Reminder: The FTC Punishes Influencers That Don’t Disclose

social media influencer rulesHi there, social media influencer: noteworthy things are happenings in the e-commerce world! Make note: 1) the FTC put celebrity endorsers on notice, and 2) Amazon is rolling out a new social media “influencer” program. In this post, we’ll summarize the events and then review a few social media marketing legal “don’ts.”

FTC to Social Media Celebrities: We’re Watching You

After a consumer watch group applied some pressure, the Federal Trade Commission sent letters to 90 celebrity social media influencers. To paraphrase the message: Stop being tricky with disclosures. Truth-in-advertising rules apply! It’s against regulations to disguise that you’re getting cash-money to hawk products.

According to FTC regulations, any person with a “material connection” to a given product must “clearly and conspicuously disclose relationships to brands” when promoting.

Don’t Try To Bury or Hide Disclosures

Hiding disclosures is also a no-no. Compliance requires that all declarations be made before the “more” button, to accommodate diminished screen real estate on cell phones.

The FTC’s action marks the first time the commission directly reached out, with unsolicited guidance, to celebrity endorsers. So far, no measures have been taken. However, if any of the letter recipients continue to flout guidelines, they’ll most likely be slapped with a gigantic fine.

When asked why it chose to focus on this issue, a spokesperson from the advocacy group explained:

“Instagram has become a Wild West of disguised advertising, targeting young people and especially young women. That’s not going to change unless the FTC makes clear that it aims to enforce the core principles of fair advertising law.”

Amazon’s Influencer Program: Do You Know The Rules?

In Amazon’s manifest destiny quest to claim all things retail, as of late, the company has been concentrating on fashion. And, like most style brands, the e-commerce behemoth is enlisting social media influencers to market and promote.

Still in its beta phase, the program is “invitation only” — and according to Amazon, participants don’t have a say in product selection.

So, who is Amazon asking to join this Amazon influencer promotional hive? According to reports, the company considered “various factors, including but not limited to number of followers on various social media platforms, engagement on posts, quality of content and level of relevancy for Amazon.com.”  Amazon was also sure to clarify that “[t]here is no set cut-off and influencers across all tiers and categories are represented in the program.”

Social Media Marketing Crib Sheet

So, what legal issues must Amazon influencers consider when promoting products? What disclosure tactics don’t pass FTC muster? Here’s a quick list.

  • Don’t bury disclosures in a long string of hashtags. The Federal Trade Commission considers it deceptive.
  • Don’t use #sp (for sponsored) or #partner as the only disclosures. They’re not clear enough.
  • Don’t use #Thanks [Brand] as a disclosure. The phrase does not meet FTC truth-in-advertising standards.

Click here for a more in-depth list of social media marketing dos-and-don’ts.

Contact An E-Commerce Business Consultant

If you’re an Amazon influencer or social media promoter with questions for an attorney who handles online marketing issues, get in touch. Our team has helped hundreds of online business entrepreneurs with everything from affiliate marketing contracts to FTC investigations. Our rates? Exceptionally reasonable. Our knowledge-bank? Invaluable. Let’s chat; we have the answers and know-how you need.

Use Promotional Hashtags In Tweets, Posts & ‘Grams

promotional hashtags social media legalitiesThe Federal Trade Commission slapped retailer Lord & Taylor for flouting marketing guidelines. Remember folks: use promotional hashtags.

The Social Media Campaign That Got Lord & Taylor in Trouble

Product: A paisley dress from Lord & Taylor’s Design Lab collection.

Marketing Tactic #1: Shelled out money — and a free dress — to 50 fashion influencers in exchange for posting a picture of themselves wearing the same paisley dress on the same day.

Marketing Tactic #2: Ran a paid (“native advertising”) article in Nylon magazine.

Problem With Marketing Tactic #1: Most of the participants neglected to include promotional hashtags (i.e., #ad, #sponsored, #paid) with their posts. In the end, the lack of proper disclosures amounted to unfair and deceptive marketing, in the eyes of the FTC.

Problem With Marketing Tactic #2: According to reports, the Nylon article wasn’t sufficiently marked as paid content; nor was it presented as part of the social media blitz.

Punishment: The FTC publicly forbade Lord & Taylor from “misrepresenting that paid commercial advertisements [are] from an independent or objective source.” The consumer agency also announced plans to monitor the brand’s marketing efforts temporarily. Why no fine? Well, this is the first high-profile cases of its type; it’s the warning shot.

Consider Yourself Cautioned: From now on, the commission will likely dole out severe fines for not tagging social media marketing posts.

FTC’s Warning: “The use of influencers right now is huge for brands. We are just emphasizing through this case and other investigations that we’ve had that when companies are paying consumers to help promote their brands, that that needs to be made clear to consumers; that advertising should be identifiable as advertising.”

How Did The Social Media Campaign Work Out For Lord & Taylor?

How did the promotional event work out for Lord & Taylor? The paisley dress flew off digital shelves. Sold out. Which raises the question: Are FTC fines sufficient deterrents? Or, do the potential profit gains outweigh the risks associated with ignoring marketing regulations?

For its part, Lord & Taylor has assumed a conciliatory stance. Company spokeswoman Molly Morse rationalized to USA Today:

“A year ago, when it came to our attention that there were potential issues with how the influencers posted about a dress in this campaign, we took immediate action with the social media agencies that were supporting us on it to ensure that clear disclosures were made.”

Got Questions About Promotional Hashtags? Need Online Marketing Legal Help?

Marketing rules and regulations are piling up. Are you sure you’re following all relevant laws, regulations, and industry guidelines? You could be slapped with a hefty fine if caught operating outside regulatory bounds.

Our firm helps online marketing and e-commerce entrepreneurs — in addition to startups and established businesses — with Internet law matters — big and small, routine or litigatory.

We’ve reinstated suspended accounts; registered trademarks, copyrights, and patents on behalf of clients; set-up profit-friendly, asset-protecting businesses for people new to the private label niche; performed FTC, FDA, CPSC marketing compliance audits; gotten defamatory consumer reviews removed from the Web; helped sellers shake counterfeiters and listing hijackers.

Give us a call today. Let’s fix your problem.

Article Sources

Malcolm, H. (2016, March 16). Lord & Taylor settles FTC charges over paid Instagram posts. Retrieved April 18, 2016, from http://www.usatoday.com/story/money/2016/03/15/lord–taylor-settles-ftc-charges-over-paid-instagram-posts/81801972/

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

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

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

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

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

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

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

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

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

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

Lower Court Tossed Facebook Law Case

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

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

Judges Starting To Consider Digital Culture In Social Media Rulings

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

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

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

Potential Consequences of Hacking, Defaming or Otherwise Misappropriating

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

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

All because of a little churlish social media tomfoolery.

Even If You Don’t Hack,  Legal Consequences Abound

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

An Online Alias May Not Protect You From Being Found

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

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

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

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

Source

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

Australian Defamation Case Study: The Hockey Incident

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

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

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

The Tweets That Launched an Australian Defamation Lawsuit

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

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

In response, Hockey filed an online defamation lawsuit.

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

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

A Fairfax Media spokesperson explained to the press:

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

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

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

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

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

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

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

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

Differences Between U.S. and Australian Defamation Law

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

Speak With An International Online Defamation Attorney

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

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Social Media Marketing Law: #Ad and #Sponsor

social media marketing law

What is the most important social media marketing law? If you pay people to promote products or services on social media, do they have to label their posts? What if you don’t give them money, but instead discounts or other in-kind compensations?

Below, we’ll answer the above social media marketing law questions, and review a few other relevant legalities.

Dress Sold Out, But No #ad Disclosure

In 2015, Lord & Taylor launched a wildly successful marketing campaign. A testament to the power of social media promotions, the retailer paid fifty fashionistas to tweet, ‘gram, and otherwise social-media themselves in the same dress.

The garment sold out in 24 hours.

The problem? Most of the participants failed to use an #ad or #sponsor tag. The lack of disclosure flouted FTC guidelines.

Are #Ad or #Sponsor Disclosures A Must?

What are the rules? Is it essential to use an #ad or #sponsor tag when promoting something on social media, for pay, discount, or a mutual back-scratch?

Unfortunately, the rules aren’t cut and dry. In fact, they’re murkier than a Florida swamp – a fact that causes severe headaches for fashion marketers. As Danielle Wiley of the Sway Group explained, “When brands see a successful campaign like this without the ugly little ‘ad’ disclosure…they want the same thing for themselves.”

Social Media Marketing Law: The Guidelines

According to the Federal Trade Commission (the nation’s official “consumer watchdog”), if a party is compensated, in any way, for a social media promotion, that fact should be disclosed. The common way of doing so is adding either an “ad” or “sponsor” hashtag to the post, tweet, or ‘gram.

The rub? The FTC’s recommendations are only guidelines, which means the rules are, shall we say, fluid. What does that mean, practically speaking?

  • It’s a crap shoot whether or not you’ll be sanctioned for NOT using #ad or #sponsor disclosures on paid social media promotions.
  • Though there is no hard-and-fast federal law regarding the use of online marketing disclosures, there are enforceable rules regarding “unfair and deceptive marketing,” which the FTC can use to severely fine violators.

See what we mean by murky? The lack of formal regulations – coupled with the existence of quasi-governmental guidelines – results in marketplace confusion. Some companies and marketers are sanctioned and fined for disregarding promotional guidelines; some entities are caught, but only get a slap on the wrist. And, still, others get away scot-free.

Don’t Blame The Marketer

The current state of murky online promotional guidelines is causing consternation for many marketing firms. Some have even been fired for following them!

But here’s the rub: if marketers continue to shirk guidelines, a draconian law may take its place – one that will have businesses begging for the simple #ad or #sponsor hashtag requirement.

Speak With A Digital Marketing Lawyer

Kelly / Warner Law has an active – and successful – online marketing division. We help hundreds of startups and businesses with their Internet and mobile promotions. To read more about online marketing legalities, head here. To speak with one of our experienced marketing lawyers, get in touch.

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Kelly / Warner handles social media marketing law issues. We represent startups and businesses from a variety of industries.

Social Media’s Stand Against Revenge Porn

Picture of Blackboard that says new rules to accompany a blog post about Twitter stance on revenge porn

Twitter is taking a stand against “revenge porn.” Perhaps the “Fappening” drove them to change. Or maybe the social media platform is falling in line with legislators across the country who are eagerly passing laws the punish people who engage in the act.

From Denial to Action

Twitter’s stand against revenge porn comes after a leaked internal correspondence by CEO Dick Costolo made its way to the Internet. In it, Costolo admitted:

“we [Twitter] suck at dealing with abuse and trolls on the platform and we’ve sucked at it for years.”

The Exact Twitter Revenge Porn Rule Change

So, how, exactly, did Twitter address the revenge porn problem on its platform? The site amended the “private information” and “abusive behavior” sections of its terms of service policy. Now, according to the TOS:

You may not post intimate photos or videos that were taken or distributed without the subject’s consent.

Yeah, But, Is Twitter’s New Anti-Revenge Porn Stance Really Going To Help?

If you’re a skeptic, you may be thinking, “So what. This is all just lip service. Nothing will change.” And you’re not alone. Many people think Twitter’s announcement was simply a PR effort that won’t result in change, because “banning” revenge porn on a social media platform would ultimately result in an everlasting game of whack-a-mole.

Facebook Is Also Making Noise About Indecency Issues

Twitter isn’t the only social media platform publicly addressing the revenge porn issue in recent months. Facebook has also made changes to its use policy to read:

“You may not post intimate photos or videos that were taken or distributed without the subject’s consent.”

The ‘threats and abuse’ section of Facebook’s terms now also read:

“In addition, users may not post intimate photos or videos that were taken or distributed with the subject’s consent.”

Further Reading & Attorney Contact Information

To find out if your state has a specific revenge porn law, click here.

To set up a consultation with a lawyer that handles Internet law issues, click here.

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Facebook Defamation Law: Boycott Pages

Cartoon of disgruntled people to accompany blog post about Facebook boycott law
Facebook boycott pages have the power to crush, which raises the question: What can business owners do to combat coordinated social media attacks?

Case Study: Consumers Create A “Boycott” Page on Facebook

According to company president John Dowd, Sundance Vacations was in business for twenty-three years – largely without issue. But in its 24th year, all bytes broke loose. A disgruntled client created a “Boycott Sundance Vacations” Facebook page.

Needless to say, Sundance suffered a Titanic decline. According to Dowd, the Facebook boycott page was “the single worse thing that’s happened to [Sundance].”

Due to plummeting sales, precipitated by the disparaging profile, the company had to lay off over a hundred employees.

Sundance sued Facebook for defamation, but lost. The social media platform won by arguing immunity under Section 230 of the CDA.

Can Business Owners Demand That Detractors Take Down Facebook Boycott Pages? Can The Page Creators Be Sued For Defamation?

Sundance’s failed Facebook defamation suit should not be a deterrent to businesses wanting to pursue Internet defamation lawsuits. It can be done; it has been done. But to increase the likelihood of success, enlist an attorney well-versed in online libel litigation.

Someone Created A Facebook Boycott Page About Your Business? Follow These 3 Steps.

What should you do if disgruntled customers, patients, or clients create Facebook boycott pages about your business?

First: Stay calm. Don’t snap. Don’t start railing against detractors. It’ll just make you look:

  1. Crazy,
  2. Unaccommodating, or
  3. Overly defensive (and therefore suspect).

Second: Private message the Facebook boycott page and try to resolve the issue amicably. Be accommodating, not imperious. Respectfully prostrate yourself before their complaint. Ask what you can do to make things better. Don’t compromise your values, but be conciliatory — if possible.

Third: If your Facebook boycott detractors still refuse to negotiate a solution, then it’s time for legal action.

Elements of Defamation Under U.S. Law

Before you contact a lawyer, think about the validity of your case. Be honest with yourself. Are the Facebookers telling the truth? Because if they are, their actions may not amount to defamation.

Libel is more than just negative, disparaging talk. For a statement to be legally defamatory, the plaintiff must prove that:

  1. The defendant published or spoke the contentious statement(s);
  2. The contentious statement(s) were false, unprivileged, and about the plaintiff;
  3. The plaintiff suffered either material or reputational harm as a result of the defendant’s statement;
  4. The defendant acted either negligently or “with actual malice.”

You will NOT win a defamation case solely because someone posted a negative quip about your business. Negligence, harm, and falsity must also be proven.

We Deal With Facebook Boycott Defamation Conflicts

Kelly / Warner was one of the first law firms to focus on Internet defamation. Our team has successfully guided hundreds of businesses and individuals through all types of online business litigation. An AV-rated law firm, Kelly / Warner enjoys a high success rate.

Call or send a message today to begin a conversation about your Facebook boycott challenge.

Can You Trust Yelp Reviews?

Picture of blackboard featuring the word Trust to accompany blog post about lawsuit asking can you trust yelp reviews
Can you trust yelp reviews? Or is the site a pay-for-play cauldron of post manipulation?  These are the questions people are considering after the 9th Circuit Court of Appeals published its opinion in Levitt v. Yelp, Inc.

A case that challenged Yelp’s advertising sales practices, the main question in Levitt was whether or not “gripe sites” can manipulate review algorithms as an advertising sales tool.

Ultimately, the judges ruled that review manipulation, as presented in the suit, is a perfectly legal example of “hard bargaining.” The bench also reasoned that consumer review websites aren’t obligated to display positive posts.

Which raises the question: Can you trust Yelp reviews?

Below, we’ll review the case and explain the judges’ decision in favor of consumer review websites.

First, A Little About The Yelp Review System

Honest users post honest opinions about businesses and services. Then, Yelp displays every review – good or bad. That’s how Yelp works, right?

Not quite.

There’s a little bit more (or less, depending on how you look at it) to Yelp’s functionality than what meets the eye.

How Do Yelp Reviews Get Removed?

Reviewer Removes

The best way to get a negative review removed from Yelp is by convincing the reviewer to delete it. Oftentimes, people post scathing rants in the heat of the moment. If you let a few days pass, and then approach your detractor politely, common ground can sometimes be found. Identify the problem, and, if reasonable, do everything you can to fix it!

Yelp Removes

Sometimes Yelp removes user reviews that don’t adhere to the site’s terms of service guidelines.

Yelp Filtering Algorithm Removes

All reviews on Yelp’s platform are subject to a filtering algorithm. The system doesn’t permanently delete reviews, but it does “hide” them.

Yelp Review Filtering System Explained

What is the Yelp filtering algorithm? An automated system that controls how reviews appear on the site, Yelp’s formula affects all posts — good and bad. Intriguingly, the algorithm is partially based on a user’s “site clout” (i.e., the more reviews someone posts, the more clout they have).

Yelp executives insist the system is 100% automated. But a band of small business owners believe  it’s something more insidious; they think that Yelp manually tweaks the filtering algorithm to negatively target businesses that opt out of Yelp advertising.

Yelp’s Advertising Opportunities

A major component of Levitt v. Yelp is promotion — specifically, whether or not Yelp penalizes businesses for opting out of advertising.

At the time of this writing, Yelp offers advertising costing between $300 and $1200. Benefits include:

  • Guaranteed premium placement;
  • Ability to pick a positive review that appears front-and-center on your profile page; and
  • Ability to add photos to the page.

What The Class Argued Against Yelp: User Review Manipulation & Advertising Extortion

A group of small business professionals joined forces to legally challenge alleged advertising extortion and unfair business competition by Yelp. Class members argued violations of the Hobbs Act and California’s unfair competition law.

What were the main gripes? The class felt that Yelp:

  • Extorted advertising money by manipulating profile reviews;
  • Purposefully downgraded ratings if a business owner refused to purchase Yelp advertising; and
  • Authored fake, negative reviews as a way to get business owners to purchase Yelp advertising.

In the claim, the class members also argued the ethics of Yelp employee reviewers.

Small Business Owners’ Complaints Regarding “Yelp’s Review Manipulation”

Levitt v. Yelp detailed the experiences of several business owners with Yelp profiles. Below are summaries of those stories.

Boris Levitt: Good Yelp Reviews Disappeared; His Rating Dropped a Full “Star”

Boris Levitt long enjoyed a 4.5 Yelp star-rating. Then, one day, out of the blue, several good reviews vanished from his page.

Perplexed, he called Yelp to inquire about the good-review exodus. According to Levitt, a Yelp employee blamed Yelp’s filtering algorithm (described above), and explained that Boris was out of luck since the filtering system is anonymous and automated.

Two months after the initial call, a Yelp advertising sales representative contacted Boris Levitt. After the pitch, Boris said he was happy with his organic ratings on the site, and then opted against a Yelp advertising package. According to Boris, two days later, his rating dropped a whole star, and several more 5-star reviews disappeared from his page.

Cats & Dogs: After Yelp Removed A Bad Review, Another One Appeared In Its Place

One day, Cats & Dogs Animal Hospital called and asked Yelp to remove an old, negative review from its page. Yelp complied with Cats & Dogs’ request because the request squared with guidelines.

A few days later, another bad review appeared on Cats & Dogs’ Yelp page – a review suspiciously similar to the one Yelp had removed.

Soon after the second criticism posted, Cats & Dogs began to field calls from Yelp’s advertising department. And according to the animal hospital, the sales rep “promised to manipulate [Cats & Dogs’] listing page in exchange for … purchasing advertising.” Cats & Dogs contends that the Yelp representative promised to “hide negative reviews or place them lower.”

In the lawsuit, Cats & Dogs also explained that the original bad review, which Yelp removed, reappeared after it opted out of advertising.

Mercurio: Yelp Reviews Didn’t Sync With Customer Records

Named claimant Mercurio’s tale was similar to Boris Levitt’s. But unlike Levitt, Mercurio accused Yelp of being the wizard behind several of his bad reviews.

Mercurio insists that several unflattering rants on his Yelp page don’t sync with customer records. Mercurio also swears that a Yelp representative told him, over the phone, that advertising with Yelp helps ratings.

Interestingly – and perhaps detrimentally — Mercurio never named the customer service rep with whom he spoke.

Dr. Tracey Chan: Felt Pressured To Buy Yelp Advertising To Keep Her Rating

According to dentist Tracey Chan, during a sales pitch, a Yelp representative claimed to wield control over reviews and promised to “hide or bury” bad ones in exchange for an advertising purchase.

Initially, Chan declined. A few days later, nine 5-star reviews disappeared from her Yelp profile. Chan’s overall standing plunged from 5- to 3-stars. According to the dentist, when she called to ask about the sharp and sudden decline, a Yelp employee offered “help” if she invested in site advertising.

Chan said she “feared” Yelp would continue to manipulate her business’ page for the worse if she didn’t pony up for Yelp advertising.

Sponsors and Nonsponsors

The class members described themselves as “nonsponsors” and “sponsors.” Nonsponsors were the business operators who opted not to buy Yelp advertising. Sponsors were the people who – at some point – enrolled in a Yelp advertising program.

Why the Court Sided With Yelp in the Online Consumer Review Class Action Lawsuit

Cats & Dogs: Didn’t Protest The Authenticity Of The First Bad Review

In the claim, Cats & Dogs Animal Hospital cited two reviews – one that Yelp removed at Cats & Dogs’ request, and the second, which appeared soon after Yelp “erased” the first one. In the lawsuit, Cats & Dogs argued that the second review was fake and most likely authored by Yelp. Importantly, in the claim, Cats & Dogs did not dispute the authenticity of the first review.

The Levitt v. Yelp panel concluded that a “real customer” could’ve easily posted the second review. As such, Cats & Dogs didn’t provide enough proof that Yelp egregiously and unfairly manipulated reviews, in an effort to extort money by way of an ineffectual advertising plan.

Dr. Tracey Chan: Didn’t Argue That Yelp Advertising Was A “Valueless Sham”

The judges knocked down Dr. Tracy Chan’s arguments because she failed to link Yelp’s alleged rating-manipulation promise to a forced Yelp advertising contract. Moreover, Chan didn’t claim that Yelp’s advertising opportunities were a “valueless sham” or that she was “already entitled to the advertising privileges [Yelp] induced her to buy.” In other words, Chan didn’t connect her reputational harm to a wrongful act on Yelp’s part.

Interestingly, in the opinion, the judges acquiesce that rating manipulation, as a sales technique, may breach some sort of consumer contract, but this particular argument didn’t cut muster.

Mercurio: “It Could Have Been Anyone!”

Though Mercurio couldn’t match several Yelp reviews to a customer, the judges weren’t convinced that Yelp was the fraudulent author. The bench reasoned that the reviews could’ve been written by “a competitor, or a disgruntled customer hiding behind an alias, or an angry neighbor, just to give a few possibilities.”

Can You Trust Yelp Reviews? Technical Legal Reasons The Judges’ Ruled In Favor of Yelp & (a.k.a., Why Review Manipulation Can Be Perfectly Legal)

At face value, these tales of Yelp review woe seem like rock-solid arguments. But when weighed against applicable laws, each one falls short. Here’s why.

  • Review manipulation on Yelp’s part, as described in the cases, doesn’t violate antitrust laws “or otherwise significantly [threaten or harm] competition.”
  • Technically, Yelp and SMBs are not in direct competition. And since all successful legal actions must be based on “legislatively declared policies” – and there is no policy about unfair competition between non-competitors – the argument crumbles.
  • The bench had to consider “Yelp’s alleged authoring of negative reviews.” The court deemed that the plaintiffs didn’t successfully – nor directly – expose Yelp as the author of the negative, false reviews.
  • In response to the extortion claim, the judges reasoned, “unless a person has a pre-existing right to be free of threatened economic harm to induce a person to pay for legitimate services” it’s not extortion. In other words, it’s perfectly legal for Yelp – and other consumer review websites – to control how and when reviews are displayed on their sites. Manipulating them, in it of itself, is not extortion, but instead an example of “hard bargaining.” The judges reiterated this point in the Levitt opinion, explaining, “Extortion requires more than fear.” Additionally, the court ruled: “so long as the alleged extortioner seeks payment for services that have some ‘objective value’,” that party has “a lawful claim to the property obtained.’”
  • The Levitt class used the “Hobbs Act,” but the judges rejected the argument because “purely economic threats don’t violate the Hobbs Act.” Under the law, extortion must include “wrongful” use of “force, violence or fear,” and “manipulation of user reviews, assuming it occurred, was not wrongful use of economic fear.”
  • “The fear of economic loss plays a role in many business transactions that are entirely legitimate,” explained the Levitt The judges also reinforced that the Hobbs Act can only be successfully argued when there is “the exploitation of the fear of economic loss.” The plaintiffs in this suit failed to prove the “exploitation of the fear.”

Is The Yelp Review Manipulation Legal Battle Over? Maybe Not.

All in all, the Yelp judicial panel sided with the consumer review website. However, at the end of the opinion, it left the door open for another go at this issue. The opinion teased:

“We emphasize that we are not holding that no cause of action exists……The business owners have not alleged a legal theory or plausible facts to support the theories they do argue.”

In other words: we’re not saying that consumer review websites aren’t completely faultless in their aggressive advertising tactics, we’re just saying that the arguments made in this claim weren’t 100% foolproof. It was a noble effort, consider our explanations this go around, tweak the claim, and you’ll probably have it.

Don’t expect this issue to go away. But for now, remember this lawsuit when you’re checking out businesses on Yelp. Is a low-rating truly representative of a business? Or is it the product of Yelp review manipulation?

Speak With A Yelp Defamation Lawyer

Are you dealing with Yelp defamation – or another Internet defamation challenge? An attorney can help remedy the situation, quickly. And it may not be as costly as you imagine.

In the meantime: Should you trust Yelp reviews? It’s up to you. But if you’re a small business owner with a Yelp reputation problem, get in touch. Let us fix the problem.

California’s Yelp Law: What Every Business Owner (& Consumer) Needs To Know

picture of cell phone on Yelp to accompany a blog post about new California Yelp law
The California Legislature passed Assembly Bill 2365 – a.k.a., the “Yelp! Bill.”

Free Speech advocates are thrilled about California’s Yelp law, but some business owners think it’s an example of unnecessary government meddling.

What Is The California Assembly Bill 2365 – (a.k.a., The Yelp Bill)?

You may have read that California’s “Yelp Bill” legalizes online defamation. Not true. Internet libel is still a civil offense in The Golden State.

What the new California Yelp Law does do is outlaw anti-disparagement clauses in business and consumer contracts. Simply stated:

  • Contracts that confer patients’ or customers’ intellectual property rights for online reviews is now ineffectual in California.
  • Contracts forbidding consumers or patients from voicing negative opinions online is now ineffectual in California.

Punishment For Breaking The California Yelp Law

Violators of the California Yelp Law can be fined up to $10,000; $2,500 for the first violation and $5,000 for recidivist offenders, in addition to “willful, intentional or reckless violations.”

Who gets the money that violators are forced to fork over?

Either the consumer who — or government department that — brought the charges.

From the Yelp Bill:

“When collected, the civil penalty shall be payable, as appropriate to the consumer or to the general fund of whichever governmental entity brought the action to assess the civil penalty.”

Does This Mean That Forum & Website Operators Are Forbidden From Removing Defamatory Material?

No. The California online consumer review law specifically addresses website operator rights:

“[The new statute] shall not be construed to prohibit or limit a person or business that hosts online consumer reviews or comments from removing a statement that is otherwise lawful to remove.”

In plain English: The Yelp law doesn’t forbid website operators from removing defamatory comments from their sites. Nor does the law mean that websites can’t curate their content.

Is there Any Chance That The California’s Yelp Law Will Go National?

Yep. California Rep. Eric Swalwell has plans to take the law Federal. Whether or not it makes it past the beltway’s gate keepers (a.k.a., lobbyists), remains to be seen.

2017 Update: It did. In 2016, officials passed the Consumer Review Fairness Act into federal law.

Consult A Yelp Defamation Lawyer About Your Circumstances

Are you dealing with an online defamation issue on Yelp or another consumer review website? If so, and you’d like to speak with an Internet libel lawyer about your predicament, get in touch with Aaron Kelly. The founding partner of Kelly / Warner Law, Aaron is an outstanding online defamation attorney who has helped hundreds of businesses and individuals with Internet reputation challenges.

If you have a question regarding the Yelp law — or any other online defamation legal issue — Contact Kelly / Warner. We’ll let you know — right away — if you have a viable case worth pursuing.

Impersonating Someone On The Internet: Legal or Illegal?

Picture of an Elvis impersonator to accompany a blog post about impersonating someone on the Internet
Impersonating someone on the Internet: Is it perfectly legal to set up a Twitter or Facebook account using another person’s name? Or, can doing so land you on the losing side of a lawsuit? What about parody? Is it legal to pretend to be someone else, on social media, for satirical purposes?

Below, we’ll answer these questions and explore the legal intersection of libel, humor, and impersonating someone on the Internet.

First Things First: Parody, Satire, and Defamation: What is the Difference?

I won’t bore you with a diatribe on the finer points of satire versus parody. Suffice it to say that works of both are meant to be witty – if not poignant – commentaries on political and cultural topics.

Defamation, on the other hand, is a free speech boundary that protects a person or company from harmful, malicious, negligent lies.

In the United States, satire and parody are acceptable; defamation is not.

Is it legal to Parody a private citizen By Co-Opting Their Name On Social Media?

Is it legal to make a fake Twitter or Facebook account using another person’s name, with the purpose of humiliating them?

It’s not an easy question to answer.  A lot depends on the circumstances. The chances of being sued do skyrocket, however, if the posts under review fall into one of the four categories.

Harassment

Threatening to harm or hurt someone is almost never OK — or legal. If genuinely threatening content is published on a fake Twitter or Facebook account,  authorities will sniff out the people behind it hold them accountable.

Defamation

Maliciously spreading false statements of fact about another person or business is against the law — in every corner of the United States and beyond. But in order for a statement to be legally defamatory, the defendant, at the very least, has to act negligently and cause harm to befall the victim.

Impersonation

Impersonating a law enforcement official, or other type of public servant, in a professional capacity, is illegal. Getting caught means serious ramifications — unless, of course, the content is clearly a work of satire or parody.

False Light

In some states, impersonating someone on a social media account or email could invite false light charges – especially since a U.S. court, in the not too distant past, ruled that “everyone is famous on Facebook.” While the public figure distinction may work against average Janes and Joes in IP lawsuits, the status could help in certain false light and defamation lawsuits.

Do You Have A Legal Question About Impersonating Someone On The Internet?

Are you dealing with an impersonation situation? Considering legal action? If yes, get in touch with Kelly Warner Law. We handle all manners of online libel and impersonation litigation.

The perfect legal solution may not be as costly or long as you think. Give us a call today to start weighing your options.

Email Impersonation Case Study

In 2011, Australian Stephen Kirkham gained access to co-worker Cosimo Tassone’s email account. From it, Kirkham allegedly sent a message to Tassone’s contacts. The email read:

“Hello people, just a note to say that I am a homosexual and I am looking for like-minded people to share time with.”

As a result, Tassone “suffered personal hurt and distress” and couldn’t work for a year. To make up for the lost income and perceived blow to his reputation, Tassone sued for defamation of character.

Both parties fought hard, but in the end the Australian court sided with Tassone, and the plaintiff walked away with $100,000. The judge ruled that even though calling someone gay is not defamatory, the email heavily insinuated that “the plaintiff is promiscuous, is of loose moral character and is seeking to solicit sexual relationships with people he does not otherwise know.”

Interestingly (or perhaps tellingly), Kirkham supposedly fessed up to the prank, dismissing it as a harmless “bad joke.” But when the lawsuit landed, Kirkham, allegedly, changed his tune and blamed the “bad joke” on another co-worker.

Defamation or Impersonation?

In Tassone v. Kirkham, the plaintiff won on a defamation charge in an Australian court (and there’s a decent chance he would have won a defamation charge in a U.S. court, too – depending on the jurisdiction).

In theory, however, in a U.S. court, Tassone could have also pursued impersonation and false light charges (again, depending on the jurisdiction). Moreover, if the “impersonating” was done on work hours and work equipment, business owners would be justified in terminating the perpetrator if an employment manual forbids using company resources for personal use.

Twitter Impersonation Defamation Case Study

The Players

In 2010, Joseph Cassiere worked at the California branch of The Agency Group, Ltd. – the self-styled “world’s leading independent talent booking agency.” David Shapiro – a recent “30 under 30” Billboard Magazine “one to watch” recipient — also worked for the firm.

Along Came A Fake Twitter Account

According to a defamation lawsuit filing, soon after Cassiere started with The Agency Group, a fake Twitter account popped up called @QuotesOfJJ; the header section featured a picture of Joseph Cassiere; the account followed other music industry professionals.

So, what was terrible about the fake Twitter account? Well, the tweets were puerile and made it seem like Cassiere was a “foolish, inept and sexually perverted” guy who “lewdly” sought “the opportunity to promiscuously and publicly find sources of ejaculation.”

Apparently, the account became infamous in the industry, and eventually Joseph Cassiere informed superiors that he wouldn’t be working in the office anymore if the fake Twitter account wasn’t killed.

It eventually was, but, as Cassiere explained in his lawsuit, “the damage was already done.”

Fired For A Bad Reputation – Defamation, Cyberbullying, False Light Lawsuit

In 2013, Cassiere thought he was in line for a raise, but got fired instead. The Agency Group executives explained that his “perception and credibility was not good,” and that the company had a “general loss of confidence in his ability as an agent.”

So, Cassiere decided to file a lawsuit. In addition to defamation and false light, the talent booker also evoked a rarely used 2011 California cyberbullying law.

Is There Proof That The Defendant Is The Person Behind The Fake Twitter Account?

A noteworthy aspect of this case is the lack of definitive proof that Shapiro is the person behind the fake Twitter account. To make matters more interesting, Shapiro denies being the anonymous impersonation defamation ne’er do well. So, in order for the case to move forward, Cassiere will have to definitively convince a judge that Shapiro is, indeed, the culprit. In his initial filing, Cassiere argues for Shapiro’s authorship thusly:

  1. The fake Twitter account mentions things that only Shapiro would know;
  2. Shapiro’s mention of @QuotesOfJJ on his own personal Twitter account is evidence that he is aware – and probably the author of – the fake account;
  3. The removal of the fake Twitter account happened after Cassiere complained to Shapiro (and presumably other superiors) – and nobody else — about it.

At this point, it’s anyone’s game and will depend largely on the quality of the lawyering. Issues of whether or not the things discussed on the fake Twitter account were a matter of public concern will definitely come into play. Also, the judge may have to weigh whether or not a “reasonable person” would be able to figure out that the account was a parody of satire. Heck, can it even be considered parody or satire since Cassiere is not a well-known public figure and the topics tweeted about were private things, not matters of public concern?

Talk with an attorney about your legal issue involving impersonating someone on the Internet.

Twitter Defamation Case: Mara Feld v. Crystal Conway

Photo of horse statute to accompany article about equine Twitter defamation case studyA much publicized Twitter defamation case has come to an unceremonious end. An equine scandal gone legal, Feld v. Conway clarified the Federal Massachusetts District Court’s stance on R-rated social media outbursts.

Horse Retirement Mishap Leads To Defamation Lawsuit

Our tale begins in 2010. WikiLeaks was in full swing, royals were getting engaged, and the horse world was buzzing about an equine scandal.

Gossip at the stable was that thoroughbred owner Mara Feld had accidentally sent her gelding to a horse auction instead of a horse farm. As a result, (so the story goes), the poor animal may have ended up in a Canadian slaughterhouse instead of hoofing away his twilight years as a horsey companion.

As is often the case when mistakes become public, the equine-interested peanut gallery took to the Internet to wax poetic about the faux pas — generously showering the owner with jibes and ridicule. One participant, a Kentuckian named Crystal Conway, added to the conversation by Twitter quipping, “Mara Feld…is f*cking crazy.”

Feld was not impressed with Conway’s assessment and decided to sue for Twitter defamation. The way Feld figured, as a PhD-holding toxicologist whose “prospective employers … [found] … her work by searching the Internet for her name,” Conway’s insult was a professional problem.

In response, Conway argued hyperbole – a protected First Amendment form of speech.

But this Twitter defamation case never made it to trial.

Judge Says Twitter Cursing ≠ Twitter Defamation

After reviewing Feld’s filing and Conway’s motion to dismiss, Judge Dennis Saylor IV sided with the latter. Ultimately, he deduced that Feld failed to state an action “upon which relief could be granted.” In other words, since Feld didn’t include a false statement of fact on which a defamation action could hang, there was nothing for the court to consider.

Additionally, according to MA defamation law, Saylor had to consider the entire context of the statement under review. In the end, Saylor said that Conway’s tweet was akin to an “imaginative expression” and “rhetorical hyperbole” — protected forms of speech.
In his own words, Judge Saylor explained:

“Dismissal is appropriate if plaintiff’s well-pleaded facts do not possess enough heft…”

and

The phrase “Mara Feld . . . is fucking crazy,” when viewed in that context, cannot reasonably be understood to state actual facts about plaintiff’s mental state. It was obviously intended as criticism—that is, as opinion—not as a statement of fact.

Contact A Twitter Defamation Attorney

Are you dealing with an online reputation situation? Has someone bad-mouthed you or your business on social media? If yes, and you’re curious about available legal options, get in touch with Kelly / Warner. We’ve successfully handled many social media defamation cases. In most instances, we’re able to help clients fix problems quickly and quietly so life and business can get back to normal.

Lawsuits aren’t your only legal option when it comes to Twitter defamation. Get in touch to learn more.

Twitter Defamation: Turkish Officials v. Twittering Turks

Twitter defamation in Turkey
Turkish officials engaged in a Twitter defamation standoff before the country’s elections last weekend.
  • Turkish politicians shut down Twitter after leaked recordings surfaced.
  • The social media clampdown came right before Turkish elections.
  • Are Twitter quips considered defamatory in the United States?

Turkish Officials’s Twitter Defamation Takedown Campaign

Weeks before Turkish citizens cast their ballots, country officials were nursing a major online concern: social media websites.

In the days leading up to the election, a “gotcha” government bribery tape leaked via Twitter. Politicians lobbed accusations of villainy across party lines – and word on the sokak was that Prime Minister Tayyip Erdogan was the wheeling-dealing politician caught on tape.

A consummate – if not predictable — statesman, Erdogan has maintained his innocence. Basically, he’s pinning the incident on a Pro Tools aficionado with opposition sympathies.

Turkey Doesn’t Have The Best Free Speech Track Record

A free speech vanguard, Turkey is not. In fact, the country has laws outlawing government criticism. So, it came as no surprise when Turkish lawmakers ordered Twitter to remove any and all offending accounts. Turkey’s communications minister put it bluntly, explaining, “Whether it’s Twitter, Yahoo or Google, all social media companies have to obey the laws of the Turkish Republic and they will.”

Twitter: “Defamation? We Don’t Think So.”

The quip-loving company, however, didn’t immediately kowtow to Turkey’s demands. Twitter was all (and, of course we’re paraphrasing here), Slow your roll, Turkey. Our definitions of Twitter defamation are not one in the same.

Turkey: Shut ‘Em Down!

Undeterred by Twitter’s hesitance, the Turkish government blocked the site entirely.  By election time, officials had also blocked Google and YouTube, thanks to another leaked tape.

Alleged Twitter Defamation Did Not Deter Election Outcome…Or Did It?

In the end, Erdogan won the election, and we’ll never know if his victory was aided by the social media shutdown. But one thing seems certain, Turkish politicians intend to keep tight control of social media platforms in an effort to curb Internet defamation.

What Are The Twitter Defamation Rules Under U.S. Law?

Is Twitter snark considered defamatory in the United States? Yes and no. Yes, under United States law, defamation is defamation – no matter if it appears in a well-respected print outlet or a shady website. However, in the past, some plaintiffs have argued that social media platforms are akin to parody and satirical magazines, and won.

Social Media Law Attorneys

Kelly / Warner is a boutique legal practice with considerable experience in international internet law and social media defamation. If you are entangled in a cross-border social media defamation spat, get in touch to learn more about your options.

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