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 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

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.

 

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Social Media Marketing Law: #Ad and #Sponsor

social media marketing law
What are the rules regarding using #ad and #sponsor hashtags?

What is the most important social media marketing law? If you pay people to promote products or services on social media, must they 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 social media 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 floral dress.

The garment sold out in 24 hours.

The issue? 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 are not 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 proverbial 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. (Tsk Tsk!)

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 and maintain a top AV rating.

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 2014 “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 transparent 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 can be brutal and bottom line crushing, 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 had been 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 experienced a Titanic-sized sinking. 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 travel company had to lay off over one-hundred employees.

Sundance eventually 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 you or your business?

First: Stay calm. Don’t snap and start railing against your 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 Facebook baddies telling the truth? Because if they are, their actions are not defamatory.

Defamation is more than just negative, disparaging talk. In order for a statement to be legally defamatory, the plaintiff must prove that:

  1. The defendant was the party that 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 to win.

We’ve Dealt 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? 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, and 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 the Yelp 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 – namely 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 online libel challenge? An attorney can help remedy the situation, quickly. And it may not be as costly as you think.

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’s 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 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.

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.

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 lawsuit has come to an unceremonious end. An equine scandal gone legal, Feld v. Conway clarified the Federal Massachusetts District Court stance on R-rated social media outbursts.

Feld v. Conway Origins: The Genesis of a Twitter Defamation Lawsuit

Our tale begins back 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 could not stay online for all to encounter. In response to Feld’s suit, 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 actually 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” which are both 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 the problem 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 party’s 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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Twitter Defamation Shocker: Courtney Love For The Win!

Wikipedia photo of Courtney Love to accompany post about her Twitter defamation lawsuits
Image Source: Wikipedia; User: ultra 5280 Flickr

Well, lookie here…Courtney Love won her latest Twitter defamation lawsuit.

Courtney Love’s Social Media Litigation Woes: A History

Back in 2012, notorious trash-tweeter Courtney Love and the “Boudoir Queen,” designer Dawn Simorangkir, were locked in a Twitter libel lawsuit over one of Love’s infamous social media meltdowns.

But before the case made it to trial, they reached a settlement. Love agreed to pay Simorangkir $430,000 and Twitter banned the Hole front-woman for two months.
But the saga didn’t end there.

In classic Courtney Love style, the defamation spat between Love and Simorangkir didn’t end with the 2012 settlement. Last May, while on the Howard Stern Show, Love talked about the Twitter defamation case and claimed to have security camera evidence of the designer stealing. Love also called Simorangkir “a whore.” Howard Stern, the King of Shock Jocks, was even taken aback by her claims. He warned, “You can’t just blurt things out.” Well, Dawn must have been listening, because Simorangkir filed yet another social medial libel suit against Love in September 2013. The issue has yet to be resolved a second time.

Love’s Latest Conspiracy Theory Tweets Result In Twitter Defamation Case

One night, Courtney Love tweeted, “I was f–ing devastated when Rhonda J. Holmes, Esq. of San Diego was bought off.” Why pillory a random lawyer online? Well, you see, Holmes, (at the time), was Courtney’s attorney. And, as you may have already guessed, Courtney and Rhonda’s relationship was suffering through a bit of a professional rough patch.

Love swears the tweet was never meant to be public. She insists she was merely expressing private disappointment in what she believed was her former lawyer’s betrayal. In her signature self-revelatory bluntness, Love also blamed the problematic tweets on a “lack of sobriety.”
Unimpressed with Courtney’s Twitter quips, Holmes filed a Twitter defamation lawsuit against Love, claiming the 140-character rant harmed her professional reputation.

During the trial, Love’s attorney argued:

  1. That the plaintiff didn’t show negligence;
  2. Courtney believed her suspicions about Holmes to be true;
  3. Because of points 1 and 2, Love’s Twitter statements shouldn’t be deemed defamatory.

Twitter Defamation Upset: Twibel Jury Sides With Love

Legal watchers were certain Love would lose this one. But in the end, she emerged victorious. Why? Because the jury unanimously agreed that the answer to the following question had to be “no”:

“Did Rhonda Holmes prove by clear and convincing evidence that Courtney Love knew [her tweets were] false or doubted the truth of it?”

You see, for a statement to be defamatory, the plaintiff must prove that the defendant acted either negligently or with actual malice. In other words, a statement cannot be defamatory if the would-be defamers believe in the truthiness of their statements. In this instance, the jury believed that Courtney truly thought Holmes was secretly working with a cabal of anti-Courtney estate executives. After all, the Hole singer had been ranting against enemies – imagined or not – for years. (In this particular case, whether or not anti-Courtney Love quislings actually exist doesn’t matter; the fact that Courtney genuinely thinks it exists is the relevant issue.)

After deliberating for several hours, the jury returned with a verdict. While the jurors didn’t believe Love’s statements about Holmes, they did believe Courtney thought she was tweeting the conspiracy gospel. As a result, the gang of 12 ruled in favor of Team Love.

Like the “twinkie defense” before it, perhaps this brilliant bit of defensive arguing also deserves a moniker – let’s go with: “tweet-tin-foil defense.”

Get In Touch With A Twitter Defamation Lawyer

With Twitter’s 140-character limit, the platform is fertile defamatory grounds. If you need to speak with a Twitter defamation lawyer, get in touch today. Kelly Warner has a dedicated social media attorney on staff who can help rectify your situation quickly.

Get in touch today to begin the conversation. The sooner your address the problem, the sooner it can be solved.

Retweeting Defamatory Statements: Can You Be Sued?

graphic of blue bird in boxes to accompany blog post about retweeting defamatory postsCan you be sued for retweeting defamatory statements?

Retweeting Defamatory Material: Jurisdiction & Liability

It’s an oft-asked question: Is it defamatory to retweet a libelous tweet? The answer isn’t simple. Whether or not a retweet constitutes an act of defamation largely depends on two factors:

  1. Jurisdiction (i.e., where you live and the laws to which you’re beholden);
  2. Editorial Additions (i.e.,Did you add comments to the retweet?);

Residents of Commonwealth Countries Are More Likely To Be Punished For Retweeting Defamatory Statements

Whether or not a re-tweet or re-post is considered a separate defamatory act has a lot to do with the court hearing the case. Globally speaking, the rule of thumb is this: if you live in a Commonwealth country (e.g., United Kingdom, Australia, Canada, etc.) than the chances of losing an online libel case for re-tweeting increases.

Play It Safe: Don’t Add Comments To Retweets

If you live in the United States, the chances of being busted for retweeting defamatory statements are slim, but possible – especially if you tack on your own comment.

Defamation By Tagging

Some judges, outside the U.S., take a hard-line when it comes to the defamatory nature of retweeting.  Just take a look at an excerpt from the Isparta v. Richter ruling:

 “The second defendant is not the author of the postings. However, he knew about them and allowed his name to be coupled with that of the first defendant. He is as liable as the first defendant.”

This overseas judge is saying, “everyone is responsible for the use of their name on social media. If you know your handle or real name is attached to defamatory content, then you’re liable for libel.”

Interested in reading about other social media law case studies? Head here.