Amazon’s New Review Policy: Big Changes

Picture of two business people on couch to accompany blog post about Amazon’s new review policy
Amazon’s new review policy crashed into Planet-Online-Retail, and now feedback facilitators are working round the clock to adjust business models.

Let’s take 3 minutes to outline the situation — in plain language — and examine how the change will affect Amazon sellers and reviewers.

How Amazon Reviews Used To Work

Before this e-commerce October surprise, Amazon let sellers offer discounts in exchange for product reviews, so long as the reviewer included proper disclosures. The system seemed to work and even spawned review facilitation businesses that helped vendors plan and execute discount-for-review programs.

But Amazon never seemed entirely comfortable with paid reviews, of any ilk. In fact, to combat the trend, platform engineers deployed a “learned algorithm that gives more weight to newer, more helpful reviews” and implemented stricter “verified purchase” badge requirements.

Amazon has even sued a few unlucky pay-for-review services, which you can read about here and here.

Amazon’s New Review Policy Points

So, what was the big change? In short: Sellers can no longer offer free products and discounts in exchange for a review. Here is a handful of specific points:

  • Sellers can’t use third-party services to loophole around the restriction.
  • The policy took effect immediately, but vendors shouldn’t worry about past posts. However, Amazon may remove old reviews “if they are excessive, and don’t comply with prior policy.”
  • Sellers CAN “continue to offer discounts and promotions as long as they are not offered in exchange for reviews.
  • Ignoring Amazon’s new review policy is grounds for account suspension.
  • Review facilitators can no longer require members to leave reviews.

Authors Are Exempt From Amazon’s New Review Rules

Which segment of Amazon World doesn’t have to worry about the new review guidelines? Authors. Giving away advanced copies of a book, in exchange for a review, is a publishing industry solemnity — and the online retail giant doesn’t want to disturb the ancient institution. In Amazon’s exact words, the company will “continue to allow the age-old practice of providing advance review copies of books.”

What’s VINE Got To Do With It?

Discount-for-feedback programs are strictly prohibited “unless […] facilitated through the Amazon Vine program.”

Wait, what?

Yep, Amazon is now the only acceptable channel for early offer arrangements. But even that’s a slight misnomer because Amazon doesn’t “incentivize [Vine members to give] positive star ratings, attempt to influence the content of reviews, or even require a review to be written.”

Is Amazon Sticking It To The Proverbial “Little Guy”?

Amazon’s new review policy press release states that “when done carefully,” incentivized reviews “can be helpful to customers by providing a foundation of reviews for new or less well-known products.”

To put it another way: Amazon admits that “incentivized reviews” help online retail startups, but it’s outlawing the practice regardless? Apparently so.

Now, does this mean it’ll be impossible to start a successful FBA store? Not at all. Most review facilitators have already operationally adjusted to the change.

But beyond that, in the simple terms, people like reviewing products. Stick to an effective marketing plan — which includes follow-up e-mails and superior customer service — and you shouldn’t notice a seismic change in sales.

Online Retail Legal Reminders and Considerations

Before our 3-minutes are up, we wanted to leave you with 3 legally minded thoughts:

  • “Unfair and deceptive marketing” rules do apply. Adhere to them or risk and FTC investigation and fine.
  • In light of Amazon’s new review policy, feedback services should make a Herculean effort to contact their review-writers’ networks. Don’t forget, a review that includes something to the effect of “received at a discount for an honest and unbiased review,” is now non-compliant.
  • Account suspension is reversible in some instances. Talk with an online retail consultant who can help pinpoint the exact problem, and provide the best plan of action to restore your account.

Good luck with Amazon’s new review policy. If you have questions, get in touch.

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.

Yelp Defamation: Is The Site Required To Remove Defamatory Reviews?

Yelp Defamation

Yelp! (“Yelp”) isn’t happy.

A California judge ordered the review site to remove a defamatory posting. Yelp, for its part, felt the decision defied Section 230 of the Communications Decency Act and appealed — but lost.

Will the ruling affect future Yelp defamation claims? Will business owners be helped or hurt by this turn of events?

Let’s review the case and discuss the potential implications for SMBs.

Background Summary: Business Owner Sues For Defamation Over Yelp Review

We live in the Age of Online Reviews, so it happens all the time. A service provider clashes with a client. Eager to share his displeasure with the world, said client (under the altruistic auspices of “warning others”) takes to Yelp and posts a scathing — often hyperbolic — negative review. Within days, the target’s inquiries come to a grinding halt.

It’s every business owner’s worst nightmare, and it happened to an attorney a few years back — so she sued for online defamation.

Who won?

To shorten a long story, the client failed to appear in court, which triggered a default win, and the judge ordered Yelp to remove the defamatory review.

Yelp’s Position: Forcing Content Removal Defies Section 230 of the CDA

But Yelp didn’t want to remove the review.

In its defense, the review website argued insufficient governance, maintaining that Yelp wasn’t party to the lawsuit, and subsequently not subservient to the court in this matter. Yelp also reasoned that the removal order contravened Section 230 of the CDA, which gives immunity to websites dragged into lawsuits involving defamatory user content. Or, to put it another way, it’s the law that stops users from suing, say, Facebook (or even Yelp) over another user’s post.

Now, please don’t read us wrong: you CAN sue individuals who post libelous statements, but not the social media platform on which the contested statement sits. (Section 230 applies to most social media sites. The rules, however, vary for blogs, news sites and other informational platforms that can legally be deemed “the publisher”).

Excerpt From Yelp Defamation Removal Lawsuit

“Yelp’s claimed interest in maintaining its site as it deems appropriate does not include the right to second-guess a final court judgment establishing that statements by a third party are defamatory and thus unprotected by the First Amendment.”

Why Doesn’t Yelp Want To Remove Defamatory Reviews?

Why is Yelp against weeding the site of defamatory posts? In its estimation, removing content is a free speech quagmire, so the company spares no expense in defending removal requests.

A spokesperson for the review aggregator explained:

“The ruling undermines the free speech and due process rights of consumer reviewers and the online platforms that host their content. In a single jumbled ruling, the court managed to contravene and contort longstanding precedent concerning the First Amendment, constitutional due process and Section 230 of the Communications Decency Act.”

Section 230 of the Communications Decency Act, or CDA, says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Court’s Reasoning: Asking Yelp To Remove Defamatory Review Doesn’t Have Anything To Do With Section 230 In This Case

According to the court, the removal order wasn’t legally damaging, and therefore fell outside the Section 230 sphere. In other words, since Yelp wouldn’t face imminent legal injury by deleting the defamatory post, the removal order doesn’t interfere with the CDA.

And on a technical note, according to the ruling, Yelp allegedly filed its protest motion too late.

Who Can I Talk To About My Yelp Defamation Issue?

Dealing with a defamatory Yelp review? We can help. Our team has assisted countless small- and medium-sized business owners overcome setbacks related to damaging Yelp reviews. Not every case requires a lawsuit. In many instances, we’ve been able to rectify the situation without filing a claim.

Contact us now. We’ll discuss your situation, (even vent about Yelp if you want), and then start formulating a plan — that’s both effective and budget conscious — to reverse the damage done by Yelp defamation.

Yes, Amazon Sues Fake Reviewers

Fake Review Law and Lawyer
The Legal Low Down On Fraudulent Feedback
Online Marketing Legal Reminder: Avoid using and writing paid reviews for Amazon.com. Why? You could be sued or banned!

Amazon is cracking down on phony feedback. Not only is it suing fake review services, but also suspending complicit seller accounts. In fact, just the other day, Amazon announced a lawsuit against a group of third-party sellers who used “sock puppet accounts” to post phony, positive reviews on their product pages.

Recent Action: Amazon Sued Phony Appraisal Services

A few weeks ago, Amazon sued five websites servicing the fake feedback “ecosystem.” An Amazon spokesperson explained:

“We will continue to pursue legal action against the root cause of reviews abuse — the sellers and manufacturers who create the demand for fraudulent reviews, as well as the ecosystem of individuals and organizations who supply fraudulent reviews.”

Ongoing Dragnet Against Fake Review Services

Amazon is obsessed with review integrity because customer posts fuel the e-commerce engine. To that end, last year, the company litigiously targeted parties that allegedly contributed to review corruption. Since then, the online retail giant has targeted about one-thousand phony feedback operations and forced many offline.

Is Amazon’s Review Integrity Initiative Working?

Are Amazon’s attempts to stomp out phony feedback working? Depends on how you assess the situation. Sure, more people now know about the company’s anti-fake review stance, prompting some marketers to stop using them. But, due to the pop-up-shop nature of review services, attempts at extermination have ultimately proven to be whack-a-mole level frustrating.

Need Help With An Amazon Review Problem?

User reviews are essential to the e-commerce success formula. For sellers, the quality and quantity of customer feedback can mean the difference between success and failure.

And unfortunately, unscrupulous marketers use disparaging reviews as a negative SEO tactic.

If you’ve been hit, and you’re ready to right a wrong, get in touch immediately. Our team of attorneys and techs has helped tons of people and businesses overcome various review issues. We can help you, too.

Don’t wait. The longer phony reviews fester, the more damage they can do.

Get in touch immediately to get back on a profitable path, free of fake review problems.

E-Commerce Law: Is It Legal To Pay For Online Reviews?

graphic of search bar juxtaposed against a line of e-commerce entrepreneurs to accompany a blog post answering the question is it legal to pay for online reviews

Is It Legal To Pay For Online Reviews?

You can make money with an e-commerce startup. Amazon, eBay, Etsy – even Walmart – have incredible platforms for outside sellers. Even better? The latest holiday spending figures proved anxiety about Internet shopping has gone the way of the dinosaur.

Bottom line: there is e-commerce cash-money to be made.

But (there’s always a “but”), as more folks dive into the product marketing pond, competition is stiffer than the Queen’s Guard.

So, how are some sellers standing out from the pack? They’re buying reviews! Which raises the question: Is it legal to buy online reviews?

Let’s discuss.

Online Review Truth #1: Fake Reviews Can Get You Sued

Reviews are a vital cog in the e-commerce model. Every platform — and entrepreneur — leverages user reviews to sell, sell, sell! Think about it: when you see a product without feedback, do you buy…or hop to a similar product with reviews?

So, what’s a newbie to do? Is it legal to buy online reviews?

Brass tacks: e-commerce platforms are serious about review integrity, and they actively work to stomp out phony reviews. Not only are feedback algorithms used to scrub “bad” posts, but some platforms, like Amazon, actually sue paid review services and reviewers.

Are you thinking, “No problem, I’ll just use a paid review service overseas?” Well, you may want to reevaluate, because foreign governments are also cracking down.

The risk of permanent account expulsion increases, exponentially, if you use fake review services. The danger is real; you may get burned.

Online Review Truth #2: Disclose Material Relationships

What’s the easiest way to avoid review-related suspension hassles? Disclose, disclose, disclose!

If Aunt Bessie buys your organic sea-kale weight-loss lollipops, genuinely loves them, and wants to shout it from a mountaintop, she can certainly spread the sea-kale gospel via online reviews. BUT,  don’t PAY Aunt Bessie to write a review. (Update: Offering consumers free products is exchange for an online review is now also frowned upon by Amazon. You can read about the rule change here.)

Now, will you be tossed in the clink if friends and family don’t divulge their relationship, to you, in an online review? Of course not. Let’s be real: how will anyone know if user “Liv4Cats54” on, say, Amazon, is your relative? But know that disclosing the relationship is, technically, part of FTC guidelines. So, if the commission catches you in its web — or you become entangled in a marketing-related lawsuit — the issue of non-disclosure COULD arise and work against you.

Online Review Truth #3: Don’t Ghost Write Tons of Reviews for Your Products

Is it legal to pay for online reviews? Not really. Is it legal to write your own reviews under aliases? Again, not really.

For e-commerce platforms, reviews are both a blessing and a curse; a blessing because they engage audiences in a meaningful, profitable way; a curse because an outbreak of corrupt reviews has the power to crush a site’s credibility – and ultimately tarnish the brand.

So,  what’s the lesson? Don’t write a ton of fake reviews for your products. Websites use algorithms that sniff and snuff out certain faux-views. Best to avoid them altogether.

Online Review Truth #4: Don’t Sabotage Competitors’ Listings

One night, you’re sitting at home, stewing in a cauldron of frustration. Your ecommerce gamble is not working out nearly as well as you planned! You need to attract more customers!

You forget to ask yourself, “Is it legal to pay for online reviews or post fake ones?” And then, in a moment of weakness, you screed-type some nasty feedback on a competitor’s listing. Your rationale? Well, if I trash competing products, more people are likely to find me!

This type of thinking is wrong thinking. Being a rogue, fake-review-dispensing troll will bring you 99 problems, and a possible FTC sanction IS one.

Fake reviews fall clearly into the “unfair and deceptive marketing” strike zone. And depending on the circumstances, you could be sued for trade libel — and lose.

Befriend An E-Commerce Lawyer

You’ve vested a lot in your e-commerce business. Protect your efforts by teaming up with an experienced attorney with a nuanced understanding of:

  • E-commerce account appeals;
  • The online private label market niche;
  • Online marketing regulations;
  • FTC and FDA guidelines; in addition to
  • General e-commerce law.

Our focus areas (FTC compliance, review defamation, online intellectual property, et cetera) line up perfectly with what Internet businesses need to grow and earn.

We’ve answered the question “Is it legal to pay for online reviews?” Interesting in learning more about Internet business law? Yes? Then head here.

Using Gag Clauses To Prevent Negative Online Reviews?

gag clauses to prevent negative online reviewsAre 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 public lie telling.

As previously discussed, some people try to 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). Or, in other words, it’s not kosher to use gag clauses to prevent negative online reviews — if said reviews are honest.

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

So, Then 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?

It stinks, but businesses must contend with client-induced reputational challenges all the time. In reality, the best thing to do is talk to a lawyer. (“Yeah, right – you’re just saying that because your law firm that 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? The same logic applies here.)

Gag Clause Case Study

FTC Sues Weight Loss Product Company Over Gag Clause

Recently, the Federal Trade Commission targeted a weight loss supplement company (for this article, 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 that some positive reviews were penned by people who were in some way compensated; 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 WL’s weight loss powder included the following phrase:

“Regardless of your personal experience with [WL], you will not disparage [WL] 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.

The 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” opted to include 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. For 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 can 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.

A Lawyer Can Fix It

The Federal Trade Commission estimates that “WLC” made about $20 million over the past five years. But if the company loses this case, that figure could evaporate because the FTC has the authority to fine…heavily. In some instances, the commission can even go after family members’ assets; the agency can even confiscate fur coats, boats, watches and  homes.

To avoid a run in with the Federal Trade Commission over unfair and deceptive marketing practices, work with an Internet marketing lawyer. The attorneys at Kelly Warner have been practicing online marketing law for a long time. 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 that affect 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. And adding egregious clauses to consumer contracts isn’t a wise move, as they’re becoming more and more ineffectual in the eyes of judges.

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

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. This wouldn’t be America if we could persuade politicians to calmly compromise on behalf of the greater good. That said, there is a higher than usual amount of support for this ballot 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 pursuance of legal 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, filed with the primary purpose of intimidation.

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 some defamation law questions answered? If yes, get in touch with Kelly Warner. We have a dedicated slander and libel practice and our attorneys excel 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/

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 and analysis of Yelp defamation case;
  • Explanation of what business owners need to prove to win a Yelp reputation case
  • Contact information for an online defamation attorney;

Another Yelp! (“Yelp”) defamation case has 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. Yelp Reviewer

The Basics

Plaintiff: Zeibak Auto Trading

Defendant: Zaki Ibrahim

Lawsuit Catalyst: Ibrahim had bought a used car for his wife at Zeibak Auto Trading. According to a report by ABC News affiliate in California, the car started giving him problems soon after he brought it home. So, according to Ibrahim, he returned to Zebiak’s to calmly discuss 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 details have made their way to the press about this suit, so it’s impossible to do a full – and fair – case 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 have been 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 cannot be deemed defamatory in a U.S. court of law. Plaintiffs almost always have to prove that their respective defendants made a false and unprivileged statement of fact.
  • Harm: Except for defamation per se cases (which you can read about here), nearly all defamation plaintiffs must prove that the contested statement(s) caused them either material or reputational harm.
  • Negligence: It’s not enough to prove that the defendants made a false statement of fact; to win, plaintiffs must also demonstrate that the defendant acted negligently by publishing, speaking or otherwise broadcasting the contested statement. (Note: The rules are a little different for celebrities and public figures; click here to find out why.)

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

In U.S. Defamation Cases, The Plaintiffs Have To Prove That The Defendants Lied

Unless the auto dealer can somehow prove that Mr. Ibrahim is not telling the truth, there is a chance this lawsuit 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 are 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.

Ripoff Report Updates Long-Standing Removal Policy

For five or so years, the business community has hotly debated Ripoff Report’s (ripoffreport.com) removal policy. The consumer review website has earned a reputation among some entrepreneurs for not removing any postings – even defamatory ones.

In the past, people who wanted to challenge claims were welcome to post rebuttals, but the site has always maintained a strict hands-off policy with regards to redacting posts.

Regardless of peoples’ opinions, Ripoff Report’s removal position was (and still is) solid and supported by numerous federal and state laws.

Did Ripoff Report Change Its Removal Policy?

Recently, Ripoff Report has made some significant changes to its redaction policies. Although the arbitration program and corporate advocacy programs still exist, Ripoff Report has made a change regarding the redaction of information found to be defamatory by a court.

According to a Ripoff Report executive, the consumer review website is still developing a new procedure in which it would voluntarily honor certain court orders, under very specific, limited, circumstances. The executive said the policy change was prompted by “respect for the courts and the judicial process.”

This is a significant change for Ripoff Report. We hope it proves helpful to small business owners.

Ripoff Report Will Not Honor All “Removal” Court Orders

Must Mention Defamation

At the very least, for Ripoff Report to even consider honoring a court order, it must mention which claims or statements are defamatory or libelous. Even then, it’s unlikely that site administrators will remove the whole report. According to Ripoff Report, the site will give court orders “special prominence” on the relevant pages, and will “redact the information specifically identified as false” under extreme enough circumstances.

We can confirm that Ripoff Report will, indeed, in very limited circumstances, redact content. In fact, we recently obtained a favorable result for a client who was dealing with a defamatory post. But since every case is different, you shouldn’t assume the same results.

In fact, we recently obtained a favorable result for a client who was dealing with a defamatory post.

Mandatory Court

Ripoff Report’s new removal policy only applies in cases where both sides have presented arguments in court – and then the court found against the author of the contested posting. Default judgments will probably not be accepted. Still, the change is a step forward for people and businesses that have been defamed on ripoffreport.com.

Speak To A Ripoff Report Removal Lawyer

Is a false posting on Ripoff Report causing your business hardship? The attorneys at Kelly Warner Law have worked with hundreds of entrepreneurs and businesses in mitigating the crushing effects of defamatory online consumer reviews. If you’ve been “hit,” contact our ripoffreport.com removal attorneys; they’ll be able to review the specifics of your situation and, depending on the circumstances, may be able to guide you towards an effective outcome.

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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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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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