Bogus Online Reviews: The Case of the Competitor

competitor online trade libel
What are your legal options if a competitor posts a bad review of your business on a consumer review website?

Online trade libel lawsuits are on the rise thanks to consumer review websites like Yelp, Ripoff Report, and TripAdvisor.

The rise in cases has many people asking: “Are these lawsuits fair?” and “Don’t First Amendment protections render most Internet defamation cases moot?” To answer: Yes and No.

The Difference Between Free Speech and Defamation

Sure, it’s 100% legal, for you, me, and everyone we know, to shout-type negative opinions online. But what isn’t legal is publicly lying about a business or person. Doing so is considered defamatory, and people who engage in the practice can be successfully sued by the parties they besmirch.

What If My Competitor Is The Person Posting A Bad Review?

Sometimes, though, online disparagement isn’t the work of actual customers, but instead the marketing machinations of a competitor.

Yep: Some people pay marketers to write disparaging fake reviews; some business owners convince friends to act as “Salieris of Defamation.” Either way, it’s an underhanded trick that flies in the face of compliance standards.

If You Can Prove A Competitor Is Behind A Bad Review, Your Chances Of Winning A Trade Libel Lawsuit Skyrocket

The great news: it’s much easier to win a trade libel lawsuit if you can prove a competitor is the puppet master behind a bad online review. If you suspect a competitor is behind a spate of negative press targeting your business, consider taking action.

Contact An Trade Libel Lawyer

Fake, defamatory consumer reviews are unfair competition at its worst. Contact Kelly / Warner if you’re the target of an attack.

Marketing Defamation: A New Type Of Online Business Libel

marketing defamation lawyer
A new marketing trade libel lawsuit may be one of the first of its kind.

Dust off that deerstalker and limber your legal mind — for a fascinating libel lawsuit is afoot!

Video streaming company, FilmOn, is suing high-level Web analytics/Online Marketing firm, DoubleVerify, for what can only be described as “classification marketing defamation.”

FilmOn v. DoubleVerify teases a new set of legal questions regarding the intersection of media distribution, digital globalization, and reputation torts.

The Two Sides of This Marketing Defamation Lawsuit: FilmOn & DoubleVerify

The Plaintiff: FilmOn

A decidedly 21st century venture, FilmOn deals in all things streaming. The company offers a plethora of packages ranging from global video-on-demand services to custom branded media players. According to Business Insider, “FilmOn provides hundreds of live TV channels and on-demand programming to the web, both for free and with some content behind a subscription.”

Judging from the website, FilmOn doesn’t necessarily develop content, but instead provides private-label streaming. For example, a convention may use FilmOn for customized video services; or, a business may order a bespoke media player.  Individual TV-streaming packages are also available.

The Defendant: DoubleVerify

A high-level Web analytics firm, DoubleVerify promises clients “appropriate environments for [their] brands with real-time blocking controls.” In other words, they help you make sure your online advertisements appear in “the right” online neighborhoods.

For example, if a company is selling a family-friendly product, it probably doesn’t want to advertise on “adult entertainment” websites. DoubleVerify helps with that.

The Issue: Undesirable Classification

The issue anchoring FilmOn v. DoubleVerify is straightforward:

DoublVerify labeled FilmOn a “copyright violator” and “adult content distributor” in its advertising classification database.

As a result, many DoubleVerify brands opted not to have their ads appear on FilmOn’s website – which decimated the streaming company’s bottom line. After all, like many online-based businesses, Internet advertising dollars are a significant revenue stream for FilmOn.

We AreN’t What You Say We Are

When FilmOn executives learned of their company’s classification in the DoubleVerify system, they contacted the advertising firm, explained how their services worked, arguing that FilmOn is not a copyright violator, nor adult entertainment purveyor.

But their pleas failed; in the eyes of DoubleVerify, FilmOn remained an intellectual property infringing p-rn runner.

Unwilling to let the classification stand, the streaming media company filed a business lawsuit against the online marketing outfit.

What Makes The FilmOn v. DoubleVerify Business Defamation Lawsuit Interesting?

FilmOn v. DoubleVerify is worth mentioning because it speaks to the current state of the marketplace – the marketing-dependent state.

Think about it for a second: a giant chunk of the digital economy is fueled by marketing. If I were feeling cynical and extra get-off-my-lawn-y (which I’m not), I might remonstrate: “People used to make things; now we just market marketing!” Which is fine. The trend will continue the more digital we become. But the shift does present a new set of legal questions and implications.

The Shift To Big-Data Marketing: Legal Implications

Will this tectonic shift to big-data marketing impact business law? Marketing defamation law?

Reputation classifications will become more popular, and lawsuits like FilmOn v. DoubleVerify will become the norm.

Marketing, Subjectivity, and Defamation Law

As the marketing industry metastasizes, questions regarding subjectivity, as it relates to defamation law, will come to the fore. Cloud- and platform-oriented services, as opposed to content-oriented services, will present new legal quandaries in the coming years. Will Section 230 of the Communications Decency Act suffice? Time will tell.

 Source

Business v. Business Defamation & Unfair Competition

business defamation unfair competitionA North Carolina jury ruled in favor of a software company that sued a competitor for unfair competition and business defamation. A product newsletter is at the center of this business-on-business lawsuit, and it serves as an “unfair competition” cautionary tale.

Software Co. v. Software Co. – A Tale of Business-on-Business Defamation

EMove Inc (“Emove”) and SMD Software Inc (“SMD”) are direct competitors. Both companies make software for the self-storage/moving industry. Several years ago, Emove did a mailer extolling the virtues of its products, and in it mentioned rival SMD.

Now, it’s not unusual for competitors to use each other in marketing materials, but there is a line that can’t be crossed. Here’s what Emove did wrong:

  1. Inflated the price of SMD’s products;
  2. Inaccurately stated what was and what wasn’t included in SMD’s services; and
  3. Inaccurately stated that SMD didn’t offer certain services when it did.

Notice how nothing on that list is an opinion? Under United States defamation law, opinion is not considered defamatory; making a false statement of fact is. If Emove had said something general like, “Our customers think we’re better than the competition” — no biggie.

In the lawsuit, SMD alleged:

  1. Defamation,
  2. Tortious Product Disparagement,
  3. False Advertising (Lanham Act violations), and
  4. Various North Carolina fair competition laws.

The jury’s verdict? Emove had to hand over $1.7 million for misleading customers about SMD via their product marketing materials.

Business-on-Business Defamation and Unfair Competition: What Are The Differences?

Defamation and unfair competition go together like strawberries and cream. Businesses clawing for market dominance do engage in disparagement schemes. But you can fight back.

1) File A Business Defamation Claim: File a business defamation lawsuit if you have a solid case. To win, you must be able to prove that:

  1. Your competitor lied about you, your product, or your company;
  2. The lie caused material harm or severe reputation harm;
  3. It was read or heard by more than one person;
  4. The statements were made negligently.

2) Allege Lanham Act Violations: The Lanham Act is the country’s chief intellectual property and business competition law.

3) Tortious Interference Claims: Tortious interference claims involve instances where one party interferes with an agreement between two other parties.

Contact a Business-on-Business Defamation Lawyer

Various state laws also apply in unfair competition lawsuits. It’s best to speak with an attorney about the specifics of your situation for a more nuanced read on your legal options.

Dating Site Sued Competitor For Defamation

academic defamation lawsuits
An online business thought their competitor was behind a so-called “suck site”, so it sued.

A pair of mail-order bride websites – Anastasia International and EM Models (dba, Elena’s Models) — went toe-to-toe in court. By way of a lawsuit, Anastasia accused EM of false advertising, trademark infringement, and defamation, alleging the latter commissioned a so-called “suck site,”  anastasiadatingfraud.com.  EM Models denied the claim. In the end, a judge sided with the defendant because the plaintiff couldn’t produce enough evidence.

Dating Site Sues Competitor For Defamation

Anastasia International is a fee-based online dating service featuring women from Russia and Ukraine. It’s based in Kentucky, with offices in New York. In May, the site filed a lawsuit against a competitor, EM Models. Why? Well, executives at Anastasia were convinced that EM had paid Juha Natunen to create anastasiadatingfraud.com, a website accusing Anastasia’s women of stringing men along with the intention of “breaking their hearts” in the end.

Anastasia sued for defamation, false advertising and trademark infringement.

Could A Link On The Suck Site Work In Favor Of The Plaintiff?

Apparently, when Anastasia International filed the lawsuit, someone removed a link on anastasiadatingfraud.com that led to EM Models. During the proceedings, the judge said the removal of the link was the “strongest factual claim bolstering [Anastasia’s] argument” that EM paid to have the site created. In the end, though, the judge decided that “such an allegation of temporal proximity is not enough to show any connection or communication whatsoever, let alone an agency relationship, between Juha Natunen and EM Online. In other words: a link is not proof enough that EM hired Natunen to build the site.

The court ordered Anastasia to pay Elena Model’s attorney fees.

Vengeance Is Not A Good Look

“Hey, why didn’t Anastasia sue the website operator, Juha Natunen, for defamation instead of just suing competitor EM Models?” If that thought crossed your mind, you’re not alone. The judge in the case considered this question, ultimately reasoning that Anastasia’s refusal to drop EM Models from the lawsuit smacked of “a competitive ploy.”

Game Developer Lawsuit: Battle Of The Gaming Tanks

game developer lawsuits
A new game developer lawsuit raises a few questions regarding online intellectual property.

Are you ready for some football tank wars!? A game developer v. game developer lawsuit, the case we’re about o dissect involves both online intellectual property and slander…kinda.

Origins of A Game Developer Lawsuit

World of Tanks is a game developed by Wargaming.net. Project Tank (a.k.a., Tanks Ground War) is a game developed by China-based Gamebox.

Apparently, Wargaming isn’t happy about Gamebox’s tank game, so it’s suing for intellectual property infringement.

Tank Game Developer Lawsuit Specifics

In the claim, Wargaming insists Project Tank is “disturbingly similar” to World of Tanks. The U.S.game developer avers Gamebox “copied the plot, theme, dialogue, mood, setting, pace, and character of World of Tanks, in addition to copying specific features, items, tanks, and artwork.”

Because of the suit, Facebook pulled Project Tank from its platform, which killed Gamebox’s bottom line.

Defendant’s Reaction & Counter Suit

A representative from Gamebox explained the company’s position:

“We feel truly shocked and bullied by Wargaming, a giant company of the gaming industry who is apparently ‘threatened’ by a closed beta phase browser game aiming to provide a cheaper, fairer, and more accessible war game to players around the world.”

Unwilling to go quietly into that digital night, Gamebox filed a counter-claim. The Chinese developer is alleging “illicit competition and slander.”

Who Will Win This Game Developer Lawsuit?

If argued well, the competition charge has merit: Similarities stem from similar themes, not theft. As such, a tank is a tank is a tank – and the ways one can depict a tank are finite.

Another factor bolstering Gamebox’s case: Project Tank’s expulsion from Facebook. To win intellectual property lawsuits, plaintiffs must prove material harm. In this case, Project Tank can probably present a strong case about the fiscal ramifications of Facebook suspension.

Need a game developer lawyer? Contact Kelly Warner Law. We have a strong, well-respected technology law team that deals with developer lawsuits and litigation. Get in touch anytime.

Social Media Defamation: Can I Sue The Creator Of A Facebook Group?

facebook logo to accompany a blog post discussing the question: can i sue the creator of a Facebook groupBelow, we answer some Facebook defamation questions, like “Can I sue the creator of a Facebook group?”

Can I Sue If Someone Defames Me On Their Personal or Business Facebook Page?

Yes. If a person publicly posts an untrue, harmful statement about you on Facebook, you can sue for libel.

opinion is not defamation
Remember: Opinion is NOT Defamation!

Opinion Is Not Defamation

Remember: Statements of opinion, parody, and satire, are not considered defamatory in the United States. Moreover, different standards of proof apply for public and private citizens.

Pay Mind To Defamation Statute of Limitations

Also, the defamation statute of limitations is short. So, if you’re serious about suing over Facebook defamation, start the process sooner rather than later.

Can I Sue The Creator Of A Facebook Group For Online Defamation?

Yes, if you know who created the group. If you only know your adversary’s online alias, a suit is still possible , it’ll just take a few extra steps.

People Don’t Have To Like You

Folks who don’t like you can shout, “I think you’re terrible!” Sharing opinions online is also fine. But it’s defamatory to spread inaccurate gossip.

Defamation Isn’t The Only Tort At Your  Disposal

Truthful, embarrassing statements may not be defamatory, but other civil torts – like right of publicity or false light – can sometimes be used when private, humiliating information is made public without authorization.

Can I Sue Facebook For Defamation?

The chances of winning a defamation lawsuit against Facebook — the corporation — are between slim and none. It’s not impossible, but the mega-corp – like all other websites – are protected under Section 230 of the Communications Decency Act.

In simple terms, section 230 of the CDA provides safe harbor protection for ISPs and website operators in the event a third-party user posts defamatory material.

If An Individual Uses An Alias, Will Facebook Hand Over The Person’s Real Name?

anonymous defamation
YES! You can still sue the creator of a Facebook group or page even if you don’t, at first, have the individual’s name.

A website’s cooperation in a lawsuit always depends on the circumstances. Typically, websites won’t reveal identifiable information in service of personal lawsuits — unless directed by a U.S. court order. That said, as a matter of law, many site operators willingly lend a digital hand in cases of imminent danger.

Entangled In A Facebook Defamation Web?

If you’re looking to unmask an anonymous individual for the purposes of a defamation lawsuit, hire a libel lawyer with experience tracking down unknowns.

If you want to sue the creator of a Facebook group for defamation, Kelly Warner law can answer your questions. Contact us to begin the conversation.

Spam Lawsuit: Can you sue someone for defamation over SPAM accusations?

Can you sue someone for defamation over SPAM accusations
Would a judge and jury consider using the term”spammers” a defamatory act? A new high-profile defamation lawsuit involving Facebook could solidify case law on the issue.

Can you sue someone for defamation over SPAM accusations? In a word: Yes. Point in case, a development business recently slapped Internet mega-corp Facebook with such a claim.

The case is Profile Technology Ltd. et al. v. Facebook Inc. And the ruling will definitively answer: Can you sue someone for defamation over SPAM accusations?

Facebook’s Sued For Allegedly Calling An App Developer “Spammy”

A highly-connected New Zealand app development firm sued Facebook for defamation over accusations of SPAM activity. Profile Technology Ltd. – which makes IQ tests, plus polling and petition apps – says Facebook “abused its power in ways that were fraudulent, oppressive and malicious.” According to the app company, the social media hub cut Profile’s access to data crawling features and insinuated that Profile Technology produced “spammy” and “unsafe” products.

Profile technology swears Facebook unexpectedly pulled its plug after a fruitless contract negotiation.

And here’s where things get a little foggy.

At first, Facebook said it never had an agreement with Profile Technology. For its part, the app company says Facebook “flip-flopped and demanded revisions in the contract terms so drastic that they would have amounted to delivery to Facebook of all rights with respect to plaintiffs’ technology and information.”

Essentially, Profile Technology’s argument is: the abrupt cut-off, coupled with the Facebook’s “dismissal” announcement, cost the company money and respect.  Specifically, the plaintiffs alleged that:

  1. Facebook published statements asserting that “links” (HTML hyperlinks) to Plaintiffs’ site at “profileengine.com” have “been blocked for being spammy or unsafe.”
  2. The “spam” accusations “imply that plaintiffs have maliciously abused the world’s shared Internet resources” and that “’Spammy’ conduct merits condemnation and shunning in the Internet community to which plaintiffs belong.”

Profile Technology demanded a jury trial. In addition to defamation, the firm also sued for breach of contract, interference with business relationships, defamation and unlawful, unfair and fraudulent business practices.

Can You sue someone for defamation over SPAM accusations?

Back in the day, defamation lawsuits involved political name calling and satire spars between preachers and pornographers. But the more tech we get, the more Internet defamation lawsuits arise.

And yes, these days, being labeled a spammer could do serious damage to your business, and thankfully, rulings reflect that fact. But before you threaten to sue someone for defamation over SPAM accusations, review the CAN-SPAM Act to ensure you aren’t, technically, a spammer.

Our team of attorneys has considerable experience with Internet defamation litigation. An AV-rated firm, with a 10-out-of-10 rating on the respected lawyer review website AVVO.com, Kelly / Warner has the legal know-how you need. Contact us today to begin the conversation.

Legal Cases Involving Anonymous Online Comments

examples of legal cases involving anonymous online commentsLet’s talk about two legal cases involving anonymous online comments. The first involves a workplace situation; the second an online stalking situation.

Legal Cases Involving Anonymous Online Comments: Employee Fired For Posting Political Punditry On “The Clock”

This online commenting lawsuit involves a New York State employee, whom we’ll call “Brad.” Brad used the pseudonym Sophia Walker to comment online.

One day, at work, Brad hopped online and typed a defense of a political party member. And guess what? Brad got the boot for his political punditry. Why!? Free speech! Because he posted on the clock, on a *company computer.*

Most workplaces have specific rules about acceptable Internet conduct. So, when HR hands you that giant package, read it! The company’s Internet law policies are probably in that packet.

Legal Cases Involving Anonymous Online Comments: Woman Files For Restraining Order Against Alleged Online Stalker

Here’s another story about an anonymous online comment that led to legal action.

For years, a woman (whom we’ll call “Kenya”) had a stalker who built shrines in her honor. Kenya decided to take action and secured a court order compelling Google to reveal identifying information about the harasser. The order also led to a temporary restraining order. Now, she’s suing him.

A win for Kenya in this case could be significant, in terms of online stalking legal precedence.

If you run into trouble with your employer over an Internet law issue, or you are looking to get a temporary restraining order, get in touch. Kelly / Warner has considerable experience with legal cases involving anonymous online comments. Get in touch today to learn your legal options.

Source – NYT

Source – HuffPo

What Are The Limits On Free Speech?

limits on free speech in the U.S.
Defamation law attorney Aaron Kelly answers questions about the limits on free speech.

What do speech, press, religion, and petition freedoms afford U.S. Citizens?

The freedoms to speech, press, religion, and petition guarantee that each U.S. citizen can express themselves safely and openly. It means we can:

  1. Publicly disagree with authorities;
  2. Practice a religion, of our own choosing, without fear of persecution;
  3. Have a media industry that reports on government mistakes and happenings;
  4. it means we can gather, and en masse, to let our voices be heard on social and political matters.

Are There Limits On Free Speech?

There are limits to freedom of speech, and those limits boil down to public safety and honesty. The classic example of unprotected speech is screaming fire in a crowded room when there is no fire, as the welfare of the citizenry becomes paramount. Another example: protests require permits to ensure proper safety requirements are met.

Religious Issues & Limits on Free Speech

As for religion, well, that’s a little more nuanced, as many religions hold beliefs contradictory to secular la. But one thing is for sure, the courts don’t like ruling on religious matters.

Anonymous Defamation

A big issue these days is online defamation.  People are less careful about what they say online. Moreover, from a procedural standpoint, Internet anonymity presents another layer of litigation, as plaintiffs must first uncover the legal names of their accusers. In anonymous situations, many people use a freedom of speech as a defense to keep their names from entering public records; sometimes it works, sometimes it doesn’t.

Online Censorship Timeline

Easy, since the beginning. Well, maybe not Tim Burners Lee beginning, but for arguments sake, let’s just say that once the public merged onto “the information super highway” (remember when that was the phrase), it was on. In the early years, copyright infringement and defamation were used as litigation tools  to censor online content. And back then, before the DMCA and Section 230 of the CDA, website operators were not protected from third-party liability.

How Can We Fight Online Censorship?

I wish I had the answer! If I did, I’d be living la vida Gates.

But in all seriousness, it’s a complicated question because the possible permutations are endless. Generally speaking, what we need are laws that both allow for Internet freedom, foster innovation, and protect businesses from unfair and deceptive defamation.

What are some common censorship targets?

Depends on where you are. I wrote a story a couple of weeks ago about a guy who was charged with defamation for talking unkindly about the King of Thailand online. Would that ever happen in the United States? Probably not. Heck, some of the most successful Web outlets were built on the backs of government criticism.

To sift through slander and libel laws from different countries, head to International Defamation Database.

If you’re only interested in U.S. law and limits on free speech, head here to the U.S. defamation database, which includes federal standards, plus a summary of laws for each state.