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?

The First Amendment serves up a whole lot of freedom, so defamation cases aren’t the easiest to win. The exception? When plaintiffs can prove that their competitors are behind the disparaging reviews.

Online Trade Libel Lawsuits Over Internet Consumer Reviews Are On The Rise

I’m sure you’ve read the memo by now, but if not: Online trade libel lawsuits are on the rise thanks to consumer review websites like Yelp, Ripoff Report and TripAdvisor.

Due to the rise in cases, many people are asking questions like: “Are these lawsuits fair?” and “Don’t First Amendment protections render most Internet defamation cases moot?” The answers: Yes and no.

The Difference Between Free Speech and Defamation / Libel

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 businesses they besmirch.

Free speech rights are broad, and opinions aren’t usually considered statements of fact.

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

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

You read that right: to gain market advantage, some business owners and marketers will post fake, negative testimonials about competitors’ products or services. Sometimes marketers are paid to write disparaging fake reviews; other times business owners convince friends to act as “Salieris of Defamation.” Either way, it’s an underhanded trick that has cost thousands of companies millions of dollars over the past decade.

If You Can Prove A Competitor Is Behind A Bad Review, Your Chances Of Winning An Online 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 – you probably have the makings of an excellent defamation lawsuit.

Contact An Online Trade Libel Lawyer

Fake, defamatory consumer reviews is unfair competition at its worst. Contact Kelly / Warner if you’re the target of an online trade libel attack. We’ve won hundreds of Internet business defamation cases.

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 a deerstalker and limber that 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 presents a different type of libel – one singular to online marketing analysis. Plus, the case teases a new set of legal questions regarding the intersection of new-model media distribution, digital globalization and reputational torts.

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

The Plaintiff: Filman

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, it appears FilmOn doesn’t necessarily develop content, but instead provides private-label streaming — and more. 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. In essence, FilmOn isn’t necessarily a content creator, but instead a platform provider.

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 “apt” online neighborhoods.

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

The Main 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 Are Not What You Say We Are

When FilmOn executives learned of their company’s classification in the DoubleVerify system, they contacted the analytics advertising firm, explained how their services worked, and cogently argued that, legally speaking, 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 that were then marketed, 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: The 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. Moving forward, businesses must be diligent about monitoring online reputations — not just online, but in brand databases.

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?

Soon, courts will need to establish case law addressing “classification marketing defamation” as a separate phenomenon.


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 anchors this business-on-business lawsuit, and it serves as cautionary tale for what not to do when trying to gain market dominance.

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

EMove Inc and SMD Software Inc are direct competitors. Both companies make software programs used by self-storage/moving businesses. Several years ago, EMove did a mailer extolling the virtues of its products. In it, EMove mentioned rival SMD and made claims about EMove’s alleged superiority.

Now, it’s not unusual for competitors to call each other out 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 defamation, but making a false statement of fact is. If EMove would have said something general like, “Our customers think we’re better than the competition,” then it would have probably been in the clear. But SMD executives crossed the marketing Rubicon. Once they started making provably false statements about SMD, the defamation line was crossed.

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.

This lawsuit is 6-years-old and originally included U-Haul. U-Haul litigated their way out of it early on – and it looks like doing so save that company a whole lot of money, because the jury said that 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?

In today’s Internet-based marketplace, defamation and unfair competition often go together like strawberries and cream. Businesses clawing for market dominance engage in high-tech disparagement schemes; social nemeses sometimes give in to revenge urges in ill-reasoned online smear campaigns (it is known). If either happens to you, legal options are available. For example, you can:

1) File A Business Defamation Claim: File a business defamation lawsuit if the facts of your case fit. In order to move forward with a defamation lawsuit, you must be able to prove:

  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. Many acts of unscrupulous competition fall under the Lanham Act; it’s best to talk to an attorney about your specific issues to see if you have a strong claim under this statute. The Lanham Act also covers intellectual property concerns, which can sometimes be used in business on business lawsuits.

3) Move Forward With 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 many unfair competition lawsuits. It’s best to speak with an attorney about the specifics of your situation to get a more nuanced read on your legal options.

Online Trade Libel Case Study: The Battle Of The Mail-Order Bride Websites

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 hired a Web developer to make a “suck site” called  EM Models denied the claim, and in the end a judge sided with the defendant because the plaintiff couldn’t produce enough proof.

How This Online Trade Libel Lawsuit Started

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 mail-order bride type site filed a lawsuit against one of their competitors, EM Models. Why? Well, executives at Anastasia were convinced that EM had paid Juha Natunen to create, a website which accused Anastasia’s women of stringing men along with the intention of “breaking their hearts” in the end.

Irate over the website, Anastasia sued for defamation, false advertising and trademark infringement.

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

Apparently, when Anastasia International first filed the lawsuit, someone removed a link on that had 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 because the former kept the latter as a defendant without proof for an extended period of time.

Competition Litigation No-No: Don’t Make It Obvious You Only Care About Hurting The Competition

If you’ve been following along, you may have thought, “Hey, why didn’t Anastasia sue the website operator, Juha Natunen, for defamation instead of just suing competitor EM Models?” If that thought did cross your mind, you’re not alone. The judge in the case factored this thought into the ruling, reasoning that Anastasia’s refusal to drop EM Models from the lawsuit smacked of “a competitive ploy.”

Be Smart, Don’t Purposefully Jump On The Trade Libel Wagon

You may have the urge to secretly fund an attack website of your competitor. Don’t do it. It’s more likely you’ll be found out than not. And if you are, the amount you’ll most likely have to pay if you lose a defamation lawsuit may far outweigh the potential profit gain from plating dirty.

Kelly Warner Law deals with all things business and defamation law-related. Whether you need an attorney to draft an operating agreement or help you go after a competitor who is playing out of bounds, we can help. We are a top-rated law firm that won’t cost you a small fortune. Get in touch today to begin the conversation.

Game Developer Lawsuits: 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 includes elements of online intellectual property and slander…kinda.

How This Game Developer Lawsuit Started

World of Tanks is a game developed by Project Tank (a.k.a., Tanks Ground War) is a game developed by China-based Gamebox. As you can probably surmise from their descriptive titles, both games deal with tanks. Apparently, though, Wargaming isn’t happy Gamebox developed a tank game too, so they’re suing for intellectual property infringement.

The Tank Game Developer Lawsuit Specifics

In their claim, Wargaming insists Project Tank is “disturbingly similar” to World of Tanks. The 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.”

As a result of the original game developer lawsuit, Facebook pulled Project Tank from its platform. As you’d imagine, the expulsion from the social-networking site was a blow to Gamebox’s bottom line.

Defendant’s Reaction & Counter Game Developer Lawsuit

When asked for comment about the game developer lawsuit, a representative from Gamebox explained the company’s position – and took the opportunity to snark on the big-box game development firm, Wargaming. Specifically, Gamebox opined, “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 deep night, Gamebox opted to file a counter-claim. The Chinese developer is alleging “illicit competition and slander.”

What Are The Chances Of Gamebox Wining The Counter-Claim?

The illicit competition charge has some definite merit if argued well. Intellectual property infringement often turns on whether or not the alleged “theft” was of a mechanical or artistic nature. As such, in their claim, Gamebox deftly argued that any similarities between the two games are a mere result of both being video games about a similar theme. After all, a tank is a tank is a tank – the number of differing depictions of a tank are few and far between.

Another factor bolstering Gamebox’s case is Project Tank’s expulsion from Facebook. In order to win an intellectual property game developer lawsuit, it’s necessary to prove financial harm. Going on the available information, Project Tank’s makers should be able to present a very strong argument that getting kicked off Facebook hurt their business tremendously.

Their chances of winning the slander claim, however, are less auspicious. To put it simply, slander is spoken defamation and libel is written defamation. Now, there may be an element of this case that has not yet been made public, in which case Gamebox could have a strong slander case. But if we’re only looking at the facts currently available, there is a strong possibility a judge will toss the slander charge quicker than you can say “tank.”

Moreover, in most cases, accusations lodged in a formal lawsuit are considered privileged, and thus not actionable under available defamation statutes.

Do you need a game developer lawyer? Contact Kelly Warner Law. We have a strong, well-respected technology law team that deals with game 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 Someone Who 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 online 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, it’s best to start the process sooner, rather than later.

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

Yes. If you know the name of the person 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.

Facebook defamation law
People don’t have to like you, but you can sue for defamation if they lie about you.

People Don’t Have To Like You

If people don’t like you, they’re allowed to shout, “I think you’re terrible!” from the rooftops – and on the Internet. It’s also not libelous to share truth or opinion online – but it is defamatory to spread inaccurate gossip.

Defamation Isn’t The Only Tort At Your  Disposal

Truthful, embarrassing statements may not be considered defamatory, but other civil torts – like right of publicity or false light – can sometimes be used to stop someone from spreading private, humiliating information without authorization.

Can I Sue Facebook For Defamation?

If you’re a U.S. citizen, 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 – is 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 Give Me The Person’s Real Name in service of a lawsuit?

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.

Whether or not a website will divulge user information almost always depends on the circumstances of a case. 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 are looking to sue the creator of a Facebook group for defamation, Kelly Warner law is here to help. Contact us to begin the conversation.

Spam Lawsuit: Can You Sue For Defamation If Someone Calls You A Spammer?

SPAM legal information
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 for defamation if someone calls you or your business “a spammer”? In a word: Yes. Point in case, mega-Internet-corp, Facebook, recently got slapped with a spam lawsuit — and the charge was defamation.

Profile Technology Ltd. et al. v. Facebook Inc. was filed in the California Superior Court, in San Mateo county. If Facebook loses this spam-related lawsuit, it would solidify case law with regards to the defamatory nature of being labeled a spammer.

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

This time the social networking company is being sued for defamation, in a California court, by an app development firm based in New Zealand. Profile Technology Ltd. – which makes IQ tests, in addition to polling and petition apps – says Facebook “abused its power in ways that were fraudulent, oppressive and malicious” by cutting off the companies access to an automated data crawling feature and sending users to links that insinuated Profile Technology produced “spammy” and “unsafe” products.

Over the years, Profile Technology had aggregated 400 million member profiles, which translated into 15 billion connections across the digital spectrum.

Profile technology swears they were unexpectedly shut down by Facebook after the parties couldn’t agree on a contract. Now, here’s where things get a little foggy. At first, Facebook spokespeople said they never had an agreement with Profile Technology. The app company says the opposite; according to them, 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 methods, caused the company to lose business and industry respect.  Specifically, the plaintiffs are alleging that:

  1. Facebook published statements asserting that “links” (HTML hyperlinks) to Plaintiffs’ site at “” 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 is demanding a jury trial. In addition to defamation, the app development firm is also suing for breach of contract, interference with business relationships, defamation and unlawful, unfair and fraudulent business practices.

Can You Sue Someone For Saying You’re A Spammer?

Back in the day, defamation lawsuits were of the old-skool variety — politicians calling each other names in public and religious luminaries being offended by adult entertainment moguls. But the more tech-y we get, the more Internet-related defamation lawsuits we see.

And yes, these days, being labeled a spammer could do some serious damage to your business. Many judges and juries are starting to reflect their understanding of that reality by handing down verdicts in favor of the defamed party. Now, in the United States, truth is a strong defense against defamation. As such, it’s important for online marketers and businesses to review the CAN-SPAM Act to ensure they aren’t, technically, spammers.

If you’re in need of an online defamation lawyer, get in touch. 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,, Kelly / Warner has earned a reputation for being one of the top online defamation law firms in the industry. Contact us today to begin the conversation.

Anonymous Online Commenting & Temporary Restraining Orders

temporary-restraining-ordersEver wonder if it’s legal to comment anonymously on the Internet while at work? Can the HR department find out it’s you? How about someone you’re trolling on the Internet. Are there avenues you can use to find out who they really are in order to get a temporary restraining order issued? Two netizens found out the answers to those questions recently.

State Employee Reprimanded For Anonymous Online Comments

Bill Eggler is a New York State employee. It was uncovered that Mr. Eggler used the pseudonym Sophia Walker to “opinionate” online. Unfortunately for Eggler, he did it during “company” time. Specifically, he took to the Web and used his online handle to defend the actions of one of his party members. Doing so was considered unethical and Eggler was reprimanded for the act.

While you may not work for the government, most companies have very specific rules about acceptable Internet conduct while at the workplace – or on work-provided machines. So, when you are handed that giant package from the HR department, read it! The company’s Internet law policies are probably in that packet, and knowing them could save you series headaches in the future.

Woman Files For Restraining Order Against Alleged Online Stalker

Not all anonymous Internet posting stories, however, are of the “bad news” variety. Take for example, Carla Franklin. For years, Mr. Franklin was dealt the unlucky hand of having an online stalker, whom she said built online “shrines” for her.

After getting a court order to have Google reveal the identity of her harasser, she was able to successfully get a temporary restraining order against him; but it was set to expire on October 29th of this year. Now, she’s suing him. A win for Franklin in this case could be a significant one 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, contact us. We’re a legal practice with considerable experience in these types of cases, and we’ve helped hundreds of people in most all of the 50 states. Get in touch today to learn your legal options.


Retrieved October 1, 2012

Retrieved October 9, 2012

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.