start asking your online reputation legal questions.

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Affiliate Marketing Laws: Brands Are Responsible For Affiliates

affiliate marketing laws: brand liability
Affiliate Marketing Laws: What Are The FTC Rules Regarding Affiliate Liability?

Brands Are Responsible For Affiliate Actions

The Federal Trade Commission has made its position crystal clear: Brands and marketers are responsible for their affiliates’ actions. Full stop. No excuses.

The FTC’s stance raises a fundamental online marketing legal question: How are businesses supposed to closely monitor every single one of their affiliates — especially brands with thousands of them?

FTC Recommendations On How To Monitor Affiliate Marketing Network

Luckily, commissioners aren’t regulatory robots lacking all common sense. They do understand that businesses can’t babysit affiliates on a daily basis. In the FTC’s words:

It’s unrealistic to expect you to be aware of every single statement made by a member of your network. But it’s up to you to make a reasonable effort to know what participants in your network are saying.

To further guide brands, the nation’s consumer watchdog agency published an outline of appropriate affiliate monitoring procedures. Here it is:

  1. Given an advertiser’s responsibility for substantiating objective product claims, explain to members of your network what they can (and can’t) say about the products – for example, a list of the health claims they can make for your products;
  2. Instruct members of the network on their responsibilities for disclosing their connections to you;
  3. Periodically search for what your people are saying; and
  4. Follow up if you find questionable practices.

Now, in plain English.

When you hire third-party affiliates, promoters and endorsers:

  • Make sure affiliates are aware of the latest FTC regulations before bringing them aboard.
  • Make affiliates sign contracts agreeing to adhere to FTC and brand guidelines. (For the best protection, get an affiliate lawyer to draft a contract specific to your business.)
  • Regularly audit the websites and digital promotional efforts of your affiliates. Be sure to make a report of your findings in the event you must prove to the FTC that you monitored affiliate activity.
  • If you see content that doesn’t adhere to FTC marketing regulations, or in some way flouts the Lanham Act or Section 5 of the FTC Act, contact the affiliate about the issue. Document everything, including their responses. One day, you may need these records to prove you had an effective and ongoing affiliate monitoring system in place.

Affiliate Marketing Laws: A Starter Guide

Word to the wise: You don’t want the FTC sniffing around your operation. The investigation process can be a headache – not to mention the negative effect it could have on cash flow and sales.

Below are some links to information, tips and legal guidance concerning the FTC’s online marketing rules and regulations.

What Would You Do If The FTC Called?

Do you have a plan in place if the Federal Trade Commission comes knocking? Are you positive you’re following all the appropriate online marketing guidelines? Even the international ones? Do you have the budget to satisfy a multimillion-dollar FTC fine?

An online marketing audit will probably cost a few of hundred dollars. Get one before you end up on the FTC’s radar.

Internet Law Case: Android App Developer Lawsuit Example

Below is a summary of an app developer v. app developer lawsuit. Anyone interested in tech lawsuits will find it informative. If you’ve landed here in search of an app developer lawyer, head here.

App developer lawsuit and lawyer

APUS Group is an app development startup. Cheetah Mobile Inc. is an established app development firm. The two companies are going head-to-head in a legal battle. Why? Because they’re pushing similar products, and aggressive marketing may have morphed into illegal, unfair competition.

Why is one App Company Suing Another App Company?

Cheetah Mobile Inc. (“Cheetah”) and APUS Group (“APUS”) have competing apps, Clean Master and Launcher respectively. Both are “optimizer” apps that improve device functionality.

Cheetah launched this app developer lawsuit against APUS because the latter believes the former committed intellectual property infringement and an egregious act of defamation by telling users that Clean Master is “stealing your data.”

Press Release Informs Defendants of App Developer Lawsuit

Cheetah announced the suit with a splashy press release. Apparently, APUS may have learned of the lawsuit along with the rest of us, via the press release.

International App Developer Using U.S. Courts For Unfair Competition Grievances; Is It A Smart Move?

Somewhat curiously, Cheetah filed this app developer lawsuit in a California court. Why California? Speculation is that:

  • Higher U.S. litigation costs may encourage APUS to settle out of court;
  • If Cheetah wins in a U.S. court, the possible award damages, for the cited claims, are higher in the U.S. than China;

Justifying a Jurisdiction

How did Cheetah justify filing in a U.S. court? Since the Google Play store distributes APUS’ Launcher in California, California residents are affected by the alleged violations.

Sure, it’s a valid argument, technically, but tenuous. It wouldn’t be surprising if the plaintiff first moves for a change in venue.

App Developer Claims Unfair Competition Kitchen Sink

Cheetah’s list of claims was longer than a theme park line. The tech firm sued its competitor for:

  • Defamation,
  • Trade libel,
  • Copyright infringement,
  • Federal and State trademark dilution,
  • False advertising,
  • Unfair competition,
  • Intentional interference with prospective economic advantage, and
  • Intentional interference with contracts.

Time will tell if this app developer v. app developer lawsuit proves to be a brilliant stroke of strategy or an misstep.

Kelly / Warner is a tech law firm that works with developers. Contact us with any questions related to app development law.

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Cybersquatting Cases and Lawyer Contact

cybersquatting cases
Cybersquatting Cases Round Up

You can’t hold famous domains hostage for cash. That get-rich-quick scheme left the station in 1999 when Congress “yea’d” the Anticybersquatting Consumer Protection Act into law.

Below are two summaries of recent cybersquatting cases. If you’re ready to speak with a domain dispute lawyer, go here.

Wiz Khalifa Won A Cybersquatting Lawsuit

Domain marketer Anthony Lynch recently found himself in a legal tangle with Cameron Thomaz – a.k.a., Wiz Khalifa. Lynch scooped up eight domain names featuring the rapper’s trademarks.

Since Khalifa’s claim was straightforward, only one UDRP panelist sat for the case, who ruled in favor of the musician. Why? Because Khalifa used and registered the trademarks before Lynch purchased the domain names. The panelist also pontificated that Lynch probably bought the URLS with the “express intention to target” Wiz Khalifa.

The final verdict: all eight domains need to be transferred back to Wiz Khalifa’s company, at no cost to him.

Case: Thomaz et al v. Lynch, No. D2015-0166

Amazon.com and Kellogg: High Profile Cybersquatting Cases

Amazon.com and Kellogg Inc. can both add cybersquatting lawsuit victor to their virtual trophy cases.

After a protracted dispute, the Internet’s largest online retailer won back amazonprom.com, amazonpromdresses.com and amazondresses.org. The panelists ultimately ruled in favor of Amazon because the defendant lacked a legitimate interest in domains that included Amazon’s trademark.

All you cereal enthusiasts out there, you’ll be happy to learn that Kellogg’s won back kelloggs.buzz – for the same reasons Amazon won.

“Bad Faith Intent to Profit”

Both parties won their cybersquatting claims because the defendant demonstrated a “bad faith intent to profit”. Plus, the names under review were “confusingly similar” to trademarked brands.

Cybersquatting is still a big legal issue. Though federal officials passed the Anticybersquatting Consumer Protection Act, people still run typosquatting and cybersquatting schemes. But there are ways for trademark holders to regain control of their domains, without shelling out much money.

Speak To A Lawyer Who Has Dealt With Cybersquatting Cases

Kelly / Warner helps trademark holders regain control of domains. An Internet law firm with a cybersquatting law division, we know all the ins-and-outs to reclaim your domain promptly.

Contact us to take back your URL.

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Defamation Law: Is It Defamatory To Say Someone Was Fired?

is it defamatory to say people were fired if they quit
Is it defamatory to say people were fired if they quit? A new lawsuit probes the question.

Is it defamatory to say people were fired if they quit? Former PayPal employee Rakesh Agrawal is testing the legal waters to find out.

Resignations + New Phones + New Orleans / Twitter = Online Defamation Lawsuit

Our story starts the day that Rakesh Agrawal, then director of strategy for PayPal Inc., decided to pull a Jerry McGuire and quit his job in spectacular fashion. Agrawal’s public resignation play? He posted a copy of his “I’m outta here!” letter online.

A day later, Agrawal found himself at the New Orleans Jazz Fest – with a brand new (Chekhov’s) phone. Presumably, jocularity ensued. And by the wee hours of the morning, Agrawal had tweeted a 140-character rant about PayPal’s then global brand and communications officer. The highlights: “piece of $#!+” and “useless middle manager”.

By sun-up, Agrawal had deleted his tirade.

But it turns out that the Watcher in PayPal’s Woods spied Agrawal’s rant before he removed it. And with a dash of middle school ‘tude, the official PayPal Twitter account coughed up this finger wag:

“Rakesh Agrawal is no longer with the company. Treat everyone with respect. No excuses. PayPal has zero tolerance.”

Is It Defamatory To Say People Were Fired If They Quit? I’m Going To File A Lawsuit To Find Out.

When Agrawal heard about PayPal’s “zero tolerance” message, he took things next level and filed a defamation lawsuit against his former employer. Agrawal’s arguments are simple (perhaps to a fault – and of course, we’re paraphrasing here):

  • New Phone Defense: Those were supposed to be private messages, not public tweets! Look, I was using a new phone, of course I messed up!
  • I Blinked First Argument: PayPal never fired me. I quit! And posted a resignation letter a full day before PayPal’s tweet about me!
  • Lost Opportunities: PayPal is making it seem like they fired me for ‘misconduct and disrespect’; it’s misleading and resulted in lost opportunities.

Can An Ex-Employee Win A Twitter Defamation Case Against A Former Employer?

So, does Agrawal have a viable Twitter defamation case? While it’s never wise to augur a judge’s ruling – because the legal devil is always in the brief details – it’s fair to say that Agrawal will have to do some strenuous uphill climbing to win this case. Why?

Carefully Worded Statements v. Reasonable Understanding

For starters, PayPal’s tweet didn’t, specifically tweet: “PayPal fired X because of Y.” Instead, the company went with a carefully worded passage informing readers that Agrawal “was no longer with the company” – which could either mean he was fired or quit. And in defamation cases, judges are required to assume the most innocent interpretation.

Agrawal argues, via his lawsuit, that PayPal’s tweet is:

“reasonably understood by those who read it to mean that plaintiff had been fired by PayPal for misconduct and disrespect.”

But, when weighing defamation case law against the known facts of this case, the argument probably won’t hold up because it’s too subjective an assertion.

Moreover, to win, Agrawal, at the very least, will have to prove:

  • That the PayPal tweet contained a false statement of fact about him. Sure, there is such a thing as “defamation by implication,” but this case doesn’t have the meat needed to make a convincing defamation by implication claim. Especially since U.S. case law demands that the most innocent interpretation be assumed.
  • That PayPal acted negligently in sending out the tweet.
  • That PayPal’s tweet led to material or reputational harm for Agrawal. Lawyers for the plaintiff could try to argue defamation per se, meaning argue that the PayPal tweet was inherently defamatory because it disparaged Agrawal’s professionalism, but it’d be a coin toss as to whether or not a judge – and eventually appeal’s panel – would be convinced by the argument.

But hey, you never know. Sometime the courts surprise.

Reputations are priceless. And in today’s viral market, success involves maintaining a good name. Kelly / Warner is a leader in the internet defamation litigation and reputation management industry. We’ve helped over 800 brands with digital defamation clean-up in the wake of a disparaging campaign or incident.

Contact us to find out how we can revive your good reputation.

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“Is it defamatory to say people were fired if they quit?” is just one of the common slander and libel questions we often field. Check out our blog for more defamation case examples and lawyer advice.

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Are Fake Review Websites Legal? Can Affiliates Use Them? (Plus 5 Marketing Rules)

fake review websites are illegal
Are you responsible for the actions of affiliates that market your products or business?

“I can get away with using fake review websites; everyone else does it, so can I!”

If that is something you’ve said before, re-think your promotional pride, because using phony review sites — or allowing your affiliates to use them — could land you on Skid Row. (OK, that’s overly dramatic. But using fake review websites can get you into expensive trouble with the FTC.)

FTC Busts Weight-Loss Company for Not Following Marketing Guidelines

The Federal Trade Commission busted a pair of diet pill pushers – Sale Slash and Purists Choice – for not adhering to promotional guidelines laid out in the Lanham Act and Dot Com Disclosures.

Merchants of “organic” weight-loss supplements, Sale Slash and Purists Choice, sold things like Pure Garcinia Cambogia, Premium Green Coffee, Premium White Kidney Bean Extract, Pure Forskolin Extract, and Pure Caralluma Fimbriata Extract.

If You Know Your Affiliates Are Using Fake Review Websites, You’re Responsible for Their Actions

The FTC believes that both companies knowingly worked with:

  • Illegal SPAM-sending,
  • Fake news site-having,
  • Black hat-wearing,
  • Phony celebrity endorsing,
  • Bogus reviewing

affiliate marketers!

Here’s the #1 rule you must remember about using affiliate marketers: If you hire affiliates, and you make them sign a contract – a contract that acknowledges you can fire them at any time – then you’re also responsible for how said affiliates market and promote your products. Full stop; bottom line; do not pass go. One more time, so it sinks in: Businesses are responsible for their affiliate marketers’ promotional actions.

Once The FTC Uncovers Credible Evidence of Marketing Deception, the Suits Take Over

The FTC investigation of Sale Slash and Purists Choice is fully underway; evidence against them has been compiled, and a judge green lit a motion that will effectively halt distribution and marketing of the products under dispute.

Moving forward, both companies’ assets will probably be frozen and a temporary receiver appointed if violations are definitively uncovered because funds need to be ready for consumer refunds.

The 5 Basic Rules for Online Marketing

  1. If an ad, article, graphic, post, pin, tweet or gram is an advertisement or sponsorship, label it as such.
  2. If you pay, or otherwise materially compensate, tweeters to promote a product or service, their posts must use an #ad or #sponsored hashtag in the promotional tweet or social media post.
  3. Don’t lie or make false scientific claims. Doing so is a one-way ticket to a giant FTC fine that could put you out of business.
  4. Disclose everything. If you’re signing people up for anything, let them know all of the stipulations beforehand so they can make an informed decision. If you’re billing people monthly, let them know. If you paid for your testimonials and reviews, put it out there. The FTC is serious about disclosures. As such, it’s a good idea to cozy up with the Dot Com Disclosures to make sure you’re operating on the right side of the marketing law. Questions? Get advice from an online marketing attorney.
  5. Fake news and review sites – that don’t feature clear and conspicuous disclosures – are against the law. And the FTC is on the lookout for marketers still using fake news sites. If you don’t want to end up in a tangle with the quasi-feds, don’t use them.

Online marketing lawyers can save businesses lots of time, money – and FTC headaches. Get in touch with Kelly / Warner. Our attorneys can answer your online marketing questions. We’ll resolve your issues quickly — and for a fraction of the price.

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Is A Nevada Defamation Law Change On The Way?

Nevada defamation law
Is a Nevada defamation law change coming? Will it be a positive move for small businesses in the state?

If Nevada’s defamation bill SB444 passes, it’ll be easier for businesses to protect their online reputations.

True Issue at the Root of Nevada’s Defamation Debate: How Easy Should It Be for Businesses to Sue Online Reviewers?

Should businesses be able to sue customers for leaving bad reviews? What about customers who temporarily part ways with sanity, make  friends with a bottle of pinot,  and decide to spend the night anonymously misdirecting personal frustrations at the Internet in the form of SCREAM TYPED tall tales and fibs about businesses or a nemesis?

In Nevada, lawmakers are tackling the question.

Within the context of the state’s Strategic Lawsuit Against Public Participation (SLAPP) statute, legislators are, essentially, debating where the free speech line ends and the defamation line begins.

Is Nevada’s SB444 Pro Small Business?

Nevada State Bill 444 could be seen as a “pro-SMB” bill, as its goal is to “balance” the law books, making it possible for genuinely wronged businesses to sue online detractors who lie about services or products.

If passed, the law would weaken Nevada’s current SLAPP statute by requiring less pretrial demonstrations of case fitness. As a result, more business plaintiffs could move forward with slander and libel lawsuits against online defamers instead of having the claims quashed early in the litigation process.

Nevada Defamation Bill Already Passed, But Now There Are Some SLAPP Problems

A couple of months ago, Nevada legislators actually passed SB444, unanimously. But since gavel, opposition groups have stepped in – and now Nevadan politicians are arguing about defamation law.

What would happen is SB444 Passes?

If the Nevada defamation bill is green lit, Nevada’s anti-SLAPP law would lose some litigation weight, if you will. Opponents argue that weakening it would be a palpable blow to constitutional rights. SB444 Proponents, however, think SB444 brings “much needed balance” to the state’s slander and libel standards, which will ultimately help small business owners effectively deal with malicious defamers.

Click here to learn more about Nevada’s slander and libel laws. If you need to speak with a defamation lawyer about a case involving a Nevada business or person, get in touch.

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Texas Defamation Law Change: Whistle-blowing Parameters

Texas defamation law change whistle blowing
Texas’ libel law has been updated.

Texas journalists and bloggers no longer have to cower in the face of whistle-blowing reports, because legislators have adopted an amendment to the Texas defamation law. From now on, journalists in the Lone Star State can report on corporate whistle-blowing speculations and scandals — without fear of a being slapped with a questionable lawsuit.

Texan Reporters Accused of Defamation on the Regular by Deep Pocketed Parties

All state defamation laws must stick to the framework of the federal standard, but state slander and libel laws tend to feature a twist – a legal accessory that sparkles with regional flair. For example, in stoic, British-emulating Massachusetts, in some instances, a plaintiff can win a defamation lawsuit even if the defendant is telling the truth. And in no-tattle Texas, state defamation laws meant journalists often held back on stories involving whistle blowers, for fear of being hit with a costly – job threatening – defamation lawsuit.

Defamation Bill Approved By Texas Senate: Affects Whistle-blowing Defamation Cases

In 2014, the Supreme Court of Texas made a decision that prompted a law change regarding certain aspects of whistle-blowing defamation cases. Due to the way the law was written, journalists were being found liable for libel, even though their stories were based on solid reporting work; they were being punished, despite engaging in proper due diligence, when their sources got information wrong.

In a way, the previous Texas defamation law was the State’s free speech pink elephant. One of the bill’s authors, Sen. Joan Huffman, articulated the need for the change when she explained: “accuracy in reporting [should be] a defense to libel.”

And from here on out accurate reporting will be an workable defense against defamation in Texas, as the governor signed the bill into law at the end of May.

Speak With A Texas Defamation Lawyer

Though based in Arizona, Kelly / Warner lawyers are licensed to practice in Texas. We have helped hundreds of clients with all manners of online defamation and reputation issues. Contact us to begin the conversation.

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Can You Be Prosecuted For Things You Say Online?

can you be prosecuted for things you say online?
Can you be prosecuted for things you say online?

Do you treat Google as a confessional or a digital counter spy? If someone stumbled upon your private searches, would they think:

  1. “Dear Authorities: I have convincing proof that the hybrid of Patrick Bateman and Omen Damien now walks among us. Can you get on that, quickly? K? Thanks. Signed, Everyone Ever.”
  2. “Jabba the Hutt, is that you?”
  3. “Holy boring.”

In our digital world, where is line between “deviant fantasy” and “attempted criminality”? A post-modern meditation on free speech and individual freedom, HBO’s new documentary, Thought Crimes: The Case of the Cannibal Cop, forces each of us to consider our relationship with the swami search engine, Google. The film begs us to debate questions like:

  1. Should online searches be a factor in harassment and other criminal cases?
  2. Can you be prosecuted for things you say online?
  3. Can you be prosecuted for things you say on a “fantasy forum”?
  4. Is there a right answer?

Thought Crimes: The Case of the Cannibal Cop: A Summary

OMGWTF!

HBO (now also known as: high-brow Court TV) debuted another true crime documentary that will leave you disturbed for days. Entitled Thought Crimes: The Case of the Cannibal Cop, the film lures you into the world of Gilberto Valle, a cop-turned-convict whose “fantasies” veered in the yikes-omgwtf direction.

Bottom Line: Gilberto Valle was a New York State police officer who spent off duty time trolling the darkest parts of the Web. Parts where men talked about kidnapping, raping and then eating women. Yup. Valle was an active member of a purported online cannibal community.

When Online Talk Starts Getting Real

Eventually, Valle started chatting with another user and talked turned to taking their fantasies AFK. Around this time, Valle allegedly accessed a police database to gather personal information about a woman he mentioned in his “cannibal chat community.” Obviously, this was a big no no.

Investigation & Arrest

In time, Valle’s wife uncovered his secret. And like any wise woman, she ran to authorities. Law enforcement investigated, unearthed Valle’s online cannibal activity and discovered his questionable access of police records.

In 2013, police arrested Valle. He was found guilty of kidnapping conspiracy and served a year behind bars; then, the guilty verdict was overturned.

Can You Be Prosecuted For Things You Say Online?

Sure, the film is a bit salacious, snarky and sometimes cringe-worthy, but Thought Crimes is more than mindless true crime fodder. It’s a brain teaser that delves into the philosophical and legal quagmire stewed by the 21st century. Should online searches be admissible evidence, ever? What level of criminal intention can a Google search legally convey?

Throughout the documentary, Valle’s mindset is poked and probed – by the filmmakers and us, the audience. The film juxtaposes his conversations about cannibalism with videos of him eating or cooking. We jump to conclusions, only to have those suppositions questioned a frame later. We waiver between two poles: Were Valle’s actions simply, as he insists, an online-only “sick fantasy”? Or did the prosecutors have it right, and use next-level police work to stop a violent criminal before he took his “sick fantasies” to actual streets?

A Minority Report Warning?

In retrospect, perhaps the only message Thought Crimes makes clear it is this:

Be careful what you search for online. Very careful. Because Phillip K. Dick’s prescient Minority Report seems to be playing out right before our very eyes — and “PreCrime” seems to be a real thing.

Kelly / Warner: The Digital Communication Litigation

Kelly / Warner is an internet law firm with a team of attorneys that concentrates on legalities affecting digital communications. To learn more about our firm, please head here. If you’re primarily interested in our online speech litigation practice, please go here.

Got any other questions like, “can you be prosecuted for things you say online?” Give us a ring or send a message.

Explained: The Arizona Data Breach Notification Law

Arizona data breach notification law
Make sure you’re in compliance with the Arizona data breach notification law.

By the end of this post, you’ll understand Arizona’s “data breach notification law” and what you’re legally required to do in the wake of a hack, leak or manual data breach. Ready to speak to a lawyer about your situation? Get in touch.

Arizona businesses – and websites accessible to Arizonians – are legally required to inform users and customers of data breaches. In this blog post, we’ll review § 44-7501 of the Arizona Revised Statutes – a.k.a., the Notification of breach of security system; enforcement; civil penalty; preemption; exceptions; definitions law. For brevity’s sake, we’ll call the regulation 44-7501.

What is “personal information” under the Arizona data breach notification law?

Arizona’s data security law only applies when personal information is compromised, which raises the fundamental question: What constitutes “personal information” under Arizona State law?

Answer: Any person’s first name or first initial and last name, coupled with:

a) A social security number,
b) Driver’s license or official ID information, or
c) Credit or debit card numbers, with password or security code data that could grant access to accounts.

Who has to follow Arizona’s Data Breach Law?

Any person, group or business, operating within the State of Arizona, that owns, maintains or licenses unencrypted user data, must follow 44-7501. Examples include (but are not limited to):

  • Companies headquartered in Arizona;
  • Commercial websites that permit Arizona residents to access or interact with their sites; and
  • Large companies with offices or customers in Arizona.

Uncertain if Arizona’s data breach law applies to you? Consult with an Internet law attorney to find out.

What constitutes a “breach” under Arizona’s ?

Not all leaked or stolen information is a notification-triggering breach. For a data security incident to qualify, personal data (described above) must have been compromised – or fell into unauthorized hands – and the potential exists for user / consumer economic loss. Examples of possible breaches:

  • Hacking incident;
  • Loss of laptop, memory stick, computer or hard drive;
  • Employment misconduct with digital records and accidental emails;

The above examples aren’t the only models of data breaches that require notification, they’re simply an overview of things that have previously been deemed breaches under Arizona law.

What is the general purpose of 44-7501 – Arizona’s Data Breach Notification Law?

Passed in 2006, 44-7501 outlines the required notification process in the event of an unauthorized data breach.

When are you required to launch a data security breach investigation?

Under Arizona’s data breach law, the moment business operators become aware of a potential security issue, they are obligated to launch a “prompt investigation.” If it’s discovered that you looked afoul when the signs pointed to a potential breach, you’ll be fined – heavily.

How long do companies have to notify the affected users / people?

If your investigation concludes that a third party could have gained access to records, you’re required, by law, to alert the affected parties:

“…in the most expedient manner possible and without unreasonable delay.”

What are allowable notification methods according to Arizona’s data breach notification rules?

If you’re responsible for alerting affected consumers about an Arizona data breach, acceptable contact methods include:

  • Phone;
  • Regular Mail;
  • Email, only if the person has indicated email as their preferred contact medium.

If more than 100,000 people are affected by a breach, or if the cost of notification would exceed $50,000, businesses can use so-called “substitute notification methods,” which include:

  1. Email (some restrictions apply; consult with an Internet lawyer about the details of your case.)
  2. Conspicuous notification on company website; or
  3. Notification to major, statewide media outlets.

Law enforcement agencies can delay notification if the incident affects a larger investigation.

What is the penalty for breaking Arizona’s data breach law?

What happens if you don’t comply with Arizona’s data breach law? A huge fine. Violators are responsible for actual damages caused by the ignored breach, plus $10,000 per breach.

Who is allowed to sue for violations of Arizona’s Data Breach Notification Law?

Only the Arizona Attorney General can bring breach notification violation charges against a defendant. Additionally, State law supersedes municipal and county laws addressing the issue. This would not, however, preclude private citizens from bringing causes of action for other claims.

Kelly / Warner is a top-rated legal practice that focuses on Internet law. To learn more about our pioneering firm, head here. To speak with an experienced Internet law attorney, get in touch.

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Clickwrap Agreement Case: Automatic Billing Enrollment

The right clickwrap agreement will protect your assets and business better than a standard contract; it also allows for higher profit potential. I Want One »

clickwrap agreement lawyerCertain clickwrap, browserwrap and sign-in wrap agreements may soon be under legal fire. Anyone who uses — or is considering using — these types of contracts should set aside a minute to read this post. Why? We’ll explain why sign-in wraps may soon be a bad idea. Also, we’ll go over the different types of “user agreement wraps”.

In-Flight Wireless Provider Accused of Using Tricky Clickwrap Agreement, And Overcharging Consumers

Gogo LLC (“Gogo”) provides airplane wireless services. In fact, it dominates the in-flight Internet connection niche. But if a proposed class action lawsuit against Gogo is green lit, one of the possible rulings could be an internet law game-changer regarding sign-in wrap user agreements.

User Contract Includes Payment Fine Print

First, A Little About Gogo

Gogo was one of the first firms to recognize the profit potential of in-flight wireless service. Today, it’s one of the biggest players in the field. Passengers crisscrossing the globe can choose between Gogo’s monthly (about $40 a month) and daily (about $10 a day) packages.

The Different Types of “Digital Wrap” Agreements

Browserwrap Agreement (also browse-wrap and browser-wrap) = Consent is given by using the site;
Clickwrap Agreement (also click-wrap) = User must click “I agree” to accept the terms;
Scroll-Wrap Agreement = User must scroll to the bottom of a document, and then click to accept terms;
Sign-In Wrap Agreement = The act of signing up to use a given service constitutes assent to the terms.

Clickwrap Agreement Lawsuit filed in 2014

But all that connects 37,000 feet in the air isn’t gold. According to at least two Gogo clients – Adam Berkson and Kerry Walsh – the company may be enrolling unwitting participants in an automatic monthly billing program. And even more unfortunately for Gogo, the pair’s claim may spawn a class action lawsuit.

Plaintiff’s Fundamental Argument In Potential Gogo Class Action

Berkson, Walsh and a handful of yet unnamed Gogo customers believe that the in-flight internet company is taking consumers for a fast ride. How? By tricking people into signing up for an automatic monthly service package as opposed to the one-time agreement most people think they’re getting. Plaintiffs insist that misleading graphics and an unclear terms of service all contributed to the deception.

Even though Gogo’s user agreement included an arbitration waiver, the judge ruled that in this case, customers are “not bound by mandatory arbitration and waiver of venue provisions.” Average users, the court also opined, “would not have been informed, in the circumstances presented in this case, that [they were] binding [themselves] to a sign-in-wrap.”

The class certification hearing is on July 9, 2015.

Judge Exhibits Some Tech Acumen at Clickwrap Agreement Hearing

The presiding judge in Gogo’s terms-of-service lawsuit has, encouragingly, exhibited a bit of tech acumen. Specifically, he considered color-coded graphics detailing “eye-tracking tendencies” that analyzed “comprehension between the printed page and computer screen and how the average user interacts with privacy policies, web-based advertisements and hyperlinks.”

Potential Consequences If This Browser Wrap Class Action Is Successful

Main Legal Question: Which Types of User Agreements Should Be Made Illegal?

If the Gogo class action moves forward, the main question will be: “How should courts deal with hybrid versions of browser wrap, click wrap and electronic contracts of adhesion – a.k.a., sign-in wrap?”

Showing a cheeky side, during the latest hearing, the presiding Judge quoted John Oliver, condemning: “If Apple put the entire text of Mein Kampf in their user agreement, you’d still click agree.”

Kelly / Warner handles all manners of internet law litigation and compliance issues. To learn more about our practice, go here.

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