Consumer Review Fairness Act: Summary and Impact On Small Businesses

graphic of hand choosing rating to accompany post about consumer review fairness actPoliticians gavel’d H.R. 5111, the Consumer Review Fairness Act (CRFA), into federal law.

What does ratification mean for small businesses? Well, as a whole, not much, because the law only affects folks who use “gag clauses” to prevent defamatory reviews.

The Consumer Review Fairness Act = No More “Gag Clauses”

What the law doesn’t say is this: “It’s perfectly legal to post defamatory online reviews.”

Instead, the statute invalidates contract provisions transferring copyright ownership of online reviews.

What do intellectual property rights have to do with online review defamation?

Well, over the past several years, to mitigate the impact of inaccurate, business-crushing rants, some businesses used contracts with online review parameters.

Here’s a hypothetical example of how it typically worked:

Dentist Amy performs patient Todd’s root canal. Before the procedure, Amy makes Todd sign an agreement — which is standard practice. Amy’s contract, however, also includes an intellectual property clause. You see, Amy’s agreement confers copyright ownership, of any future online reviews about her dental practice, from Todd to Amy. So, let’s say, in a fit of expected discomfort the day after the procedure, Todd posts lies about Amy’s work, despite her having done a perfect job. On account of the agreement, Amy could, theoretically, have proven herself “owner” of the comment and gotten it removed.

But the Consumer Review Fairness Act changes all that. Amy’s (hypothetical) contract — and countless others out there just like it — are no longer valid because the CFRA renders “certain clauses of a form contract void if it prohibits, or restricts, an individual from engaging in a review of a seller’s goods, services, or conduct.”

Reactions to the Consumer Review Protection Act

In praise of the new law, Hawaiian Senator Brian Shatz said:

“Reviews on where to shop, eat, or stay on websites like Yelp or TripAdvisor help consumers make informed choices about where to spend their money. Every consumer has the right to share their honest experiences and opinions of any business without the fear of legal retaliation, and the passage of our bill brings us one step closer to protecting that right.”

Yelp also seems pleased with the Consumer Review Fairness Act. Laurent Crenshaw, the company’s Director of Public Policy, enthused:

“While these clauses aren’t everywhere, when people hear about them, it does create a chilling effect and that’s something we’ve been concerned about and were very glad that Congress has taken steps to eliminate.”

You Can Still Sue Over Defamatory Online Reviews

The Consumer Review Fairness Act doesn’t prohibit small business owners from suing over genuinely defamatory reviews. Comments featuring false statements of fact, which materially harm businesses, may still be actionable. So, if you’re the victim of a libelous review, don’t throw your hands in the air and give up. You may be able to remedy the situation, legally.

Speak with a consumer review defamation attorney to discuss your situation and explore solutions.

Article Sources

114th Congress – CRFA

U.S. Senate Cmte. Announcement of CFRA

Online Trade Libel Attorney Gets Facebook Defamation Ruling Reversed

Picture of blackboard featuring the word Trust to accompany blog post about online trade libel caseTo his client’s relief, online trade libel attorney Dan Warner convinced an Arizona appeals court to vacate a trial court’s ruling in a Facebook defamation case. By successfully arguing that the presiding judge failed to properly apply the appropriate legal tests established in Mobilisa, Inc. v. Doe, Warner was able to slip his client from the defamation liability noose.

About the Case: Business Criticism On Facebook Leads To Online Trade Libel Lawsuit

An online trade libel lawsuit, the Plaintiff (whom we’ll call “Acme”) sued an anonymous user (“John Doe”) for allegedly posting false and defamatory statements about Acme’s product on Facebook.

Since the user posted under an alias, Acme filed a John Doe claim to uncover the real name of the anonymous defendant. After initiating the lawsuit, Acme sent subpoenas to Facebook and Domains by Proxy, in search of information (like an IP address) that would help reveal the identity of the product-critiquing user.

Upon receiving the subpoena, Facebook notified John Doe; Doe then retained online trade libel attorney Dan Warner who filed a motion to quash the subpoenas.

Online Trade Libel Catch-22: Preserving Privacy v. Accountability

Online service providers avoid passing out user data like Gremlins avoid bright lights. Why? Because online privacy is a legal quagmire, and if they’re not careful, ISPs can unwittingly find themselves dragged into users’ legal battles. Thus, to avoid unnecessary, resource draining, litigation entanglements, most websites adopt a hands-off approach when faced with civil information requests.

In some cases, however, ISPs are legally compelled to release user data, by force of a court order.  However, in Arizona, to secure a subpoena that forces websites to hand over identifying information on anonymous Internet speakers, plaintiffs must show that:

  • The speaker has been given adequate and a reasonable opportunity to respond to the discovery request;
  • The plaintiff’s action could survive a summary judgment on elements, irrespective of the speaker’s identity; and
  • The balance of the parties competing interests favors disclosure.

Unfortunately, in Acme’s case, the trial court judge denied the motion without making any findings of fact — or conclusions of law — regarding the required three-part Mobilisa test.

Warner’s appeal included several points on which the appellate court could have hung a reversal, but it chose to focus on the trial judge’s failure to adequately apply the “balancing” test, as outlined in Mobilisa.

The appeals court, in Warner’s client’s case, expressly held:

Because of the conclusory nature of the order below, we are unable to tell if the trial court correctly used the 3-part test outlined in Mobilisa v.  Doe, 217 Ariz.  103, 170  P.3d  712 (App.  2007) (using  a  summary  judgment  standard)  or  the  lower  prima facie standard urged by Dream Steam below with their citation to Best W. Int’l Inc., v. Doe, WL 2091695 (D. Ariz. July 2007). See Chaparral DIVISION ONE FILED:  RUTH A. WILLINGHAM, CLERKBY: 6/27/2016 RB Dev. v. RMED Int’l, Inc., 170  Ariz.  309, 311, n.3,  823  P.2d  1317, 1319  (App.  1991) (citation  omitted)  (conclusory  rulings  impair effective  appellate  review).    We  are  likewise  unable  to  discern whether  the  trial  court  engaged  in Mobilisa’s third-prong  balancing test when considering whether the disclosure of Doe’s name outweighed the community’s protected interest in supporting anonymous speech on the internet.

In other words, the court of appeals ruled that it was unclear if the trial court judge considered whether the plaintiff’s business interests outweighed the defendant’s right to anonymously express opinions on the Internet.

Consult With An Experienced Online Trade Libel Lawyer

In today’s digital, viral marketplace, a pristine reputation is crucial to maintaining a competitive edge; protecting your business’ good name is arguably as important as securing seed money.

If you’re fighting a product or business disparagement headache, get in touch with our team of online defamation fixers. We can help.

To learn more about online trade libel lawyer Dan Warner, head here.

Online Review Defamation: A Client Lied About Your Business. Now What?

online review defamation
Protecting your online reputation can be as difficult as winning the Tour de France…clean. So, what can businesses do when faced with online review defamation? Let’s take a look.

  • First, ask yourself: “Is the review accurate?” This can be the hardest step. If the review is negative but true, the chances of remedying the situation with a defamation claim diminish considerably. Why? Well, under United States law, legal defamation requires falsity. Does this mean you can’t combat the negative review? No, it doesn’t. You can. (We’ll get to “the how” below.)
  • Second, ask yourself another question: “Is the review fundamentally true, but grossly exaggerated?” Hyperbole, believe it or not, rarely passes the defamation sniff test. Sometimes, but not often. In the eyes of the law, reasonable people can distinguish hyperbolic speech from a false statement of fact. For example, an online reviewer condemns: “Mr. Widget’s Widgets are the WORST widgets in the world!” Mr. Widget is peeved about the review and threatens a defamation lawsuit. But the truth is, he probably wouldn’t win an online review defamation lawsuit, because “the worst company in the world,” is an exaggerated opinion and not tantamount to libel. Does this mean you can’t combat negative reviews? Again, no. (I promise we’ll get to how below.)
  • Third, if your detractor did, indeed, make a false statement of fact in an online review, you may be able to sue for trade libel or defamation. That said, most online defamation situations rarely blossom into lawsuits. Attorney intervention usually does the trick; people often — and innocently — don’t realize they’ve crossed a legal line and just need reminding to remove it.
  • If you’re confident a detractor made a false statement of fact, as opposed to a hyperbolic opinion, contact a lawyer. He or she can analyze the situation and help you work through questions like:
    1. Depending on details, should you send a letter, or use another marketing method, to squelch the effect of bad online reviews?
    2. Is the statement egregious enough to move forward with a full-fledged lawsuit? If yes, do you have enough evidence to effectively argue the case in court?

Find a attorney who will tell you, upfront, if your potential case is a dud or a stud.

To learn more about the nuances of online review defamation, click here. To read more about the history of U.S. defamation law, click here.

Online Review Defamation: Consider This Before Suing

A difficult customer or client posts a scathing review, with a low truthiness quotient, on a popular site like Amazon, Yelp or Ripoff Report. What can you, the business owner, do?

You’ve got three options:

  • Ignore the issue, letting the problem fester and grow.
  • Work with an attorney to get the offending comments removed.
  • Work with a marketing professional to neutralize the review’s negative effects.

According to this Forbes article, 88% of consumers trust online reviews as much as personal recommendations. So ask yourself: do you want to sacrifice business by ignoring a damaging review? I’m sure we can all agree: doing nothing is unwise.

So, with option 1 out of the way, which is better: working with a lawyer or a marketer?

88% of consumers trust online reviews as much as personal recommendations. So ask yourself: do you want to sacrifice business by ignoring a damaging review?

Deciding Between Marketing Fixes & Legal Solutions

Before deciding whether to deal with a damaging online review with marketing methods, legal tactics — or both — consider a few facts about U.S. defamation law.

  • Thanks to a high-profile legal scuffle between a preacher and pornographer, satire and parody aren’t legally defamatory. Consider: did your detractor cloak disdain in satire or parody? Yes? Then you’re probably better off working with a marketer. (Chill Tip: In cases of satire and parody, consider laughing it off. Humorlessness and hyper sensitivity are not qualities consumers easily tolerate.)
  • Is the statement an opinion? If yes, then it’s not defamatory under U.S. law. Comments like, “I hate this product!” or “John Doe is the WORST dentist I’ve ever used!” are opinions.
  • Does putting “In my opinion” or “IMO” before a false statement of fact automatically make said statement an opinion? No. IMO is not a legal shield that confers defamation immunity on all who use it.
  • What happens if an anonymous user posts a scathing review? You may be able to uncover their real identity. Click here to read more about the process.
  • What does it take to win a U.S. defamation lawsuit? It’s difficult, but possible. In short, plaintiffs need to prove that contested statements are about them, in addition to falsity, harm, and a level of negligence. For a state-by-state defamation law analysis, go here.

You Have Options. Don’t Wait, Act. Solutions Are A Phone Call Away.

If your business has suffered because of an inflammatory review, and you’re ready to fight back, let’s talk.

Our team has helped hundreds of individuals — and businesses– pluck defamatory content off the Internet. And note, a lawsuit isn’t always nececcary to remedy an online review defamation issue.
Who are we? Kelly / Warner — a group of attorneys, with strong marketing connections, that excels at fixing online defamation problems. To learn more about us, head here.

Reclaim your reputation — and revenue flow. Get in touch today.

Using Gag Clauses To Prevent Negative Online Reviews?

gag clauses to prevent negative online reviews

2017 Update: Federal politicians passed the Consumer Review Fairness Act, which outlaws online defamation gag clauses.

Are contractual “defamation clauses” – a.k.a. “gag clauses”—acceptable? Legally enforceable? Can you sneak them into customer agreements in an attempt to mitigate bad online reviews?

Let’s review.

Using Gag Clauses To Prevent Negative Online Reviews Can Backfire – Badly.

If you asked ten U.S. citizens, “What’s the cornerstone of American law,” nine of them might say, “Free speech!” And it’s a solid answer — which is why contractual consumer gag clauses are short sided. Not only is it an affront to the Constitution, but doing so will probably land you a boatload of viral, negative press.

Not All Gag Clauses Are An Assault On Free Speech…

To be clear: not all gag clauses are a spit in the face of freedom. Many contractual articles, which demand confidentiality, are perfectly fine – if not commonplace.

You may be thinking, “WTF!? How is that possible!? What happened to free speech?”

Fair question. But here’s the crux: confidentiality is the focal point of many agreements. To wit, celebrities regularly make employees sign privacy contracts – a type of “gag clause.” Commonly, startups and businesses require employees to sign non-disclosure agreements to protect corporate secrets.

…But Some Are

So, we’ve established that not all gag clauses are the work of a freedom-hating baddie. But, some contracts do cross a Constitutional line.

When online reviews became de rigueur‎, businesses and professionals started stuffing gag clauses into service contracts. But the practice quickly backfired. Netizens took to the Internet and shout-typed outrage over agreements that prohibited negative online reviews. In short order, lawyers who previously advocated for restrained gag clauses began advising against their use.

When Free Speech Crosses The Legal Line

It’s never OK to ban legitimate free speech, but there are legal limits – like defamation. In laymen’s terms, defamation (libel if written; slander if spoken) is purposefully negligent, harmful, and public lie telling.

Some people use gag clauses to prevent negative online reviews, but it typically backfires – especially if the language is hyper-aggressive.

Moreover, time and again, courts have established that the Constitution (and case law) rarely allows for “prior restraint.” In other words, it’s fine to punish a person, post-facto, for committing an act of slander or libel; however, trying to hush someone – before anything untoward actually happens – is contrary to established legal standards (except in certain circumstances, which usually involve commerce and employment).

In other words, don’t use gag clauses to prevent negative online reviews.

Some people try to use clauses to prevent negative online reviews, but it typically backfires – especially if the language is hyper-aggressive.

What Can Business Owners Do About Difficult Clients Who Litter The Web With Negative Reviews?

So, what’s an honest business owner to do when faced with a testy, ranting client? A client that embellishes the truth, but doesn’t, exactly, tell a bold-faced lie?

Talk to a lawyer. (“Yeah, right – you’re just saying that because your law firm handles this type of issue,” you protest. Yes, we’re a law firm that helps clients with reputation issues. But think of it this way: would you want a dentist to operate on your spleen?)

Gag Clause Case Study

FTC Sues Weight Loss Product Company Over Gag Clause

Recently, the Federal Trade Commission targeted a weight loss supplement company (we’ll call the company “WLC”) for “unfair and deceptive” marketing. As the nation’s consumer watchdog, the FTC punishes parties that use underhanded methods to market and promote. In fancy FTC language:

“[The FTC goes after businesses that] cause substantial injury to consumers that is not reasonably avoidable by consumers and that is not outweighed by countervailing benefits to consumers or competition.” 

Specifically, the case against “WLC” involves accusations of:

  • False and unsubstantiated claims;
  • Unconstitutional prior restraint;
  • Failure to disclose review compensations; and
  • Possibly violating HIPPA restrictions by inadvertently disclosing health information to banks and payment processors.

The “Gag Clause” That Had People Seeing Red

The terms of purchase agreement for WLC’s weight loss powder included the following phrase:

“Regardless of your personal experience with [WLC], you will not disparage [WLC] and or any of its employees, products or services.”

In other words: Even if you don’t like the product, you’re barred from saying anything bad about “WLC” – anywhere.

Defamation Clause Deemed Unacceptable by the FTC

Typically, businesses fall under the FTC’s scope for:

  • Making false claims about a product’s effectiveness.
  • Fabricating “studies” that unfairly sway public perception.
  • Engaging in negative option marketing.
  • Not disclosing “discount for feedback” initiatives (i.e., giving away free samples, money or discounts for writing reviews).
  • Deceptive billing.

FTC Rejects Gag Clause Explanation

Ostensibly, “WLC” included a defamation gag clause in its user contract. But the FTC said, “Nah-ah,” which isn’t surprising since the agency has traditionally kept a close eye on supplement manufacturers and marketers. Moreover, the clause included a damning phrase: “regardless of your personal experience with [WLC],” which probably tipped the legal scale; it’s one thing to warn against defamation, but another to threaten against free speech.

Free Contracts, Which Can Be Found Online, May Invite An FTC Investigation

In the resultant case, the nation’s consumer watchdog deemed the company’s defamation clause “unfair and deceptive.”

So, how can businesses guard against “unfair and deceptive” clients? By working with a lawyer who creates practical and protective arrangements that won’t attract the FTC’s watchful eye.

If you use a free online contract, the consequences could be dreadful. Why? Because freebie agreements usually aren’t as comprehensive as they can — and should — be. Sometimes, they include sneaky clauses that work against businesses.

Contacts & Further Reading

To avoid a run in with the Federal Trade Commission, work with an advertising and marketing lawyer. Partner Daniel Warner is an astonishingly effective litigator, and Aaron Kelly – the other named partner, enjoys a 10-out-of-10 rating on lawyer review website AVVO.com. Kelly also maintains a preeminent rating with venerated attorney assessment group Martindale-Hubbell.

To learn more about Kelly Warner, click here. To read more about other FTC cases and legal issues affecting today’s marketplace, head here. If you are currently dealing with an FTC investigation or inquiry, get an attorney. Going it alone could result in an avoidable — and unfavorable — business-crushing fine. Besides, hiring a lawyer to help with marketing initiatives may be a lot less costly than you think – and could ultimately save you a small fortune. Don’t wait. Get in touch today.

The Takeaway: In the United States, home to the world’s most free-speech-friendly constitution, using gag clauses to prevent negative online reviews is tantamount to a criminal act in the minds of many people. Adding egregious clauses to consumer contracts isn’t a wise move.

Article Sources

Trujillo, M. (2015, September 28). FTC sues weight-loss company for online ‘gag clause’ Retrieved January 12, 2016, from http://thehill.com/policy/technology/255130-ftc-sues-weight-loss-company-over-online-gag-clause

Board of Directors Defamation: Sued Over Accusations Slung At Meetings?

Board of Directors Defamation
Board of Directors Defamation: Can you sue a BOD member over accusations made at a private meeting?

Board of directors meetings can turn into verbal UFC matches — which is why they’re a regular source of slander and libel lawsuits.

But here’s the legal rub: in many situations, BOD showdowns are protected from the go-go-Gadget arm of U.S. defamation law – thanks to a legal concept known as privilege.

Privilege Affects Many Defamation Lawsuits

What’s privilege, legally speaking? No, it doesn’t mean “legal advantage, rich folks.” In legal terms, “privilege” describes a protected relationship. Doctors and patients, attorneys and clients, spouses – they all enjoy a certain amount of “privilege,” meaning that particular aspects of their conversations, between each other, are not subject to defamation law. Same goes for certain board of directors meetings.

Why are some BOD gatherings legally protected? Because organizations, businesses, and groups need to be able to discuss suspicions, rumors, and other unpleasantries. Doing so is part of how healthy establishments maintain good public reputations and keep their respective management engines chugging along.

The Incident: Accusations Fly at a BOD Meeting

Here’s an example of a recent defamation lawsuit involving a BOD meeting.

  • A sport’s club, with volunteer participants, fought through two heated board of directors’ meetings.
  • At the first, one of the members accused another member of filching funds.
  • At the second, the accused demanded an apology – which never came.
  • Ultimately, records proved the accusation inaccurate.
  • The accused party filed a defamation lawsuit against its accuser.

What Plaintiffs Must Prove To Win A Defamation Lawsuit

To win a slander or libel lawsuit, plaintiffs typically have to prove a lot more than a simple untruth. At the very least, claimants must convince a judge or jury that the defendant:

  • Made a false statement of fact about the plaintiff;
  • Acted negligently, recklessly, or with actual malice; and
  • Caused harm – material or reputational – via the contested statement.

Applying the Standards to this Board of Directors Defamation Case

If reports are accurate – and there aren’t any unknown extenuating circumstances – the plaintiff may win this board of directors’ defamation case. Publicly and falsely calling someone a thief is inherently harmful to a reputation. It’s considered “defamation per se” in some jurisdictions. And in per se cases, the plaintiff usually doesn’t have to prove harm.

BUT! Privilege May Save the BOD

As stated, legally speaking, privileged statements are “protected” statements. Speech that falls under the “privilege umbrella” may not be defamatory – even if inaccurate. Absolutely privileged statements are sometimes 100% immune from legal action. When language is labeled as “qualified privilege,” to win, the plaintiff must meet a higher standard of proof.

In this case, the board of directors’ meeting may be considered a “privileged meeting.” If it is, the plaintiff may not be able to win any damages.

A Common Misconception about Defamation

Over the past decade, “slander” has assumed a colloquial meaning, in addition to the legal one. It’s common for people to say a negative comment is “slanderous.” But as discussed above, actual slander involves more than a negative opinion.

Contact a Defamation Attorney

Free speech is a cornerstone of American life. However, you can’t maliciously lie about another party. Doing so is defamatory, and legal remedies are available to people on the receiving end.

Our attorneys handle all manners of slander and libel lawsuits – both online and off, personal and business-related.

We’re a full-service, boutique practice offering better-than-big-firm results for a fraction of the price.

 

Google Defamation: Will The Search Giant Survive Down Under?

Google defamation case
Google Defamation: Will Google have to shutter its doors down under after an unfavorable online defamation ruling against the search engine?

Has anybody in the United States successfully sued Google for defamation? Attempts have been waged, but the plaintiffs’ crusades usually fail. Sure, folks win defamation lawsuits against authors of defamatory statements. But against Google? Nah. Google almost always walks away unscathed – fresh as a Mentos factory.

Why?

Stateside statutes make it very difficult for claimants to win “Google defamation” lawsuits. After all, Big G doesn’t create 95% of the content it displays; it simply acts as an aggregator of third-party information.

But not every country has laws that protect Internet service providers and user-content platforms. Recently, an Australian court ruled against the mega-search-engine in what has quickly become a high-profile online libel lawsuit, which, theoretically, has the power to decimate Google down under.

Doctor Defamation Lawsuits: The Usual Story

It happens a lot. A medical professional treats a petulant “Mr. Patient.” Things don’t go well. Mr. Patient isn’t thrilled with the doctor’s work or bedside manner or billing practices or bad breath. So, good ole’ Patient takes to the Internet and shout-types his woes to the world.

Sometimes, in online patient v. doctor brawls, the digital diatribes are legitimate complaints; sometimes they’re exaggerations, and sometimes they’re bold-faced lies. No matter the category, online reviews have the power to demolish practices and ruin careers. Which is why many doctors move forward with Internet defamation lawsuits in the face of hyperbolic, inaccurate, and damaging Internet rants.

And believe it or not, the case jurisdiction has a huge effect on the likelihood if its success.

Defamation Laws Vary, Greatly, By Nation

Nearly every country in the world has defamation laws, but the terms of those laws are as varied as humanity itself. For example, in countries that still recognize a monarchy (not all), the crime of lese majeste (in today’s parlance: trash talking royals) can get you thrown in the clink – for years. In some non-secular countries, profanity and blasphemy can land you six feet under.

And believe it or not, British Commonwealth countries and the United States – though similar in many ways – are on arguably opposite ends of the defamation scale. In short, countries like Great Britain, Australia, and Canada are primarily plaintiff-friendly when it comes to slander and libel laws, whereas the U.S. is decidedly defendant-friendly.

Australian Doctor Disparaged on U.S.-Based Ripoff Report Goes After Google for Defamation

The contracts between U.S. and Australian defamation laws recently took center stage in a shocking ruling by the South Australian Supreme Court – and the decision may have Google shaking in its bytes.

Here’s the story:

A peeved Australian medical patient blasted a doctor on infamous consumer review website RipoffReport.com. Clearly, the doctor wasn’t pleased – so she initiated legal action. Interestingly, the doctor opted to include Google as a defendant. Interesting because it’s almost unheard of to win an indexing defamation lawsuit against the Mighty G (especially in the United States). Nevertheless, our intrepid doctor went for it. Why?

Well, when the disparaging and damaging content appeared on RipoffReport.com, the doctor alerted Google of its defamatory nature. But Google did nothing. The hyperlink remained front and center in the index. She felt the search engine ought to be held liable, too.

Doctor Wins Google Defamation Lawsuit

And guess what? She WON! Against Google! The Teflon Google! A court held the search engine accountable for content published on Ripoffreport.com!

“How!?” You might ask.

The court reasoned:

“If a search of Dr Duffy’s name had merely returned the URL of the first Ripoff Report webpage without functioning as a hyperlink and without accompanying text, it could not be said that Google was a publisher of the content of that material. To access the first Ripoff Report webpage, the user would need to enter the URL into the address box of the internet browser.”

A U.S. court would not have returned this verdict. No way, no how. Because there’s a law in the United States – commonly known as Section 230 of the Communications Decency Act – which effectively frees internet service providers – and many social media platforms – from defamation liability over third-party content. Or, to put it more simply: many websites are not held legally accountable for user content and posts.

Read more about Section 230 of the CDA

Google Defamation Rules: What Happens If A Country Doesn’t Protect ISPs From Third-Party Liability?

But what happens when an international online behemoth, like Google, is slapped by a ‘foreign’ court? Does it affect the rest of the world? After all, the Internet has smudged the line between nation states. And even though there is a Google for each one, thanks to VPNs, cross-border networks and, heck, even easily available travel options, people aren’t necessarily relegated to their hometown Google.

The Law Is Nebulous

So, must the search engine apply an Australian court’s ruling across the global board? Is the mighty G responsible for thwarting an Australian online rant-typer on “Google, America”?

To be sure, no definitive answer exists. Like the Internet itself, international Internet laws are complex and in constant flux. Countries try to do their parts by limiting the amount of “online libel tourism” (Internet defamation plaintiffs who shop for the friendliest jurisdiction). But government statutes aren’t airtight. In fact, a few years ago, the U.K. tried to put a stop to libel tourism by revising their defamation laws, but people are still finding loopholes to use England’s ostensibly pro-plaintiff slander and libel laws.

The Inevitable Upcoming Fight Against Australia’s Google Defamation Ruling

The Australian defamation ruling against Google has tech and legal tongues wagging. Pundits are concerned about the possible (and largely theoretical) censorship implications. The decision, arguably, also sets a bad precedence for continued online innovation.

Every pundit and lawyer expects Google to appeal. It’s sure as done. If a higher Australian court doesn’t overturn the current mandate, Google may morph into a very different search animal, down under. Until then, expect a metric ton of amicus briefs to flood the courts, on behalf of Google.

Steve Wynn Defamation Lawsuit; Privilege Abounds

defamation privilege
Will Steve Wynn win his latest defamation battle? Will defamation privilege play a role?

Gaming mogul Steve Wynn is at the eye of a Massachusetts legal hurricane. His decision to build a casino in Charlestown has a sparked a “concern storm” among some residents and representatives. Detractors believe a high-priced casino in the area will prove detrimental to locals; they also want a public vote on the matter.

The clash spawned a defamation lawsuit, in which “privilege” will likely play a key role.

Legal Documents to the Media Lead to Libel Claim

Camp Wynn contends that anti-casino activists got a little too chummy with the media. You see, some legal documents ended up in the hands of the Fifth Estate. How? Nobody knows. But according to Wynn, those documents included falsehoods about his business practices.

What issues is Wynn protesting? What did the “rogue subpoena” say that sparked his defamation lawsuit?

  • He allegedly employed two former Massachusetts state troopers;
  • Officials may have unethically engaged a criminal about the land on which the casino will sit;
  • Team Wynn orchestrated a secret meeting regarding a “felon’s” land interest.

The gaming mogul swears, “Nah-ah; never happened.” And since Wynn guards his reputation like the Titan guards Braavos, he filed a defamation lawsuit. (Wynn did; not the Titan.)

Wynn’s take on the matter:

“No individual or company who presents themselves honestly in the Commonwealth of Massachusetts, by any measure of fair play, should be subjected to the defamatory political abuse that we have experienced, and it is our intention to finally deal with it.”

Will “Privilege” Apply In This Casino Defamation Case?

What factors will affect Wynn’s defamation lawsuit? Like any slander or libel plaintiff in the U.S., to emerge victoriously, Wynn must satisfy the four pillars of defamation, which you can read more about here. Within that framework, “privilege” will likely be a hotly debated factor.

Why?

So-called “privilege” – in the legal sense – plays a significant role in United States defamation law. Standards vary between jurisdictions, but generally speaking, privileged speech is protected because of an expected or practical need, which serves judicial proceedings, privacy, or the public good.

Hypothetical Example of Privilege in a Defamation Lawsuit

To wit: Let’s say a woman named Jane tells authorities that she thinks her neighbor, Jack, is a child abuser. She says Jack’s kid always has bruises, and she can hear screaming all hours of the day. But it turns out that Jane’s wrong; Jack’s kid is just a loud klutz who spends all day screaming and falling. Peeved at the accusation, Jack sues Jane for defamation. In this case, Jane may be able to claim some sort of “privilege.” After all, officials don’t want to discourage vigilant citizenry in the face of potential criminality. Remember, we’re all supposed to “say something” if we “see something.”

Types of Defamation Privilege

Sometimes, statements made in the course of an employment review are protected by privilege. Same goes for board meetings, professional consultations, and other types of relationships. Doctors and their patients sometimes enjoy certain privilege; as do attorneys and their clients, plus married couples.

Jurisdiction Matters When Litigating Privilege

To be clear: whether or not a statement is privileged depends on the circumstances of the case and jurisdiction.

Absolute Privilege & Qualified Privilege

There are two types of “privilege” – absolute and qualified. Absolutely privileged statements are usually immune from successful defamation actions. In cases involving qualified statements, the plaintiffs’ must meet a higher proof standard to win.

In Wynn’s defamation case, the subpoenas may be classified as privileged legal documents – whether absolute or qualified is yet to be seen. As such, a judge will probably consider:

  • First, whether or not the “leak” was allowable (not all leaks are legal; officials made sure of that after being “pwnd by Assange”);
  • If the judge says, “No, the leak wasn’t lawful,” then the case will most likely switch gears. But that scenario is unlikely. Possible; but unlikely. If, however, the judge labels the leak “allowable,” then the next question becomes:
  • Was publicizing the information admissible? If yes, then Wynn may not triumph. IF the language is deemed absolutely privileged – even if untrue — the suit will die.
  • If, however, the statements fall under the umbrella of qualified privileged, then Wynn still has a shot. He’d just have to satisfy a higher level of proof.

Curious if “legal privilege” would apply in your case? Speak to a defamation lawyer about the specifics of your situation.

Chat with A Lawyer about Your Reputation Challenges

Have you been pelted with a defamatory attack? Has someone smeared your reputation?

Ready to fight back?

You have legal options – and not all of them are a lawsuit.

Contact Kelly Warner law. A unique firm where the partners work on every case, at Kelly / Warner, you won’t be in the hands of a novice associate. Let’s talk; we can help.

Article Sources

Arsenault, M. (2015, October 7). Wynn sues for libel in latest salvo over casino – The Boston Globe. Retrieved November 2, 2015, from https://www.bostonglobe.com/news/nation/2015/10/06/wynn/KkTzsMIMPkWKo1u5MKd6TI/story.html

Steve Wynn’s unwelcome, and unnecessary, libel lawsuit – The Boston Globe. (2015, October 7). Retrieved November 2, 2015, from https://www.bostonglobe.com/opinion/editorials/2015/10/07/steve-wynn-unwelcome-and-unnecessary-libel-lawsuit/krMdwlUJsl8kkv62D966bN/story.html

The Speak Free Act: Explanation and Analysis

speak free act of 2015
Will the latest online defamation bill in DC be a raw deal for small business owners?

The Speak Free Act is a new bill swirling its way through Capitol Hill’s intern-saturated halls. A bi-partisan proposal endorsed by both the technology lobby and free speech advocates, the proposed law is meant to curtail illegitimate legal threats over online reviews. But will it hurt small businesses?

Is everyone happy about the bill? Of course not. However, there is substantial support for the proposal. And why not: it’s an election year. What better – and let’s face it, safer – topic to champion than free speech? You’d be hard pressed to find a voter opposed to First Amendment rights.

Is the bill a redundant piece of anti-censorship legislation? Or, is it a wolf in bi-partisan, kumbaya clothing?

Will this bill be terrible for small businesses lacking huge budgets to:

  • Maintain a high-profile search engine optimization campaign;
  • Enlist the help of lawyers every time a competitor pelts them with a fake online review?

First Things First: Explanation of a SLAPP Lawsuit

Before delving into the nuts and bolts of the Speak Free Act of 2015, we must discuss Strategic Lawsuits against Public Participation – a.k.a., SLAPP Lawsuits.

What is a SLAPP Lawsuit?

Parties with “deep pockets” usually file SLAPP suits against ostensibly penury parties. What differentiates SLAPP lawsuits from “regular” defamation lawsuits is the typically tenuous nature of the claim. The true purpose of the filing is not legitimate redress, but instead an intimidation tactic targeting the defendant’s bank account and stress triggers.

The theory goes that defendants in such situations, paralyzed by fears of legal costs and protracted litigation, will fold in the face of “power,” and stand-down from a defamation battle they may have won.

Not All States Have Anti-SLAPP Laws, Which Is Why Some People Are Clamoring For A Federal One

Advocates want a Federal anti-SLAPP law because not all states have one. As a result, sometimes people go “jurisdiction shopping” to file questionable claims in states that either a) don’t have an anti-SLAPP statute or b) a very weak one.

An Increase in SLAPPs since “The Internet”

The Internet allows for greater participation in matters of public concern. Concordantly, the number of SLAPP lawsuits has skyrocketed over the past ten years. As a result, free speech advocates have been pushing politicians to pass a federal law that aims to eradicate weak defamation lawsuits.

Explanation of the 2015 Speak Free Act

Full Title

H.R. 2304: Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts Act of 2015. https://www.govtrack.us/congress/bills/114/hr2304

Bill Sponsorship

A bi-partisan effort, Republican Blake Farenthold from Texas and Democrat Anna Eshoo from California are the primary co-sponsors of the 2015 Speak Free Act.

How It Would Work

Anybody who feels they’ve been unjustly hit with a defamation lawsuit could file a special motion protesting the claim. If, in said motion, the aggrieved party can sufficiently argue the likelihood of their success at trial, a judge could dismiss the case “with prejudice” – and the defendant would, under provisions of the bill, be able to recoup legal fees from the plaintiff.

A Victory for The Yelp! Lobby?

In 2014, Yelp rooted a lobbying presence on K Street. And it appears that the money was well spent.

Some folks on Capitol Hill credit the “Yelp lobby” for pushing through H.R. 2304. Previously, the issue was exceptionally partisan. Democrats and Republicans could not agree. But once “neutral” Yelp stepped up, opinions shifted; things happened. A D.C.-based policy director, Evan Mascagni, explained:

“Yelp’s involvement has been huge. It has been really tremendous for the cause.”

Defamation Lawyer Contact Information

Did you land on this page because you need a defamation law question answered? If yes, get in touch with Kelly Warner. We have a dedicated slander and libel practice and our team excels at Internet defamation cases.

Contact us today to begin the conversation.

Article Sources

Eggerton, J. (2015, May 13). SPEAK FREE Act Introduced To Protect Online Criticism. Retrieved September 30, 2015, from http://www.broadcastingcable.com/news/washington/speak-free-act-introduced-protect-online-criticism/140841

SPEAK FREE Act of 2015. (n.d.). Retrieved September 30, 2015, from http://www.anti-slapp.org/speakfreeact/

Facebook Law: Consequences of Hacking Into Another Person’s Account

Facebook law attorney
Facebook Law: Consequences of Hacking Into Another Person’s Account

You wake up one day, power on your phone, and BOOM! Life exploded overnight. An enemy successfully hacked your Facebook account and sent outrageous emails to your friends and family — emails which appear to be coming from you!

Nightmare, right? And one that that a woman named “Steph” (not real name) says she endured at the hands of her former paramour.

In response to the incident, Steph filed a lawsuit, but the court dismissed the claim because the statute of limitations had expired. Recently, though, an appeals panel reversed the lower court’s decision; Steph can now move forward with her online defamation case.

The lawsuit is significant because it could further define the scope of the Computer Fraud and Abuse Act. In non-legal terms, the case is important because it highlights the very real – and very damaging – consequences for seeking “digital revenge” – against a person or business rival.

The lawsuit is significant because it has the potential to further define the Computer Fraud and Abuse Act’s scope.

Example Incident: Ex-Lover Allegedly Hacks Facebook Account & Sends Messages

One day, in the not so distant past, a woman named “Steph” suddenly couldn’t access her email and social media accounts. The logins just weren’t working. Frustrated, she enlisted an attorney to investigate the issue. And guess what: the lawyer found a treasure trove of potential illegality, in the form of emails sent from the account during the time Steph was locked out.

At first, Steph believed the Culprit to be her ex-lover’s wife and filed a lawsuit against the woman. But it turned out that the wife was innocent; instead, the alleged culprit was Steph’s former paramour, who allegedly confessed.

Lower Court Tossed Facebook Law Case

A lower-court initially tossed the case, claiming Steph waited too long to bring charges. But a three-judge appeals bench disagreed, in part, with the lower court’s decision, ruling that even though the statute of limitations had expired for the email account claims, Steph could move forward with the Facebook ones.

Why the discrepancy between the two courts? The appeals judges considered the persistent realities of present-day digital life.

Judges Starting To Consider Digital Culture In Social Media Rulings

In the initial ruling, the court – for lack of a better term –considered Steph’s online accounts as one entity. But the appeals court wisely reasoned that people no longer have a single email address or account; between Facebook, Twitter, Instagram, your favorite blog, news portals – you name it – the average person has upwards of 15 to 25 different digital accounts.

Since Steph hadn’t discovered her hacked Facebook till 2012, the statute of limitations for the Computer Fraud and Abuse Act and the Stored Communications Act had yet to expire.

facebook defamation case
Posing as someone else on Facebook may be a violation of federal law in some cases.

Potential Consequences of Hacking, Defaming or Otherwise Misappropriating

Although it’s tempting and oh-so-easy (the keyboard is right there!),  seeking digital revenge by either a) hacking into another person’s online accounts or b) pretending to be someone else on the Internet is a monumentally stupid idea. These acts aren’t only a violation of the Computer Fraud and Abuse Act, but breaches of an inordinate amount of state impersonation, privacy, and Internet law statutes. If Steph wins, her former flame could, in theory, go to jail. He could also find himself in bankruptcy court on account of massive fines.
Hacking is a violation of the Computer Fraud and Abuse Act, and also violates an inordinate amount of various state impersonation, privacy, and Internet law statutes.

Hacking is a violation of the Computer Fraud and Abuse Act, and also breaches an inordinate amount of various state impersonation, privacy, and Internet law statutes.

All because of a little churlish social media tomfoolery.

Even If You Don’t Hack,  Legal Consequences Abound

Let’s say you buy a URL that features someone’s name. Then you take it upon yourself to litter said website with lies; the person whose name you co-opted could successfully sue for online defamation or false light invasion of privacy.

An Online Alias May Not Protect You From Being Found

What about anonymous online reputation attacks, you ask?An online alias isn’t an invisibility cloak. All that’s required to denude an anonymous defamer is a court order compelling an ISP to hand over identifying information. If a judge believes that a plaintiff has a shot at winning their case, there’s a good chance they’ll issue a court order.

“What about a VPN to hide your IP?” Also discoverable.

When faced with the taste for revenge, the best thing to do is step AFK and engage in something you enjoy. Zen out, because that one “muwahahahahaha” could, in theory, land you on Skid Row – or behind bars.

Do you need a Facebook law attorney? Get in touch with Kelly Warner today.

Source

Neumeister, L. (2015, August 4). Woman can go ahead with lawsuit alleging Facebook defamation. Retrieved September 28, 2015, from http://finance.yahoo.com/news/woman-ahead-lawsuit-alleging-facebook-203809655.html

Canadians May Need U.S. Lawyer To Get Content Removed From Google

Get content removed from Google
How can Canadians get content removed from Google.com?

When Google is faced with a court order compelling the removal of a defamatory web page from its index, do you think Google should:

  1. Not remove the link at all, because doing so is sliding down a slippery anti-free-speech slope?
  2. Remove the link, but only from the national index of the country from which the court order originates? Or,
  3. Remove the link from every Google index worldwide?

This is the dilemma the Supreme Court of British Columbia had to consider in Niemela v. Malamas, 2015 BCSC 2014 (“Niemela”). The justices’ final decision: Choice B – only remove links from Google.ca, which means the pages can still be included and visible on google.com.

What Does This Ruling Mean For Canadians Who Want To Get Content Removed From Google?

What does this ruling mean in practical terms? Canadians who’ve successfully obtained an online defamation removal order in Canada may need to file another motion, in a U.S. court, to get the material removed from Google’s main index, Google.com. And even then, it may not be a sure thing since Canadian and U.S. defamation laws differ greatly.

Niemela v. Malamas: Online Defamation Case Summary

Negative Online Reviews Posted About Lawyer

In 2012, someone started posting negative online reviews about Vancouver attorney Glenn Niemela. Confident the posts were the work of a former “biker gang” client, Niemela informed the police of the situation but declined to take legal action. By 2014, though, he’d concluded that the reviews were hurting his business and filed a pair of lawsuits in an effort to get the content removed from the Web.

Lawyer Files Lawsuit Against Alleged Defamer and Google

Instead of just suing the suspected culprit, Niemela also filed a claim against Google over the “snippets” the search engine’s algorithm grabs to display in results.

In his legal pursuit of the actual defamer, Niemela succeeded. A Canadian court declared the statements on ripoffreport.com and reviewstalk.com defamatory. As a courtesy, the search engine offered to remove the offending pages from its Google.ca index, where 95% of search is done in Canada.

Kelly Warner Law helps Canadians who want to get content removed from Google.com.
Kelly Warner Law helps Canadians who want to get content removed from Google.com.

“Remove the links worldwide, Not just in Canada!”

But Niemela wanted more from Google. To secure his good name, he sought removal of the defamatory pages from Google’s worldwide index, especially Google.com. “[A]ny person’s honour, reputation and personal privacy ought [not] to be marginalized or compartmentalized to solely one jurisdiction, being Canada, by solely blocking the offending URLs from google.ca,” Niemela rationalized in his lawsuit.

Court Ruling: Only Remove From Canada’s Search Index

The British Columbian court, however, didn’t think Niemela’s argument satisfied the necessary legal tests. Specifically, the bench didn’t think Niemela demonstrated how his life or career would be irreparably harmed if the contested webpages weren’t de-indexed across all of Google’s properties.

The judges also disagreed with Niemela’s lawsuit against the search giant, in which he argued that search engine text snippets amounted to defamation. But the judges disagreed since Google’s algorithm is a “passive instrument” that does “not authorize the appearance of the snippets on the user’s screen ‘in any meaningful sense’.”

International Internet Law Attorneys

Kelly Warner’s online defamation lawyers frequently work with clients in Canada and enjoy professional relationships with attorneys in British Columbia, Quebec, Alberta and Ontario. Solving cross-border Internet law cases is one of our strengths.

Contact Kelly Warner’s top AV-rated international Internet law attorneys about  how to get content removed from Google.

Yelp Reputation Law: The Case of the Auto-Dealer & Unsatisfied Customer

Yelp reputation lawyer
Yelp Defamation Case Study: Business v. Unsatisfied Customer

In This Post:

  • Summary of Yelp defamation case;
  • Discussion about how to win a Yelp reputation case;
  • Contact information for an online defamation attorney;

Another Yelp! (“Yelp”) defamation case made headlines. In the latest installment of “Law and Order: Online Reputation Unit,” a California auto dealer is suing a client over a disparaging Yelp review.

Yelp Defamation Case Study: Business v. Reviewer

The Basics

Plaintiff: Zeibak Auto Trading

Defendant: Zaki Ibrahim

Lawsuit Catalyst: Ibrahim bought a used car for his wife at Zeibak Auto Trading. According to an ABC News report, the car gave him problems after he drove it off the lot. So, according to Ibrahim, he returned to Zebiak’s with hopes of calmly discussing the matter. Allegedly, while there,  staff ignored Ibrahim. Upset about the poor service, Ibrahim posted a negative review on Zebiak’s Yelp page, outlining the purported incident. In the words of Mr. Ibrahim:

“I described the experience as being a nightmare to say the least, and especially since I tried from my end to resolve the matter amicably.”

Who Will Most Likely Win This Yelp Reputation Case?

Few case details have made their way to the press, so it’s impossible to do a full – and fair – analysis. But what we can do is take a look at the basic requirements for winning an online defamation lawsuit in the United States, in relation to the facts of this Yelp reputation case.

What Constitutes Legal Defamation?

To win a slander (spoken defamation) or libel (written defamation) lawsuit in the United States, plaintiffs must, at the very least, satisfy four legal elements.

  • Identity: The first thing defamation plaintiffs must prove is that the contested statements are about them. Slander and libel lawsuits are lost because the claimants couldn’t prove that the defendants were talking about them.
  • Falsity: Due to the First Amendment and established case law, pure opinion and truth generally aren’t defamatory in a U.S. court of law. Plaintiffs almost always have to prove that their respective defendants made false and unprivileged statements of fact.
  • Harm: Except for defamation per se cases, nearly all defamation plaintiffs must prove that the contested statement(s) caused them either material or reputational harm.
  • Negligence: Plaintiffs must also demonstrate that the defendant acted negligently by publishing, speaking, or otherwise broadcasting the contested statement.

Mr. Ibrahim told ABC7 Los Angeles that he is ready to fight this Yelp defamation lawsuit, admonishing the auto dealer for “essentially trying to sue their customers into silence.”

In U.S. Defamation Cases, Plaintiffs Must Prove The Defendants Lied

Unless the auto dealer can somehow prove that Mr. Ibrahim is prevaricating, this lawsuit probably won’t go far. Why? Because under United States defamation law, it’s the responsibility of the plaintiff to prove that the defendant made an unprivileged, negligent, false statement of fact. In the context of this Yelp defamation case, Zeibak would need to demonstrate that Ibrahim’s visit didn’t unfold as he described, which – who knows – may be the case. We’ll just have to wait to see how this all turns out.

Got Questions? Speak With A Yelp Defamation Attorney

In the meantime, if you’re in search of a Yelp defamation lawyer to review a situation, get in touch with Kelly Warner. Our attorneys have helped countless individuals and businesses with various online reputation matters. A top-rated firm, our track record speaks for itself.

To learn more about Kelly Warner Law, please click here. If you’re ready to set up a consultation, please head here to schedule an appointment – we look forward to speaking with you soon.

Australian Defamation Case Study: The Hockey Incident

Australian defamation law
A surprising decision in an Australian Twitter defamation case further defines Internet libel laws in the Antipodes.

An Australian defamation ruling will probably affect how Australians’ tweet from here on out.

In this post we’ll review the case, and then examine the likelihood of a U.S. court delivering the same verdict.

The Tweets That Launched an Australian Defamation Lawsuit

Last May, Fairfax Media (an Aussie outlet) ran a story about Australian Treasurer Joe Hockey’s alleged complicity with, what sounds like, a modern-day political simony scheme. According to Fairfax Media, a Sydney business group supposedly bestowed inappropriate “access” on Hockey, presumably in exchange for political favors.

As part of efforts to promote the story, Fairfax released two tweets. One said, “Treasurer Hockey for sale,” followed by a link; the second tweet, which also included a micro-summary of the story, read, “Treasurer for Sale: Joe Hockey offers privileged access.”

In response, Hockey filed an online defamation lawsuit.

Both sides presented their arguments, and Justice Richard White ruled:

“There would have been a large number of persons, perhaps in the tens of thousands, who read the bare tweets and who did not read further.”

A Fairfax Media spokesperson explained to the press:

“The Court upheld Fairfax’s defense of the articles and found them not to be defamatory. Mr Hockey’s claims were only upheld in respect to the publication of the SMH [Sydney Morning Herald] poster and two tweets by The Age because they lacked the context of the full articles.”

So, what does this all mean? In the Fairfax Media Twitter defamation case, the court ruled that the investigative article, about Hockey, wasn’t defamatory, but the tweets were libelous because they lacked clarifying context.

Would Hockey Have Won This Twitter Defamation Case In A U.S. Court?

Two win a defamation lawsuit in the United States, at the very least, plaintiffs must meet the following requirements.

Falsity: Most statements aren’t defamatory if they’re true. Claimants must prove that the defendants made false declarations of fact.

Harm: It’s not enough to demonstrate falsity. Typically, plaintiffs must show that the speech caused material or reputational damage. (The exception to this rule is defamation per se, which you can read more about here, in the sidebar.)

Negligence or Actual Malice: Intention is a big part of defamation law. To win cases, plaintiffs must prove that the defendants either acted negligently or intentionally released the inaccurate information.

So, taking the parameters of U.S. defamation law into consideration, would Hockey have won this Twitter legal battle on American soil? Probably not. Especially since the court found that the article, which the tweets referenced, was not defamatory.

Differences Between U.S. and Australian Defamation Law

Like other Commonwealth nations, Australian defamation laws are more plaintiff-friendly than those in the United States,  which is why some stateside clients file overseas, circumstances permitting. That said, so-called libel tourism is universally frowned upon; and though it has been done, getting any court to accept a foreign defamation case is no easy task, especially since the 2013 libel reforms.

Speak With An International Online Defamation Attorney

Our firm has successfully handled hundreds of Internet defamation and trade libel cases. A top firm with Av-rated attorneys, Kelly Warner lawyers are known for their attention to detail and creative solutions.

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