Email Marketing | Non-Compliance with CAN-SPAM Can Be COSTLY!

So many businesses now rely on email marketing to help generate traffic and revenue. However, failure to comply with the rules set forth in the CAN-SPAM Act could be financially ruinous!

The Federal Trade Commission (“FTC”) explains that the CAN-SPAM Act “is a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations.”  Just how tough of penalties you ask?  Try penalties up to $40,654for each separate email, found to be in violation!

Uneducated businesses owners, trying to save a buck by doing email marketing for themselves in lieu of a more traditional professional service, may very well unknowingly send out emails that are in violation of the rules set forth by the CAN-SPAM Act.  In fact, in spite of the connotation that might stem from its name, CAN-SPAM doesn’t just apply to email messages that are sent in bulk – you know, like what you would normally think of as “SPAM.”  The rules under the CAN-SPAM Act apply to ALL commercial email messages that are for the primary purpose of commercial advertisement or promotion of a commercial product or service.  Even emails that are to a former customer, maybe announcing a new product or service, has to comply with the CAN-SPAM Act rules….or else…potential OUTRAGEOUS penalties.  Let’s assume that you email 100 former customers; those emails were not compliant with CAN-SPAM, and assuming maximum penalties would be awarded against you, that would be $4,065,400!  Yes, you read that right.

THE MATH:  100 (non-complying emails to people) x $40,654 (the maximum penalties for violation) = $4,065,400.

Fortunately the rules are not all that difficult to comply with and the FTC’s website has provided a Compliance Guide for Business.  The basics include the following:

  1. Don’t use false or misleading header information.
  2. Don’t use deceptive subject lines.
  3. Identify the message as an advertisement.
  4. Tell recipients where you are located.
  5. Tell recipients how they can opt out from receiving future email from you.
  6. Honor opt-out requests right away.

One other key thing to remember is EVEN IF you rely on someone else to do mass email marketing for you, YOU ARE STILL RESPONSIBLE!  You cannot turn a blind-eye to your advertising communications and expect to go unscathed if those communications do not comply with the law.

It is always a good idea to get a formal legal opinion on these kinds of matters if in doubt. If you are in the state of Arizona, and are seeking assistance with ensuring that your marketing emails, are in compliance with the CAN-SPAM Act, be it ones you created yourself or if you want to double check what your marketing vendor is doing,  Beebe Law, PLLC can help!  Contact us today.

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  

So You Want to Run a Website: Common Risks When Hosting Third-Party Content

It seems like EVERYONE today has a website.  Whether it be a personal blog to a full scale business – websites are how people “find” and often “interact” with you today.  However, just like any business, it doesn’t come without risk.  This article will address a few of the most common areas where a website operator can incur liability if they want to host third-party content (i.e., you want to allow people to post and/or comment on postings).

To begin with, as I have referenced in my prior articles regarding Troubles with Defamatory Online Reviews and Content ScrapersThat Would be Harsher Punishment for internet Defamers StanWhy Google De-Indexing May NOT be an Effective Reputation Management Solution, etc., at least in the United States, the federal law often referred to as the Communications Decency Act, aka Section 230 or the “CDA” generally immunizes websites from third-party content.  In layman’s terms, this means that an internet service provider, such as a website, is not typically liable for content written by a third-party.  That does NOT, however, mean that you don’t have to be cautious.  In fact, the intricacies of the law surrounding the CDA can be quite complex.  It would be tragic for an unsuspecting business to be sued into bankruptcy over preventable little mistakes.

The following are a few common areas of potential liability:

INTELLECTUAL PROPERTY:  Intellectual Property, including claims of Copyright and Trademark Infringement are NOT barred by the Communications Decency Act.  If a third-party puts content on your website that infringes on someone else’s Copyright or Trademark, you could be held liable.

DEVELOPING CONTENT:  Depending on how you solicit and/or edit a third-party’s content you could be held liable.  Many of plaintiffs have argued against website’s editorial decisions or even what sort of requirements/fields are built in for website users to enter information into, can take them outside of the protections of the CDA.

If you are considering starting up a new website or a business with an existing website it is wise to take these matters into account at the very beginning, or as soon as otherwise practicable.  Moreover, individuals and businesses are wise to consult an internet lawyer that practices in internet law when beginning to lay out their business plan for their website.  A consultation fee now can save you THOUSANDS in the long run.

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.  If you are in the state of Arizona, and seeking consultation in the area of infringement relating to Copyright, Trademark, or other risks associated with being a website and hosting third-party content, contact Beebe Law, PLLC today.

 

 

 

 

Website Terms of Service: You Are Responsible for Your Own Actions

In my practice I write and review website terms of service with some regularity.  Most website Terms of Service have sections that relate to a users online conduct; that is, the rules that the website expects you follow when using their website.  If you don’t read anything else (because let’s fact it, unless you LOVE fine print, you probably aren’t going to read it) you absolutely should review the section that discusses what conduct is expected of you.  If you aren’t going to follow the rules don’t use the website.

Yes, this sounds like a no-brainer, right?  You’d think so, however, you would be fascinated to learn how many people don’t pay attention to these things and then, when they get busted breaking a Terms of Service rule, they come back and try to blame the website for the rule!  Um, no.  How about you try taking some responsibility for your own actions?  Yeah, let’s try that.

WHAT DO THE TERMS OF SERVICE SAY ABOUT MODIFICATION OR REMOVAL OF CONTENT?

Many websites will allow users to post content and then edit or remove the postings at a later date.  Consider sites like Facebook for example.  Other websites will give you only the ability to delete postings, but not edit, as seen with sites like Twitter.  At the same time many websites will not allow a user to edit or remove information once it is posted, regardless of the circumstances.

I typically see these no-removal rules often with complaint/review styled websites and this information is usually spelled out in the Terms of Service and, in some cases, elsewhere on the website.  Why would a website make such a rule?  Some websites claim that the reason they have a no removal policy, especially on a review/complaint type website, is because those websites believe that people will be bullied into taking truthful content down when the public really should be warned about bad actors or bad businesses.  I suppose the websites figure that if they have a rule against removing content, it doesn’t do the bad actors or bad businesses any good to harass the poster because the information is going to remain up anyway.  Yes, I know this opens Pandora’s Box for the “but what if…” statements and I know well the arguments against such non-removal rules, but I will not engage in that here because I’d be writing a dissertation and I’m trying to keep on topic and make this relatively short.

TERMS OF SERVICE:  WHY YOU SHOULD CARE.

Unfortunately, from my perspective, most people don’t care about these kinds of things and go on there merry way using a website, posting content, etc, – until they are threatened with litigation over something they posted.  Defamation is against the law and is actionable.  Most websites will make you agree, per their terms of service, that you will not do anything illegal.  They might even spell out that you have to tell the truth if you are posting a complaint or review.  Unfortunately, people either can’t read, don’t know what “truth” means, or otherwise don’t give a crap because they write stupid stuff anyway.  If you say something mean and untruthful online about someone else or someone else’s business – there is a possibility that you will see a defamation action against you.  Heck, even if what you say is truthful, you still could see a defamation action against you.  It’s the way the world these days – people sue over the most ridiculous stuff! Yes there are defenses to such claims, like the truth, however, if you use an attorney, it’s going to be legal battle that you will have to fund.

Typically a person considering litigation is going to go the easiest route and ask the person who posted the information to simply remove it.  If the person posted the information to websites like Facebook or Twitter, chances are one can just log into their account, edit or delete the content at issue, and be done with it.  HOWEVER, what happens when you posted the content to a website that specifies, right in their terms of service, that you can’t remove the posting?  If that is the case, chances are, that content isn’t coming down – even if you ask and regardless of the situation.

DON’T BLAME THE WEBSITE FOR YOUR MISTAKE.

Now we are getting to the ironic part.  A person will use a website, knowingly break the rules (such as posting false and defamatory stuff) and then, when they get a letter from a lawyer or a lawsuit against them, all of the sudden get concerned about what they wrote and will try to figure out how to take it down.  It’s like when you’ve been speeding, know you were speeding, and act all surprised when you get pulled over by a cop and quickly try to make an excuse for why you were speeding – as if that is going to somehow change the fact that you broke the law by speeding.  When an author gets a letter from a lawyer about a posting online the first thing they do is try to take it down.  In some instances they can remove the content…but that doesn’t always work as I explained above.  It amazes me how many people will write to a website asking for their stuff to be removed even when the terms of service, and the fact that someone can’t remove something after it was posted, was made abundantly clear before they made the posting.  When they get told “no” somehow that comes as a shock.  What happens next, in my experience, is one or any combination of the following:

  1. Excuses of why they wrote what they did.  The whole I was mad/sad/hurt shouldn’t have done it story.  This is what I call fools remorse.
  2. Allegations that “someone else” wrote it. People will literally allege that their “minor child” wrote the sophisticated well written posting about a business dealing. Uh huh, sure they did…and way to throw your kid under the bus.
  3. Stories of how the author/user of the website is “special.”  Most people that claim “special circumstances” aren’t all that unique when compared to anyone else.  I know your momma thinks you are special – but a website probably isn’t going to think so.
  4. Statements of “I wrote it.  It’s false…so you HAVE to take it down!”  No, actually the website doesn’t (at least under current federal law) and are you basically admitting that you breached the contract with the website that said you wouldn’t post something that is false?  Hmmm, that doesn’t seem like a very smart argument.
  5. I’m going to sue you if you don’t take it down!  Cool story – the current law doesn’t support your position and you are making yourself look like ass.  By the way, those terms of service that you agreed to by using the website or otherwise “checking the box” saying you agreed – yeah, that’s called a contract.

I wish I was making this stuff up but I have literally seen all of these kinds of excuses/stories made by people who are getting into trouble for what they posted online.  If you are one of THOSE people – you deserve to get into trouble.  The most ridiculous position that one can take is to be mad and blame a website for having known consequences to a rule THAT YOU BROKE.  That’s like being mad at the law makers who created the speed limit when you get into trouble because you broke the law by speeding!  No one made you speed.  Own the problems that you create.

Bottom line; read the Terms of Service before you use a website.  If you break the rules (especially if you are a harasser or defamer) don’t get mad at the websites for having the rules and consequences (that you failed to consider when you broke the rules) applied to you.  You have to own and accept responsibility for your actions – regardless of how hard of a pill that is to swallow. 

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

Texas Court Paving the Highway for Abuse of Anonymous Authors’ Rights One Pre-Litigation Discovery Order at a Time: Glassdoor v. Andra Group

The United States has long held close to its heart the right for authors to speak anonymously.  However, protecting an anonymous author is getting more and more difficult these days.  The March 24, 2017 ruling by the Appellate Court for the Fifth District of Texas in Glassdoor, Inc., et al. v. Andra Group, LP certainly didn’t help either.

In my practice I see volumes of subpoenas sent to websites holding third-party anonymous content requesting the anonymous author’s identifying information.   Most of the time Plaintiffs file a John or Jane Doe defamation related litigation, which preserves the statute of limitations, and then they conduct limited discovery in order to ascertain who the proper defendants are and move forward from that point.  Typically, most states have some sort of notice requirement to the anonymous author that would provide them the opportunity to appear and defend their right to remain anonymous.  In the state of Arizona we have the controlling case of Mobilisa v. Doe, 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24 (App. 2007).  It’s common for websites to raise objections on behalf of an anonymous author when the appropriate basic standards have not been met and, as I recently discussed in another article regarding Glassdoor, courts are ruling that websites like Glassdoor have the standing for the same.  This process, including giving author notice in a reasonable way, has always seemed fair to me.

Unfortunately, there seems to be a loophole that many Plaintiffs are taking advantage of, and it can be problematic for anonymous authors and websites alike.  I think that pre-litigation discovery tools (Illinois Rule 224, Texas Rule 202, etc.) are being abused in cases dealing with anonymous authors.   While I firmly believe that purposeful defamers and harassers should have the book thrown at them (i.e., fines, community service and/or educational requirements), often times the burdens on the plaintiff are not that high, it may not require notice to the author, and once an anonymous author’s information is revealed you can’t un-ring that bell.  I believe that pre-litigation discovery tools need either a very high threshold, have a notice requirements like that of Mobilisa or, alternatively, be barred in cases where a party is utilizing it to seek anonymous author information.

In this case Andra filed a Rule 202 petition against Glassdoor seeking to discover the anonymous reviewers’ identities relating to some ten (10) allegedly defamatory postings made about it.  Glassdoor, along with two (2) of the anonymous authors, filed an anti-SLAPP dismissal motion.  The trial court denied the motion and granted in part the Rule 202 petition which basically allowed Plaintiff to take the deposition of Glassdoor (even though claims against Glassdoor were not anticipated) regarding two (2) of the anonymous postings, not written by Glassdoor nor either Doe 1 or Doe 2, and was going to limit the deposition to five specific statements within those reviews.  Glassdoor and the anonymous authors understandably appealed the trial court’s ruling.

The Appellate court then skipped over the whole concept of anonymous free speech when it justified the trial court’s order by stating that “[k]nowing the reviews’ contents alone did not tell Andra [plaintiff] whether it had viable claims against the anonymous reviewers” and that “Andra also needed to know not only the reviewers’ relationships with Andra to evaluate potential defensive issues such as substantial truth.”  See Memorandum, p. 7.  Yeah, you read that right.  The balancing test on pages 8-10 are equally problematic and even through the trial court limited the deposition of Glassdoor to a handful of statements the author(s) of the selected statements still didn’t necessarily have notice nor necessarily the opportunity to appear and defend.  Even more troubling is the statement by the Court “[b]ut Rule 202 does not require a petitioner investigating a potential claim to show a probable right in relief on the merits.”  See Id, pg. 12.  Say what?  So a Rule 202 petition can be a BS fishing expedition, not give notice to an author of the BS fishing expedition, require a website to extend time and resources to sit for a BS fishing expedition and/or raise all defenses that may otherwise lie with the knowledge of an author, and that is all okay?  Who made up this batch of Koolaid?  How can the Court not see how this is paving the highway for abuse by plaintiffs?

You can review the entire Memorandum Opinion here: 

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Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

 

 

Why Google De-Indexing May NOT be an Effective Reputation Management Solution.

What reputation management companies should know, defamation lawyers probably already know, but clients either aren’t being warned about or the clients are willing to try it anyway…

So your client comes in and complains that someone defamed them on the internet.  You put on your Super Lawyer cape and rush in to save the day.  No problem, you’ll walk through the litigation, get a court order that tells Google to remove, block or otherwise de-index the content from their search engine and, viola!  Problem solved, right?  WRONG.

While I sort of eluded to these issues in my blog article troubles with defamatory online reviews and content scrapers, just because search engines like Google will agree to de-index (which arguably, at least in the United States, they are under no obligation to do thanks to Section 230 of the Communications Decency Act) doesn’t mean that the content goes away.  Indeed, it remains alive in many ways:

  1. The complaint that you filed, which contained the alleged defamatory language and or copies of the alleged defamatory postings is STILL part of the public court record and, in theory, always will be – most of which is accessible online;
  2. The website that hosts the alleged defamatory content may refuse (rightfully under the current US laws) to remove the content regardless of whether or not it is found to be defamatory;
  3. Google might “de-index” but they pretty much give people a road map on where to find the information via the Lumen Database and provide, where applicable, the supporting documents like a court order which, if people are smart and interested, they can find more information about the litigation through court records; and
  4. Under most privilege laws, one could write a story about the court case, even repeating verbatim the defamatory language right out of the court record, without penalty.

Indeed, if you search out a particular name in Google, and you see, at the bottom of the search results a statement about the matter having been removed from the search engine links, chances are, someone had information removed for some reason.  Typically a link to the Lumen Database is provided by Google and parties can click on that link to learn more about why the information was removed and what links were subject to being removed from the search results.

Depending on the situation, this “de-indexing” may not even last that long.  All a website has to do, if they were so inclined, is to update the URL and that would render the original URL de-index essentially useless.  The party who submit the information would then have to go back and try again by either getting another court order or resubmitting what they have to Google again – but then it could become a game of whack-a-mole and for what? The information is STILL available anyway.

I completely understand wanting to find a solution for relief for those that have genuinely been harmed online but I think there needs to be a shift from trying to bury and cover things up to providing A LOT more education regarding these issues (why people should be leery of what they read online, ways to not get themselves into these problems in the first place, constructive ways of handling issues) and perhaps, as I said recently, come up with harsher punishment for internet defamers.

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.

 

Should websites be able to raise objections on behalf of their anonymous users? A California Appellate Court thinks so – Glassdoor v. Superior Court (Machine Zone, Inc.)

While I sometimes think that the California courts can get things wrong, e.g. Hassell v. Bird (2016) 247 Cal.App.4th 1336, rev. granted, (thank goodness) they also, in my opinion, can get things right.  On March 10, 2017, the Sixth Appellate Court for Santa Clara County, California in the matter of Glassdoor, Inc. v. Superior Court of Santa Clara County (Machine Zone, Inc.), under Case No H042824, concluded that Glassdoor  (a website in which workers can post their own reviews about past or current employers) has standing, i.e, the authority, to assert an anonymous user’s interest in maintaining his anonymity against Machine Zone’s efforts to compel Glassdoor to identify him/her.  Can I get a fricken hallelujah!

Clearly I am elated by this ruling.  This is not only good for people who write honest reviews but also for websites that allow third parties to post content on their websites.  In my line of work I have seen parties file claims against anonymous authors sometimes alleging causes of action that wouldn’t even stand up to basic case analysis of the statute of limitations let alone anything more complicated like ensuring they have met the requirements that are necessary under state law in order for a website to release and anonymous author’s identifying information.  These parties will then submit their subpoena or some form of discovery order to a third-party website like Glassdoor and demand production of the identifying author information.  If the website’s subpoena compliance department is lead by anyone like me, chances are they have an entire checklist of criteria for their respective state that must be met prior to production.  Here in Arizona the controlling law is Mobilisa v. Doe (App. 2007) 217 Ariz. 103, 114-15, 170 P.3d 712, 723-24.  Mobilisa requires that a requesting party show: 1) that the anonymous author has been given adequate notice and a reasonable opportunity to respond to the discovery request (which itself has specific requirements that have to be adhered to); 2) that the requesting party’s cause of action could survive a motion for summary judgment on the elements of the claim not dependent on the identify of the anonymous author (and that requires more than laying out a mere prima facie case); and 3) a balance of the parties’ competing interests needs to favor disclosure.  Indeed, Mobilisa sets out some hoops that requesting parties have to jump through in order to try and protect the rights of an anonymous author and if requesting parties don’t conform, chances are that subpoena is going to be met with objection.

While I haven’t seen it all that often, I can think of a few instances where counsel was met with my objections and they tried to argue that the website lacked standing to raise such objections.  Typically I find this to be the biggest cop out – nothing more than an effort to circumvent the rules – especially when they are met with legitimate objections like statute of limitations or failure to meet other requirements.  Many websites, like Glassdoor, will fight this if challenged and I’m pleased to see this outcome.

Absolutely the anonymous author has their rights and can assert them on their own behalf but there are many reasons why an author may not stand up and defend.  What if the author doesn’t get notice of the matter?  I have personally seen some suspicious activities going on in the past and UCLA Law Professor Eugene Volokh and Public Citizen Litigation Group attorney Paul Alan Levy have helped raised awareness about many of the same concerns that I have had.  Take for example their Washington Post article which discusses “Dozens of suspicious court cases, with missing defendants, aim at getting web pages taken down or deindexed.”  What if the author lacks the knowledge to even understand that they have a defense?  The minute that a lawsuit gets filed defendants tend to get scared – especially if they are not in a solid financial position.  It’s not uncommon for an author to stand behind their story but fear the litigation and so they bury their head in the sand in hopes that the matter will “go away.”  They may not even consider the fact that they have a defense.  It’s not as if many people have legal knowledge -even the basics – and legal departments of websites can’t be giving people legal advice.  What if the author told the truth and cant afford a defense?   Here again I am aware of a situation where a person wrote a review – alleged that the story was truthful, but got sued in another state over the posting and couldn’t afford to appear and defend the situation in the other state.  How is that justice?  I’m sorry ma’am/sir – your right to free speech is only to the extent your pocket book can pay for a defense?  

Now I’m not suggesting that websites take on the litigation defense of all of their users – that would not be economically feasible.  Websites usually have no unique knowledge that would put them in a position to argue truth as a defense or anything like that.  However, I think websites who want to help protect their anonymous authors should have the ability to stand up to those who may be simply trying to take advantage of an anonymous author’s vulnerabilities through basic objections.  If you are making claims that are so far outside the statute of limitations it isn’t even funny, OBJECTION.  You’re case couldn’t stand on it’s own anyway.  If you aren’t following the correct process under the applicable law to ensure that an author has the appropriate notice and reasonable opportunity to defend, OBJECTION.  You can always attempt to cure the deficiencies and try again.  If you can’t – well, then you probably don’t have much of a case in the first place.  It’s a whole lot easier for a website’s legal department or subpoena compliance department to look at a situation and say “Nope, try again…” or “Nope, not happening…” than it is for a user to try and teach themselves the law or hire expensive counsel (face it – even the cheap attorneys aren’t “cheap”) to teach them the law and make the same objections on their behalf – within a short period of time.

I am so glad that the Glassdoor court recognized some of these issues and considered the potential for chilling effects on free speech.  As the Court points out in Glassdoor, “…some attacks on anonymity may be mounted for their in terrorem effect on potential critics.” Glassdoor at p.12.  This is a fantastic ruling and you can review the entire 33 page ruling below or by clicking HERE.

Until next time friends…

Statute of Limitations is a real thing and why you, a client, should understand it.

In the last couple of weeks I have seen an increasing amount of demand letters threatening litigation or actual lawsuits based on alleged claims that are far outside of the statute of limitations.  A statute of limitations is the law which defines a period of limitation for bringing certain types of legal actions.  Most statute of limitations are between one (1) year and six (6) years depending on the claim.  When a lay person doesn’t know and sends the demand letter or files the complaint I can kind of understand that.  Some people don’t even think about things like that.  While ignorance of the law isn’t a real excuse, it is often looked at with a softer lens by many.  When it is an attorney who does this kind of stuff – I’m sorry, it’s absolutely not excusable.  Indeed, I have seen MANY attorneys make this mistake and it upsets me – not only because it makes other attorneys in the profession look bad but I also feel for the attorney’s client who probably paid for that mistake because they didn’t know better.

An attorney should not be taking a client’s hard earned money to draft a meritless demand letter or complaint!  If your attorney is worth their weight in salt they will spend the time necessary to do the research and will be honest and tell you when your case has no merit… not just take your money and set YOU up for failure.  In fact, such conduct isn’t in line with the Professional Rules of Conduct.  While states typically have their own rules of professional conduct, also known as the Rules of Ethics, it is pretty clear that the American Bar Association’s Model Rules of Professional Conduct, Rule 3.1, says this kind of crap is a no-no.  See the pertinent excerpt below:

Advocate
Rule 3.1 Meritorious Claims And Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law…

It seems that the moment someone feels wronged  in some way someone, that person’s first line of thinking tends to be  “I’m gonna sue!”  I see that written and posted online all over the place or hear it in general conversation.  The problem is there are indeed times when you don’t have the legal standing to sue.  Some of the first questions to your attorney should include:

  1. What kinds of claims might I have given my situation?
  2. What are the applicable Statute of Limitations to those claims?
  3. Are any of my claims within those Statute of Limitations?
  4. Are there any viable exceptions to those Statute of Limitations?

If the answers regarding question nos. three and/or four above is “NO” then don’t ask your attorney to draft a demand letter threatening legal action for those claims and certainly don’t ask them to draft a complaint anyway.  Similarly, don’t let your attorney talk you into drafting a demand letter threatening litigation or actually filing a  meritless complaint.  You will only be footing the bill to fail – and filing fees, process server fees, and the time that your attorney will charge you to draft the bogus letter or complaint will only hurt YOUR pocket book.  And, to add salt to the wound, there is a chance that the Defendant could turn around and sue both you, and your attorney, for malicious prosecution.  It happens…and you could end up paying for not only your attorney’s fees BUT the attorneys’ fees of the other party as well.

Long story short – know the statute of limitations for bringing claims and don’t waste time and resources on frivolous demand letters and complaints.  It will save you a lot of time, money and other resources in the end.

If you are in Arizona, and have questions about statute of limitations for a particular claim in Arizona, feel free to contact me.

 

 

Fighting Fair on the Internet – Part 9 |Troubles with Defamatory Online Reviews and Content Scrapers

Content scrapers are problematic for authors, defamation plaintiffs and website operators alike.

There is no doubt that there is typically a clash of interests between authors, defamation plaintiffs and the operators of websites who host public third-party content.  Authors either want the information to stay or be removed; defamation plaintiffs want information removed from the website(s); and website operators, such as many of the online review websites, fight for the freedom of speech and transparency – often arguing, among many other things, that the information is in a public court record anyway so removal is moot.  These kinds of arguments, often surrounding the application of federal law know as the Communications Decency Act, or Section 230 (which arguable provides that websites don’t have to remove content even if it is false and defamatory) are playing out in courts right now.  One example is the case of Hassell v. Bird which is up on appeal before the California Supreme Court relating to a posting on Yelp.  However, in spite of these clashes of interests, there does seem to be a trend emerging where the author, the plaintiffs, and the websites, are actually standing in the same boat facing the the same troublemaker.

Providing some background and context…

COPYRIGHT AND POSTING AN ONLINE REVIEW:  Many people are familiar with the term “copyright” and have a basic understanding that a copyright is a legal right that is created by the law that gives the creator of an original work limited exclusive rights for its use and distribution.  Wikipedia has some decent general information if you are interested in learning more.  For example, a guy who I will call John for the purpose of this story, can get on a computer and draft up a complaint about Jane and her company XYZ  before he posts it online on a review website.  As it sits on John’s computer as written, John would own the copyright to that information.  When John decides to post it online to a review website, depending on the website’s terms of service John may have assigned his copyright rights to the website in which he was posting on.  So either John or the website may own the copyright to that content.  That point is important for a few reasons, and there are arguments for and against such an assignment, but those issues are for another article some other time.

DEFAMATORY POSTING IS PUBLISHED ONLINE:  Continuing with the story, let’s say that John makes a bad call in judgment (because he hasn’t sat through one of my seminars relating to internet use and repercussions from the same, or hasn’t read my article on not being THAT guy, and doesn’t realize how bad doing this really is) and decides to post his false and defamatory posting about Jane and XYZ to an online review website.  It’s totally NOT COOL that he did that but let’s say that he did.  Now that posting is online, being indexed by search engines like Google, and anyone searching for Jane or XYZ might be seeing John’s posting.

WHAT TO DO WITH THE DEFAMATORY POSTINGS:  The internet tends to work at lightening speed and John’s post is sure to be caught on to by Jane or by someone who knows Jane or her company XYZ.  As an aside, I always recommend that people and businesses periodically, like once a month, run searches about themselves or businesses just to see what pops up.  It’s just a good habit to get into because if there is a problem you will want to address it right away – especially you think it is false and defamatory and want to take legal action because there are pretty strict statue of limitations on those – in many states only providing one year from the date of publication.  When Jane learns of the posting, maybe she knows who John is by what was said in the posting – and maybe she isn’t sure who posted it – but either way chances are she is likely going to seek legal help to learn more about her options.  Many people in Jane’s position will want to threaten to sue the website…but it’s actually not that simple.  Why?  Because unless the website actually contributed to writing the stuff, which they most likely didn’t, then they can’t be held liable for that content.  That’s the law here in the United States – the Communications Decency Act.  Fortunately, while online defamation is a niche area of law, there are many attorneys who are well versed in online defamation around the country that are able to assist people who find themselves in this kind of a situation.

So by now you are probably wondering how in the world a defamed party and a website could both be standing in the same boat.  I promise I am getting there but I felt the need to walk through this story for the benefit of those who don’t work in this field and have little to no clue what I am even talking about.  Baby steps…I’m getting there.

A FIGHT FOR REMOVAL:  As I pointed out in the beginning, arguably under the law, websites don’t have to remove the content even if it is found by a court or otherwise to be false and defamatory and that leaves plaintiffs in an awkward position.  They want the information taken down from the internet because it’s alleged to be harmful.  What can be done all depends on the website the content is on.

REPUTATION MANAGEMENT:  Many people think that reputation management is the way to go.  However, while reputation management can be helpful in some instances, and I’m not trying to knock those legitimate companies out there that can definitely help a company with increasing their advertising and image online, many find it only to be a temporary band-aid when trying to cover up negativity.  Similarly, in some cases, some reputation management companies may employ questionable tactics such as bogus DMCAs or fake Court Orders.  Yes, those situations are real – I actually just presented on that topic to a group of internet lawyers less than two months ago and I caution anyone who is using or considering a reputation management company that guarantees removal of content from the internet.

A WEBSITE’S INTERNAL POLICING:  The same law that protects websites from liability for third-party content is the same law that encourages self policing by providing for editorial discretion on what to post and not post.  As such, some websites have taken their own proactive approach  and created their own internal policing system where, depending on the circumstances and what was written, the website might find that the posting violated their terms of service and, within their discretion, take some sort of action to help a victim out.  Not every website has this but it’s certainly worth checking into.

COURT ORDERS:  Remember, a website, arguably per the law, doesn’t necessarily have to take a posting down regardless of what the court order says.  Shocking, but this has been found to be true in many cases around the country.  So what do websites do?  Here are a few scenarios on how websites might consider a court order:

  • Some websites will, without question, accept a court order regardless of jurisdiction and remove content – even if it is by default which can mean that the defendant didn’t appear and defend the case.  It’s worth while to note that some people won’t appear and defend because: 1) they never got notice of the lawsuit in the first place; 2) they didn’t have the knowledge to fight the case themselves; and 3) they didn’t have the resources to hire an attorney to fight the case – let’s face it – good lawyers are expensive!  Even cheap lawyers are still expensive.
  • Some websites will remove a posting only if there is some sort of evidence that supported the court order – like the defendant appeared and agreed to remove or even if there is a simple affidavit by the author who agrees that the information is false and is willing to remove it.
  • Some websites will only redact the specific content that has been found to be false and defamatory by the court based on evidence.  This means that whatever opinions or other speech that would be protected under the law, such as the truth, would remain posted on the website.
  • And still, other websites won’t event bother with a court order because they are out of the country and/or just don’t give a crap.  These types of websites are rumored to try and get people to pay money in order for something to be taken down.

COURT ORDER WHACK-A-MOLE WITH SEARCH ENGINES LIKE GOOGLE:  One of the biggest trends is to get a court order for removal and send it in to search engines like Google for de-indexing.  What de-indexing does is it removes the specific URL in question from the search engine’s index in that particular country.  I make this jurisdictional statement because countries in the European Union have a “Right to be Forgotten” law and search engines like Google are required to remove content from searches stemming from Europe but, that is not the law in the US.  The laws are different in other countries and arguably, Google doesn’t have to remove anything from their searches in the US.  Going back to our story with John, Jane and company XYZ, if Jane manages to litigate the matter and get a court order for the removal of the URL to the posting from search engine index, then, in theory, Jane’s name or company wouldn’t be associated with the posting.

Now this all sounds GREAT, and it seems to be one of the better solutions employed by many attorneys on behalf of their clients, BUT there are even a few problems with this method and it becomes a game of legal whack-a-mole:

  1. A website could change the URL which would toss it back into the search engine’s index and make it searchable again.  The party would either have to get a new court order or, at least, submit the court order again to the search engine with the new court order.
  2. If sending the Court Order to Google, Google will typically post a notice to their search results that a search result was removed pursuant to a court order and give a link to the Lumen Database where people can see specifically what URLs were removed from their index and any supporting documentation.  This typically includes the court order which may, or may not, include information relating to the offending content, etc.  Anyone can then seek out the court case information and, in many cases, even pull the subject Complaint from online and learn exactly what the subject report said and learn whether or not the case was heard on the merits or if the case was entered by default or some other court related process.  Arguably, the information really isn’t gone fore those who are willing to do their homework.
  3. The first amendment and many state privilege laws allow the press, bloggers, etc. to make a story out of a particular situation so long as they quote exactly from a court record.  No doubt a court record relating to defamation will contain the exact defamatory statements that were posted on the internet.  So, for example, any blogger or journalist living in a jurisdiction that recognizes the privilege law, without condition on defamation, could write a story about the situation, post the exact content verbatim out of the court record as part of their story, and publish that story online, inclusive of the defamatory content, without liability.

The up-hill battle made WORSE by content scrapers.

With all that I have said above, which is really just a 10,000 foot view of the underlying jungle, poor Jane in my example has one heck of an up-hill battle regarding the defamatory content.  Further, in my example, John only posted on one review website.   Now enter the content scrapers who REALLY muck up the system causing headache for authors, for defamation plaintiffs, and for website providers like review websites.

CONTENT SCRAPERS:  When I say “content scrapers,” for the purpose of this blog article, I am referring to all of these new “review websites” that are popping up all over who, to get their start, appear to be systematically scraping (stealing) the content of other review websites that have been around for a long time and putting it on their own websites.  Why would anyone do this you ask?  Well, I don’t know exactly but I could surmise that it: 1) content helps their rankings online which helps generate traffic to their websites; 2) traffic to a website helps bring in advertising dollars to the ads that are running on their websites; and 3) if they are out of country (which many appear to be outside of the United States) they don’t really give a crap and can solicit money for people who write and ask for content to be taken down.  I sometimes refer to these websites as copycat websites.

CONTENT SCRAPERS CAUSE HEADACHES FOR AUTHORS:  Many people have their favorite review website that they turn to to seek out information on – be it Yelp for reviews on a new restaurant they want to try, TripAdvisor for people’s experience with a particular hotel or resort, or any other online review websites…it’s a brand loyalty if you will.  An author has the right to choose which website they are willing to post their content on and, arguably, that decision could be based in part on the particular website’s Terms of Service as it would relate to their content.  For example, some websites will allow you to edit and/or remove content that you post while other websites will not allow you to remove or edit content once it is posted.  I’d like to think that many people look  to see how much flexibility is provided with respect to their content before they chose which forum to post it on.

When a copycat website scrapes/steals content from another review website they are taking away the author’s right to choose where their content is placed.  Along the same lines, the copycat websites may not provide an author with the same level of control over their content.  Going back to my John, Jane and XYZ example, if John posted his complaint about Jane on a website that allowed him to remove it at his discretion, it’s entirely possible that a pre-litigation settlement could be reached where John voluntarily agreed to remove his posting or, John decided to do so on his own accord after he cooled down and realized he made a big mistake posting the false and defamatory posting about Jane online.  However, once a copycat website steals that content and places it on their website, John not only has to argue over whether or not he posted the content on another website but also may not be able to enter into a pre-litigation settlement or remove it at his own direction.  In fact, there is a chance that the copycat website will demand money in order to take it down – and then, who knows how long it will even stay down.  After all the copycat website doesn’t care about the law because stealing content is arguably copyright infringement.

CONTENT SCRAPERS CAUSE HEADACHE FOR DEFAMATION PLAINTIFFS:  As discussed within this article, defamation plaintiffs have an up-hill battle when it comes to pursuing defamation claims and trying to get content removed from the internet.  It almost seems like a losing battle but that appears to be the price paid for keeping the freedom of speech alive and keeping a level of transparency.  Indeed, there is value to not stifling free speech.  However, when people abuse their freedom of speech and cross the line online, such as John in my example, it makes life difficult for plaintiffs.  It’s bad enough when people like John post it on one website, but when a copycat website then steal content from other review websites, and post it to their website(s), the plaintiff now has to fight the battle on multiple grounds.  Just when a plaintiff will make headway with the original review website the stolen content will show up on another website.  And, depending on the copycat website’s own Terms of Service, there is a chance that it won’t come down at all and/or the copycat website will demand money to have the content, that they stole, taken down.  Talk about frustrating!

CONTENT SCRAPERS CAUSE HEADACHE FOR REVIEW WEBSITES:  When it comes to online review sites, it’s tough to be the middle man…and by middle man I mean the operator of the review website.  The raging a-holes of the world get pissed off when you don’t allow something “over the top” to be posted on their website and threaten to sue – arguing you are infringing on their first amendment rights.  The alleged defamation victims of the world get pissed off when you do allow something to get posted and threaten to sue because well – they claim they have been defamed and they want justice.  The website operator gets stuck in the middle having zero clue who anyone is and is somehow supposed to play judge and jury to thousands of postings a month?  Not that I’m trying to write myself out of a job but some of this stuff gets REALLY ridiculous and some counsel are as loony as their clients.  Sad but true.  And, if dealing with these kinds of issues wasn’t enough, enter the exacerbators, i.e, the copycat websites.

To begin with, website operators that have been around for a long time have earned their rankings.  They have had to spend time on marketing and interacting with users and customers in order to get where they are – especially those that have become popular online.  Like any business, a successful one takes hard work.  Copycat websites, who steal content, are just taking a shortcut to the top while stepping on everyone else.  They get the search engine ranking, they get the advertising dollars, and they didn’t have to do anything for it.  To top it off, while the algorithms change so often and I am no search engine optimization (SEO) expert, I suspect that many of the original websites may see a reduction in their own rankings because of the duplicative data online.  Reduced rankings and traffic may lead to a reduction in revenue.

I like to think that many website operators try hard to find a happy medium between freedom of speech and curtailing over the top behavior.  That’s why websites have terms of service on what kind on content is allowed and not allowed and users are expected to follow the rules.  When a website operator learns of an “over the top” posting or other situation that would warrant removal or redaction, many website operators are eager to help people.  What is frustrating is when a website feels like they are helping a person only to get word days later that the same content has popped up elsewhere online – meaning a copycat website.  In some instances people wrongly accuse the original website for being connected to the copycat website and the original website is left to defend themselves and try to convince the person their accusations are inaccurate.  There is the saying of “no good deed goes unpunished” and I think that it is true for website operators in that position.

As the new-age saying goes “The Struggle is Real!”

I don’t know what the solution is to all of these problems.  If you have kept up with this Fighting Fair on the Internet blog series that I have been working on over the past year, you know that I REALLY disapprove of people abusing the internet.  I support the freedom of speech but I also think that the freedom of speech shouldn’t give one a license to be a-hole either.  I don’t know that there is a bright line rule for what content should and should not be acceptable…but as Supreme Court Justice Potter Stewart said in Jacobellis v. Ohio back in 1964 to describe his threshold for obscenity, “I know it when I see it.”  For me, after having seen so much through work and just in my own personal life, I think that is true.  My hope is that if I keep talking about these issues and hosting educational seminars and workshops in effort to raise awareness perhaps people may join my mission.  I firmly believe that we can ALL do better with our online actions…all we need is a little education and guidance.

Until next time friends…

 

Fighting Fair on the Internet – Part 7 | Freedom of Speech – the Double Edged Sword

If you’ve been keeping up with this Fighting Fair on the Internet blog series you know I believe that: the Internet sucks (well, it can suck); we as a society have lost the human connection and mannersopinions are like poop (we need more courtesy flushes); no one really likes the person who crosses the line onlinewords DO hurt; and that my hope is that people can dig down and make America KIND again…and that really goes for the rest of the world caught up in the three-ring circus without a ring-master that is life.  This of course begs the question: what is the root cause of the problem?  I could run a poll of 1,000 different people and I suspect I could get 1,000 different answers to that question.  So let’s look at one concept:  Freedom of Speech.

I know this is a huge topic and there is no way I could touch on all aspects but recently a situation occurred that made me look at both sides of the freedom of speech coin.  Sure, I have thought about it a lot – especially given the nature of my line of work – but this was different.  You know, the funny thing about freedom of speech is that rarely does one dislike it unless and until something is said or written negatively about them or it otherwise provokes negative emotions within.  And, I suppose it goes without saying, that what one person finds offensive will often not be the same, at least to the same degree, as the next person.  I believe that each person and their perspectives are shaped by their unique set of circumstances in life – upbringing, religion, education, and personal life experiences.  For example, one who may have been brought up in a family where there was domestic violence in the home may have a much deeper and more passionate emotion on the subject than one who didn’t have such trauma in their life growing up.  Someone could joke about it to someone that hasn’t experience it and it may come across funny.  However, the same joke to the person who has experienced it may not find it so funny.  The thing is, there really is not a “bright line” rule and therefore leaves a lot of room for disagreements.

Let’s look at freedom of speech in a social context:  Typically if something is said more generally – it’s likely to be less offensive to an individual.  Someone might say “I don’t like the president!” and while some people may disagree with that opinion they are not likely to take it personally.  That’s because  it’s not about them personally.  But what happens when criticism is directed towards a specific individual?  I don’t know a single person that likes criticism of any kind.  True, some people take criticism better than others but still, even constructive criticism, can take a toll on one’s emotional well-being depending on how the information is presented.

I don’t think Newton’s Third Law: “For every action there is an equal and opposite reaction” applies only to motion.  Think about kids on the playground; one kid says something mean or does something mean to another kid, the first reaction, right or wrong, for the kid on the receiving end is to do something mean back – whether it be harsh words or physical violence.  The internet has, in many respects, become a giant sandbox full of bratty little children – except, most people interacting online aren’t “children.”  Someone expresses their negative opinion, or worse – maybe makes up some kind of total BS, about someone online and then what happens?  The person who got called out, out of hurt feelings and anger, will likely come up with something equally as mean, or worse, back.  It’s like a perpetual fight that never seems to end, and, worse yet, the playground fight is online, for all to see, FOREVER.  Then what sets in is the fools remorse that I talk about in my presentations and briefly in my article that speaks on the topic of crossing the line online…and many times there isn’t much that can be done about it.  You can’t un-ring a bell.

Final thoughts:  Be careful with your words in person, and especially online.  It’s okay for you exercises your free speech right to voice your opinion about things, but if you do it about someone specifically, right or wrong, you should be prepared and understand that there is a good chance that the person who you wrote about may exercise their freedom of speech, possible with “playground tactics,” to come back with the same, or even worse, reaction.  And remember, not all opinions are created equal.  Sometimes it’s okay to give an opinion a “courtesy flush.

Until next time friends.

 

 

Clicking the “I Have No Idea What This Says” Button

Understanding the basic differences between Browse-wrap and Click-wrap Agreements

Welcome to the age of technology…where everything you do is pretty much online!  You meet people online, you keep up with loved ones online, you post comments online, download software online, you purchase  online, etc.  For every website platform you interact with there should be some sort of Terms of Service (TOS) or Terms and Conditions (TAC) that you will have to agree to.

So yeah, that little box that you checked quickly so that you could move on and see more information, or download your favorite song, etc., that stuff is the important stuff that you just AGREED TO that NO ONE ever really reads.  Well, except for maybe a few of us contract lovers and people looking for the “easter egg” of comical interruption alleged to be contained within the long winded legal mumbojumbo.  Turns out, at least in my experience, those allegations are fake.  Rarely do I see any humor in contracts.  I know…so BORING!

There are typically two different types of agreements – the Browse-wrap and Click-wrap.

THE CLICK-WRAP AGREEMENT

The more common agreement, the click-wrap agreement (also referred to as a “clickthrough” agreement or a “clickwrap license”), is the one that I generally referenced above.  It’s the agreement that actually requires you to take some sort of action, like clicking on an unmarked box, to show that you agree to the terms set forth by the website or platform.  If you think about it, the website is literally placing the website’s TOS right into your hands (for reading) and asking you to acknowledge the agreement by “clicking the box” or whatever other form that assent may come in.  If you want to refuse the agreement (who does that?) then one would cancel or  close the window to the subject website.  Courts typically uphold these kinds of agreements so remember when you are clicking you are probably entering into a legally binding contract.

THE BROWSE-WRAP AGREEMENT

Your browse-wrap agreement (also called a browserwrap or a browse-wrap license) is the other version.  Generally your browse-wrap agreement is located somewhere on the website; usually seen as a hyperlink at the bottom of the page to the TOS or TAC.  There is no “clicking” to manifest their agreement to the website’s terms.  The idea behind this is that by a person’s mere use of the website they agree to the websites terms.  Courts have been reluctant to uphold these types of agreements UNLESS the user has agreed to the terms.

BELT AND SUSPENDERS

Most websites these days, especially where they are interactive, will have BOTH a click-wrap agreement and a browse-wrap agreement tied to their website.  This is done so that the website can inform users of their website’s TOS/TAC but also, for legal contracting purposes, to aid in enforce-ability of those terms.  Contracts, in order to be upheld, require mutual manifestation of assent.

If you are a website owner, you want to be sure that your agreements are protecting your interests and you should consider seeking legal counsel on the matter if you have any questions.  Beebe Law, PLLC is an Arizona based law firm representing clients in the state of Arizona.