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.

Opinions From An Internet Lawyer: Gawker’s Conundrum

gawker defamation

You’ve heard by now: Gawker is caught in a professional storm.

Let’s take a moment to look at one aspect of the conundrum — a defamation lawsuit filed by the guy who claims to have invented e-mail. Will this recent Gawker defamation case add to the website’s woes? Or is it something else?

Fran Drescher’s husband, Shiva Ayyadurai, is joining the ranks of Gawker litigants. His spat? Ayyadurai insists he invented e-mail; Gawker says he didn’t.

Who’s telling the truth? Who knows; that’s a question for the courts. What makes the case intriguing, right now, is the timing. Ayyadurai’s suit comes on the heels of Gawker’s mega-million loss to Hulk Hogan, which raises the question: Did the Hogan verdict topple Gawker’s litigation levies? Is the website about to suffer some sort of content karma course correction? (Update: Apparently, yes; Gawker filed for bankruptcy shortly after this article was written.)

He Said; Gawker Said: A Defamation Case Study

In the not too distant past, the Washington Post profiled Ayyadurai. According to the article, 14-year-old V. A. Shiva Ayyadurai invented e-mail while Doogie-Howsering his way through a New Jersey university.

Interestingly, the WAPO piece featured a disclaimer:

“A number of readers have accurately pointed out that electronic messaging predates V. A. Shiva Ayyadurai’s work in 1978. However, Ayyadurai holds the copyright to the computer program called “email,” establishing him as the creator of the “computer program for [an] electronic mail system” with that name, according to the U.S. Copyright Office.”

Well, good ole’ Gawker published an unsolicited rebuttal, questioning the truthiness of Ayyadurai’s accounts. Long story shortened, Ayyadurai decided to sue Gawker for defamation; he’s asking for $35 million.

From the filing:

Defendants’ false and defamatory statements have caused substantial damage to Dr. Ayyadurai’s personal and professional reputation and career. As a result of Defendants’ defamation, Dr. Ayyadurai has been publicly humiliated, lost business contracts and received a slew of criticism relating to Defendants’ false accusations and statements.

Gawker Doesn’t Seem Worried, But Should It Be?

Gawker doesn’t appear worried about Ayyadurai’s case. (The bankruptcy is probably paramount right about now.) A site spokesperson explained:

 “These claims to have invented email have been repeatedly debunked by the Smithsonian Institute, Gizmodo, the Washington Post and others.”

Judging by the above statement, the website will likely argue “truth” and “fair opinion” — a straightforward legal tact for this scenario.

Will it work? Gawker may have a decent shot at escaping this particular legal noose.

His Whole Story

Ayyadurai’s beef goes much deeper than  this Gawker defamation case. MUCH deeper.

According to reports, Ayyadurai allegedly believes that an international conspiracy, possibly masterminded by tech incubator CSIR, has kept his name from gracing history’s pages.

Not only that, but he supposedly insists his falling out with CSIR involved a Family Von Trapp-esque getaway; except in his version, instead of the Swiss Alps, Ayyadurai escaped under the cover of a hot Indian night. Head over here for the whole story.

The Gawker Defamation War

But, as we mentioned earlier, the filing date is noteworthy. Ayyadurai’s case comes in the wake of Gawker’s high-profile loss to Hulk Hogan and revelations that billionaire Peter Thiel (longtime Gawker rival and apparent student of Vary’s School of Patient Revenge) has been a one-man crowdsourcing Godfather for people in hot legal pursuit of Gawker.

(NOTE: There is no indication, and we are not implying, that  Thiel has anything to do with Ayyadurai’s case.)

Our Opinion? Cockiness Can Land You In Legal Trouble.

Gawker brass may have been a little too cocky during the Hogan trial — and perhaps a bit too comfortable in their irreverence, overall. Which raises the question: has the media outlet previously crossed the defamation or privacy line without getting caught? And from a PR perspective, is the public simply sick of Gawker? Perhaps.

Footnote: Sadly, the gentlemen commonly credited for creating e-mail in 1971, Ray Tomlinson, died earlier this year of a heart attack.

Kelly Warner Internet Law

Kelly Warner is a legal practice that focuses on Internet defamation law. To learn more about our top-rated — yet down-to-earth — firm and team, head here.

Article Sources

Harris, D. L. (2016, May 10). Cambridge man who claims he invented email sues Gawker for $35M. Retrieved June 28, 2016, from http://www.bizjournals.com/boston/news/2016/05/10/cambridge-man-who-claims-he-invented-email-sues.html

Defamation Hurts: 10 Intriguing Facts & Thoughts On The Psychologically Devastating Effects of Slander and Libel

psychological effects of defamation

Self-described “expert witness and litigation consultant” Nicholas Carroll published a think-piece on the darker side of defamation.  Carroll’s stance, in a sound byte? Slander and libel ruins lives. OK, maybe that’s a bit of an exaggeration, but Carroll does appear to advocate for defamation reform and floats the idea of “sane legislation” that better compensates wronged parties.So, does he have a point? Do we need to rethink our defamation laws?

The Most Defendant-Friendly Defamation Laws In The World

The United States has the most defendant-friendly slander and libel laws in the world. And yes, austere rules means legitimately wronged parties can sometimes find themselves without legal recourse — not to mention a lifetime’s worth of unwarranted social suspicion.

This raises several questions:

  1. Are U.S. libel laws an example of the greater good out-weighing a few unfortunate situations where the bad guys win?
  2. Are such situations an unavoidable side effect of valuing free speech?
  3. Or, do we need to consider the compound effects of digital communications and change online libel laws accordingly?

Here’s the thing: free speech is practically sacrosanct; tweaking U.S. defamation standards is a slippery, Everest-sized, First Amendment slope. Our slander and libel laws rightly cling to caution’s side, in favor of the defendant.

But as a result, winning defamation lawsuits in the United States isn’t easy; plaintiffs need rock-solid — no, titanium-solid — cases.

The potential upside of filing a defamation claim? Damage awards can be gigantic — especially in recent years. As Carroll explains, jury awards are rising, not only to compensate for financial setbacks (lost wages or customers on account of the defamation), but also for emotional distress.

The potential upside of filing a defamation claim? Damage awards can be gigantic — especially in recent years.

10 Conversation Starters About Defamation

depression and defamation
Defamation can cause serious depression — and you may be compensated for it.

Regardless of where you stand on the status of our country’s slander laws, Carroll raises some arguments worth considering (even if you don’t agree with his position).

  1. “Loose lips or poison pens had pushed them over the brink to abnormal behavior.” That’s how Carroll described some defamation victims with whom he has corresponded. It speaks to the potentially devastating nature of slander and libel. Lately, judges and juries are recognizing just how detrimental defamation can be — and they’re starting to hand down large damage awards.
  2. “Dealing with defamation rationally is the exception because defamation is rarely rational.” In this quote, Carroll points out the fundamental paradox of slander and libel situations, for plaintiffs. He also describes defamers as “not only …clinical psychopaths and semi-functional sociopaths, but apparently normal people who have too much time on their hands, best summed up by philosopher Eric Hoffer, ‘People mind other people’s affairs when their own affairs are not worth minding.’”
  3. Carroll chose a popular trope (of uncertain — but exalted — origins) to explain the viral nature of Internet defamation, cautioning, “A lie can be halfway around the world before the truth can put on its pants.”
  4. Studies suggest that only 5% of defamation victims can handle the emotional fallout of slander and libel, rationally.
  5. The so-called Streisand effect stops people, who’ve legitimately been defamed, from taking legal action.
  6. Carroll identified homeowners associations, K-12 schools, churches and the small business world as hotbeds of defamation.
  7. Due to more training, Fortune 500 companies are more likely to “damn by faint praise” and less likely to find themselves in the middle of a defamation battle — with either employees or competitors.
  8. Suicide is a very real consequence of defamation.
  9. Carroll controversially argues that the Digital Millennium Copyright Act “gives far too much license to blogs and social media — without the responsibilities imposed on mainstream media.”
  10. Carroll contends that false accusations are more traumatic than actual bad deeds. He explains: “To compare reality and defamation, which one is more traumatic . . . to accidentally run over your neighbor’s dog and kill it, or be falsely accused of running over your neighbor’s dog? After 14 years of speaking to defamation victims, that’s a no-brainer: being falsely accused is far more traumatic. Killing a neighbor’s pet will distress any normal person, and they will occasionally think about it even years later. On the other hand, the normal human will immediately call the dog’s owner, or take the dog to a pet clinic themselves, and history will read ‘. . . it really broke them up . . . they drove the dog to a clinic, but it was too late.’ Being falsely accused of it can become a running psychic sore, a daily source of stress every time you get a cold look from a neighbor, or the ‘Oh, you’re the one who . . .’ look from someone you just met. When the story is fictitious, there’s no record of you driving the dog to the hospital, because the accident never happened. And where there is no crime, no alibi is possible.”
contact a defamation lawyer
Let a defamation lawyer solve your slander and libel problems.

Connect With A Defamation Lawyer

Kelly Warner runs a successful Internet defamation legal practice.

Lawsuits aren’t always necessary to effectively combat an online reputation challenge. Our attorneys are top-rated, exceptionally friendly, discreet and most importantly, know all the tips and tricks to remedy defamation situations quickly. Get in touch today to explore options; let’s start restoring your good name.

Article Sources

Carroll, N. (2016, March 22). Defamation of Character: The Road to Emotional Meltdown. Retrieved May 04, 2016, from http://www.huffingtonpost.com/nicholas-carroll/defamation-of-character-t_b_9520124.html

Discounts For Honest Amazon Reviews Is Fine; Paying For Bogus Reviews Isn’t

Amazon Reviews Legalities
UPDATE: Amazon recently changed its policy; sellers can no longer offer discounts in exchange for reviews (in most circumstances). We decided to keep this article up for archival purposes.

Team members from BestReviews analyzed 360,000 consumer posts on Amazon.com. Their conclusion? Amazon is flooded with 4- and 5-star reviews, which raised the question: “Can Amazon reviews be trusted?” The answer: Yes, but be aware.

The team observed that:

  • 66.3% of Amazon user ratings are 4- or 5-stars;
  • A “verified purchase” doesn’t mean “full price purchase;”
  • 96% of people who got a free or deeply discounted product gave 4- or 5-star assessments, even though they weren’t required to post high-ratings, just honest ratings.

Can You Trust Amazon Reviews?

So, what does this all mean? Does it illustrate a flaw in Amazon’s review system? Are Amazon reviews worthless?

No, it’s not that drastic.

What the results DO prove is that recipients of free and discounted goods are more likely to give a positive rating than people who pay full price. Humans emotionally connect to money because it’s associated with survival. As such, the more dollars we part with for a product, the more likely we’ll be critical of its shortcomings.
What the results DO prove is that recipients of free and discounted goods are more likely to give a positive rating than people who pay full price.

How Algorithms Can Affect
Amazon Reviews

To balance the review field, Amazon’s rating algorithm gives more weight to reviews written by people who pay full price than those written by launch reviewers who likely got a free product.

Amazon Doesn’t Care If You Give Away Free Products In Exchange For Honest Reviews

(This policy has since changed.)

You’ve probably seen the words “honest review” in an Amazon post.  That usually means the author got the product for free or at a deep discount.

Yes, it’s against Amazon rules to pay for fake reviews outright. It’s fine, however, to give away free products in exchange for honest reviews.

An Amazon spokesperson explained that the company “does not allow compensation or incentive for reviews” except “when sellers provide a [free or discounted] copy of the product, in advance, in exchange for an unbiased review.”

Yes, it’s against Amazon rules to pay for fake reviews outright. It’s fine, however, to give away free products in exchange for honest reviews.

Amazon Explains Why It Loves User Reviews

When communicating with the BestReviews team, Amazon expressed its love of consumer feedback, explaining:

“We believe that all reviews, positive and negative, help customers make informed purchasing decisions. The fact that customers received the product at a deep discount or for free does not preclude them from having an opinion on the product that can be helpful to other customers. Customers indicate that the content of many of these reviews are incredibly helpful. These reviews often provide additional factual information, videos and photos of the actual product in use, and the reviewers often answer follow-up questions.”

Got Review Issues? We Can Help.

We’re review physicians who revive businesses hobbled by damaging feedback. How do we do it? Well, strategies are detail specific, and everyone’s case is different. Let’s talk about your situation and develop a plan that will get you back on track.

Article Sources

Agarwal, Kriti, and Rafe Needleman. “Can You Trust Reviews on Amazon?” Can You Trust Reviews on Amazon? 14 Mar. 2016. Web. 25 Apr. 2016. <https://www.yahoo.com/tech/can-you-trust-reviews-on-amazon-174800847.html>.

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.

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/

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

Nightmare, right? One that Chantay Sewell says she endured at the hands of her former paramour.

In response to the incident, Sewell had filed a lawsuit, but the court dismissed the claim on account of statute of limitation parameters. Recently, however, an appeals panel reversed the lower court’s decision, and Sewell can now move forward with her online defamation case.

The lawsuit is significant because it could further define the Computer Fraud and Abuse Act’s scope. 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 Chantay Sewell suddenly couldn’t access her email and social media accounts. The logins just weren’t working. Frustrated, Sewell 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 Sewell was locked out.

At first, Sewell 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 Sewell’s former paramour, who allegedly confessed.

Lower Court Tossed Facebook Law Case

A lower-court initially tossed the case, claiming Sewell waited too long to bring the 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, Sewell 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 Sewell’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.

And since Sewell 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 Sewell 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? Don’t fool yourself into thinking that an online alias is an invisibility cloak. All that’s required to denude an anonymous defamer is a court order compelling an ISP or web host 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?

Here’s a question: When Google is faced with a court order compelling the removal of a defamatory webpage 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

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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.

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’ tweets 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. If you’ve landed on this page in search of an international online defamation lawyer, click here.

The Tweets That Launched an Australian Defamation Lawsuit

In May of last year, Fairfax Media (an Aussie media 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 ultimately decided:

“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.”

After the ruling, 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: A statement isn’t defamatory if it’s true. Claimants must prove that the defendants made false declarations of fact.

Harm: It’s not enough to demonstrate that a statement was false. 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 a case, 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

Slander and libel laws in the United States and Australia are a lot different than some people may think. Like other British Commonwealth nations, Australian defamation laws are more plaintiff-friendly than those in the United States,  which is why some stateside clients choose to 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.

Pick up the phone – or Skype – to begin the conversation.

 

Source Article

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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