Section 230 Protects Users Too – Monge v. Univ. of Pa.

One of the rarely discussed points, in the grand scheme of Section 230 chatter anyway, is the fact that Section 230 not only protects various interactive internet platforms, but it also protects users, just like you and me, on the various Internet platforms from third-party content. For example, if you’re an administrator/moderator of some random Facebook group … generally speaking, Section 230 protects you from legally actionable content that other users post in that group. Just like the interactive Internet platforms, you, as a user of the platform, also get some protections. This is also true, as this case will underscore, if you share an article via email that is alleged to be defamatory. Given the ease and frequency that people like to share information that they don’t necessarily read let alone fact check for themselves, you’d think this would be front and center in more discussions when trying to teach people that Section 230 isn’t all about protecting “big tech”.

To be clear, the fact that Section 230 protects users too isn’t just something determined by the courts through case law, but is something actually spelled out right in the language of the statute itself.

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
47 U.S.C. § 230(c)(1) (emphasis of bold and italics added)

The below information is based upon the information provided in the court opinion. I have no independent knowledge about the facts of this case.

Plaintiff: Janet Monge

Defendant: University of Pennsylvania, Deborah Thomas, et al.

HIGH LEVEL OVERVIEW

A University of Pennsylvania faculty member, Dr. Deborah Thomas, shared an article that allegedly defamed Dr. Monge via a list serve to an organization that Dr. Monge is a member of. Obviously upset about the situation Dr. Monge filed a lawsuit for claims of defamation, defamation by implication, false light, and civil aiding and abetting against defendants, including Dr. Thomas. Dr. Thomas filed a Fed. R. Civ. P., Rule 12(b)(6) motion to dismiss for failure to state a claim for which relief can be granted arguing that 47 U.S.C. § 230(c)(1) immunizes her from liability. The court agreed with Dr. Thomas and dismissed the action, with prejudice, i.e., dismissed those claims permanently.

THE LEGAL WEEDS

It is almost funny to say “legal weeds” here because this was an easy Section 230 win. The Court stated “[c]ourts analyzing and applying the CDA have consistently held that distributing, sharing, and forwarding content created and/or developed by a third party is conduct immunized by the CDA” and then goes on to cite six cases supporting this position relating to content that was shared in an internet chat room, via email, and other technologies. The Court similarly dismissed Dr. Monge’s “material contribution” argument, suggesting that Dr. Thomas materially contributed to the alleged defamatory statements by including her own commentary in the email forwarding the articles. The Court’s rationale was that Dr. Thomas “did not add anything new to the articles, or materially modify them, when she shared them via email, so she did not materially contribute to the alleged defamation. The Court again cited to multiple cases supporting this point. Based upon these points, the Court rightfully concluded “Dr. Thomas’s conduct of sharing the allegedly defamatory articles via email is immune from liability under the CDA.”

SUMMARY OF THOUGHTS

As mentioned before, this was an easy Section 230 win. Ironically, this is also one of those instances where you see a Plaintiff upset about the content of something end up making the matter a bigger deal by filing a lawsuit where now you have legal academics talking about the situation which is a prime example of the Streisand effect. I can understand in general why Plaintiffs want to set the record straight when they believe false information has been put out about them. On the other hand, if you’re going to take it to court, it is important to realize that such action often shines a lot of light on an issue that you might rather have just kept to a smaller audience.

Citation: Monge v. Univ. of Pa., Case No. 22-2942 (E.D. Pa. March 10, 2023)

DISCLAIMER: This is for general information purposes only. This should not be relied upon as formal legal advice. If you have a legal matter that you are concerned with, you should seek out an attorney in your jurisdiction who may be able to advise you of your rights and options.

February 28, 2023 Anette B.

Newsweek’s 12(b)(6) failed in defamation case – Boone v. Newsweek

I have never understood the point of news publications including images in their articles/publications that aren’t actually story or incident related. This is especially true when they are reporting critically about specific individuals. I get it, images help with clicks and drawing attention but that’s what stock photos or massively cropped photos are for. Nevertheless, according to the statements in the Court’s opinion, Newsweek made a decision to do just that which resulted in, without surprise, a defamation and false light case against them.

The below information is based upon the information provided in the court opinion. I have no independent knowledge about the facts of this case.

Plaintiff: James Boone

Defendant: Newsweek, LLC, et al. (related entities)

HIGH LEVEL OVERVIEW

Newsweek, an online news organization, published a story about a a police officer who was accused of racially profiling a man in a restaurant. Rather than posting an image of the officer that was being accused of the profiling, Newsweek chose to embed a photo of a police officer, who was apparently identifiable by partial face, nametag and badge number, that had nothing to do with the headline and story. Allegedly, as a consequence, Boone and his family received texts, emails and messages via social media inquiring about the article under the impression that he was involved resulting in Boone having to seek police protection. Boone’s lawyer wrote to Newsweek alerting them to the issue and asked that “appropriate measures [be taken] to mitigate the harm.” For whatever reason, Newsweek apparently didn’t respond. Consequently, Boone filed a lawsuit against Newsweek for defamation and false light in the United States District Court, Eastern District of Pennsylvania.

Newsweek then filed a motion to dismiss, under Fed.R.Civ.P., Rule 12(b)(6) [failure to state a claim] arguing that Boone failed to plead enough facts to support a reasonable inference that Newsweek acted with “actual malice.”

A LITTLE INTO THE LEGAL WEEDS

In this particular instance, Boone is considered a public-figure. “To prevail on a defamation case, the First Amendment requires that public-figure plaintiffs plead-and later, prove, that the defendant acted with ‘actual malice.'” Contrary to most lay persons belief, and as the court explains “‘[a]ctual malice’ is a term of art that does not connotate ill will or improper motivation” rather it means that the “publisher acted ‘with knowledge that [the allegedly defamatory statement] was a false or with reckless disregard of whether it was false or not.” When breaking it down further, the term “reckless disregard” means “that the defendant in fact entertained serious doubts as to the truth of the statement or that the defendant had a subjective awareness of probable falsity.”

The “actual malice” standard is a pretty high bar to recovery. It can be even higher when you’re considering, as here, not a direct false statement but when there is alleged defamation by implication. In this instance “[Boone] has to show that [Newsweek] “either intended to communicate the defamatory meaning or knew of the defamatory meaning and was reckless in regard to it.” This inquiry is subjective in nature which requires that “some evidence showing, directly or circumstantially, that the defendants themselves understood the potential defamatory meaning of their statement.” Obviously, false implications are capable of being defamatory.

Here Boone would need to prove that “Newsweek knew the implication that Boone was involved in [the subject incident] or was reckless about that falsity” and that “Newsweek either intended to convey the false impression that Boone was involved in [the subject incident], or knew that publishing the photograph would likely convey the false impression that Boone was involved in [the subject incident] but recklessly published it anyway.” While the Court discusses some other things, the Court here took issue with the fact that Boone’s badge number and name tag were visible in the photograph. The Court stated:

“The fact that the photograph depicted Boone’s nametag and badge number therefore gives rise to a reasonable inference that Newsweek (1) knew that Boone was not involved in the [subject] incident or acted in reckless disregard of that fact, and (2) knew that publishing the photograph would likely convey the false impression that Boone was involved in the [subject] incident but recklessly published it anyway.”

Because there was a “reasonable inference that Newsweek acted with actual malice” the Court denied the motion to dismiss the defamation claim. With respect to the false light claim, which also requires the finding of actual malice, the Court similarly denied the motion to dismiss.

FINAL THOUGHTS

Defamation litigation can be part of the “cost of doing business” when you are in the news publication business. That said, this was, in my opinion, easily avoidable. I’m not sure if there was a failure to have full legal review done before the publication was published, or if someone didn’t take the demand letter from Boone’s attorney seriously … but Newsweek, with the limited information we’re presented with anyway, appears to have had two opportunities to avoid this litigation and they didn’t take advantage of either. The first would have been to train reporting and editing staff to not use unrelated images, especially of identifiable people, in news reporting efforts. This should be a no-brainer, but given how often I see that happen in news publications, I’m not surprised. The second would have been to acknowledge the mistake and simply change out the picture to something more appropriate … you know, like an image of the actual officer being accused in the article … when they received notice that there was an issue. Doubling down on something like this seems like an unnecessary risk … that has now resulted in costly litigation. Maybe Newsweek has a huge litigation budget … but even then, you’d think that they’d want to use it a little more wisely.

Citation: Boone v. Newsweek, LLC, Case No. 22-1601, E.D. Pa, Feb. 27, 2023)

June 4, 2022June 4, 2022 Anette B.

Anti-SLAPP Laws Without Mandatory Award of Fees and Costs is a Hinderance to the Access to Justice and Chills Free Speech

Arizona recently passed a new anti-SLAPP law, 2022 Ariz. HB 2722 (it’s not in effect yet and won’t be for a few months at least) and while a colleague of mine and are are working on a more comprehensive discussion about anti-SLAPP and this new law specifically (which I will link here once done and/or you can always follow me here or on various social media to get the latest) as I was writing the initial draft of that article this week I became more and more frustrated. Anti-SLAPP laws without a mandatory award of attorneys fees and costs to the prevailing party of such motion is a hindrance to the access to justice for real victims of SLAPP suits and chills free speech. How? Let me elaborate.

I should preface this with the fact that I spent the better part of a decade working as in-house counsel of an interactive online forum and I’ve pretty much seen it all when it comes to true victims sharing their honest stories (and being threatened because if it) and bad actors using the Internet as a source of revenge (where people are desperate to make the harassment stop and to remove untruthful, hurtful, information from the platform). As such, my opinion is through a lens of having heard countless stories from all sides.

Generally speaking (obviously there are always outliers) those who lawfully criticize wrongdoers, especially online, do so because they don’t have the means to file suit regarding the experience that led to the criticism. Complaining online is their remedy. If those being criticized are powerful and/or wealthy, it’s really easy to say “Take that content down or I’ll sue you.” Many Americans are living paycheck to paycheck, but even if they are comfortably above that, they often cannot afford to be sued. Just look at how long it took to get through the Depp/Heard case. Granted, that was where two parties were heavily pushing back on who was right … but this is not unlike many civil cases. In fact, the behaviors exhibited in that court room and on display for the watching world to see is not all that unusual for litigating parties. The only difference there is that it was televised and people care enough about celebrity dirt to watch the case unfold on live television/online streaming.

But if you aren’t a celebrity or wealthy individual … if you cannot afford to fight back through expensive lawyers, even if you’re in the right … what do you do? Chances are you begrudgingly remove the content to save your own pocket book, or worse, lose a legal action and end up with a, albeit by default, judgment against you if you cannot, for whatever reason (and there are many reasons) don’t appear in a case. Ahh, yes … the threat of a SLAPP suit is indeed a huge and powerful sword.

But what happens if you cannot remove the content because the website’s terms of service prohibit it, or such posting has been scraped and put up elsewhere such that you do not have control over it? Oh yes, this happens all the time online. People don’t read Terms of Service and unfortunately, copy cat websites scrape content that isn’t theirs. In this instance, chances are, you will get sued anyway. Why? Because it’s worth it for the wealthy/powerful to try to get a court order to remove the content from the internet and they can’t do that without a suit. After all, many platforms will honor court orders for content removal even if they are obtained by default.

And in a lot of ways, this makes sense. Especially when bad actors/defamers hide behind anonymous accounts and/or are in foreign countries that make pursuing the perpetrator cost prohibitive or near impossible for real victims. Real victims need relief and this is one such pathway to remedy. On the other hand, for the truth tellers, it can be hard to stand up to wealthy/powerful bad actors when faced with a lawsuit. Those who speak up honestly can get the short end of the stick. If a suit is filed, and they can’t afford to defend against it, are they to be victimized yet again by default? I know it happens. I’ve seen it happen. Let me give you an example.

Imagine with me for a moment that you are a business owner of a new start-up company called Cool Business, LLC operating in Arizona, and you want to engage the services of a advertising company. Your friend, Tim, gives you the name of Great Advertising Co. based out of New York. A New York advertising company sounds fancy and you think they will probably do a far better job than anyone here in little Arizona so you reach out to them. The conversation goes great, they send you a basic contract to sign for the work to be done for Cool Business, LLC and require a $6,000.00 deposit so they can get started on the work and another $4,000.00 in 90 days for a total contract of $10,000.00 over three months. You skim the agreement, gloss over the headings of the boilerplate terms (because they’re all the same, right?), sign it and send them the $6,000.00. Everything goes great at first, but months into the relationship, and dozens of calls later, you realize that Great Advertising Co. is flakey. They aren’t delivering the services on time, there is always an excuse for why the work isn’t done, but when the 90 days hits, they still ask for their additional $4,000.00 pursuant to the contract. The business relationship at this point has soured. Great Advertising Co. demands their additional $4,000.00 under the contract, which you refuse to pay, and you instead demand a refund of your $6,000.00. Great Advertising Co. refuses to refund you the $6,000.00. Pissed off, you take your story to your favorite business attorney in Arizona and she reviews your contract and advises you that while you may have a breach of contract claim, the terms of your contract say that you agree to litigate any matters stemming from the agreement in a court in New York and that because the contract is with Cool Business, LLC that you’d have to hire a lawyer, in the state of New York, to handle the matter for you because businesses have to be represented by a lawyer in the court that you’d have to file in. Knowing that New York lawyers can be very expensive, you decide it’s not worth the hassle and to cut your losses. Understandably being upset, however, you take to the Internet to tell everyone you know how, truthfully, Great Advertising Co. ripped you off and you explain in detail what happened. You post your reviews to Google, Yelp, Facebook and any other place you can find to help spread the word about these unscrupulous business tactics and you leave it at that. Ten months later you receive a letter from a Great Advertising Co.’s New York lawyer telling you that you need technically still owe the $4,000.00 under the contract and that Great Advertising Co. doesn’t appreciate the negative reviews and demands that you immediately remove them or they will file a lawsuit against you for defamation. You ignore the letter because you know that you have a good breach of contract case and the First Amendment on your side because what you said was 100% the truth and you know, after talking to your favorite defamation attorney a few years back, you know that the truth is a defense to a claim of defamation. A day prior to the one year anniversary of your pissed off customer online posting tirade you are served with a complaint, based out of New York for defamation. You’ve watched the Johnny Depp and Amber Heard defamation trial. You saw how long that case was drug out and you know that you don’t have the funds to pay an attorney to fight for your rights in New York. You didn’t even have the funds to hire a New York attorney to bring a breach of contract case against Great Advertising Co. to try and get your $6,000.00 back. As such, feeling defeated, and without talking to your favorite defamation attorney again, you just ignore the complaint. You figure, what’s the worst that can happen. Great Advertising Co. obtains a default judgment against you individually with an order to take down the content and the judge awards $2,500.00 in damages.

Now, this entire hypothetical, while obviously facts have been changed and such, is based off a true story of what one individual experienced and how these types of situations can go south in a hurry. There are countless similar stories just like this out there. Good folks are victimized not just once, by the initial acts, but twice in some instances like in this hypothetical. But this is where good anti-SLAPP laws come into play.

Anti-SLAPP laws are designed to fight back against those who file lawsuits just to try and silence their critics, but without the promise of attorney fees and costs for the work, victims of little means are hard pressed to find lawyers willing to help (hence the hinderance to access to justice). The sad truth is that most lawyers (like most professions) cannot afford to work for free – being a professional is expensive and it’s not getting any cheaper. When anti-SLAPP laws include such fee provisions, it’s a lot easier for attorneys to consider taking on a SLAPP case, with low or no money down, case because they know they will get paid when they win. This is of course presuming it’s a deep pocket that filed the SLAPP in the first place because the reality is a judgment is only worth one’s ability to collect.

When anti-SLAPP laws fail to include such provisions, there is little deterrent to filing a SLAPP suit. Yes, if the little person being picked on has means, maybe they will think twice but that’s not often the case and the SLAPP filers know, and bank on, the litigation causing financial hardship or stress so that the truth teller will simply give in to the demands to remove the content prior to even answering the complaint, thus chilling truthful speech. It’s a powerful tactic. If it wasn’t, there wouldn’t be so many states with anti-SLAPP laws trying to curb such problems in the first place.

As many legal practitioners are painfully aware, it can be very difficult to get a judge to award attorneys fees and costs absent it being statutorily required. So even if you fight against a SLAPP suit, and win, you could still be out tens of thousands of dollars (or more depending on the case) with no guarantee of recovery. As an attorney, when you have to tell potential clients this, you can see the defeat in people’s faces before you even get going. It’s scary. What average person has tens of thousands of dollars laying around to pay to a lawyer to fight for their First Amendment right to free speech?

Would those odds make you excited about standing up for yourself? I think not. If you knew all this, would you be so willing to share with the public honest information about bad actors and you personal experience? I think not.

And this doesn’t just go for complaining consumers, but also for investigative journalists. If you think a random, but bigger company, going after an unhappy customer who got ripped off is bad and complained about it is bad … imagine what a powerful elite will try to do to an investigative journalist trying to uncover some very serious dirty laundry and expose it to the world?

Bottom line, for any anti-SLAPP law to be a true shield, among other things, it must contain, at minimum, a statutory award of attorney fees and costs.

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

#firstamendment #defamation #antiSLAPP #legislation #accesstojustice

January 20, 2019January 20, 2019 Anette B.

The Ugly Side of Reputation Management: What Attorneys and Judges Need to Know

Once upon a time, not so long ago, there was no such thing as the Internet. Information and news came from your local newspaper, television, or radio channel. Research was done in good old fashioned books, often at your local school, university or public library. If the content you were seeking was “old” chances are you had to go look at microfiche. For those that are young enough to have no clue what I’m talking about, watch this video. Then BOOM! Along came the internet! Well, sort of. It was a slow work in progress, but by 1995 the internet was fully commercialized here in the U.S. Anyone else remember that horrible dial up sound followed by the coolest thing you ever heard in your life “You’ve got mail!“?

As technology and the internet evolved so did the ease of gathering and sharing information; not only by the traditional media, but by every day users of the internet. I’ve dedicated an entire series of blogs called Fighting Fair on the Internet just to the topic of people’s online use. Not every person who has access to the internet publishes flattering content (hello Free Speech) nor do they necessarily post truthful content (ewww, defamation). Of course, not all unflattering content is defamatory, so it’s not illegal to be a crap talker, but some people try to overcome it anyway. Either way, whether the information is true or false, such content has brought about a whole new industry for people and businesses looking for relief: reputation management.

Leave it to the entrepreneurial types to see a problem and find a lucrative solution to the same. While there are always legitimate ethical reputation management companies and lawyers out there doing business the right way (and kudos to all of them)…there are those that are, shall we say, operating through more “questionable” means. Those that want to push the ethical envelope often come up with “proprietary” methods to help clients which are often sold as removal or internet de-listing/de-indexing techniques that may include questionable defamation cases and court orders, use of bogus DMCA take down notices, or “black hat” methods. In this article I am only going to focus on the questionable defamation cases that result in an order for injunctive relief.

BACKGROUND: QUESTIONABLE DEFAMATION CASES AND COURT ORDERS

UCLA Professor, Eugene Volokh and Public Citizen litigation attorney, Paul Alan Levy, started shedding public light on concerns relating to questionable court orders a few years ago. In an amicus brief, submit to the California Supreme Court in support of Yelp, Inc. in Hassell v. Bird, Volokh offered his findings to the court discussing how default proceedings are “far too vulnerable to manipulation to be trustworthy.”

As the brief says:

Injunctions aimed at removing or deindexing allegedly libelous material are a big practice area, and big business….But this process appears to be rife with fraud and with other behavior that renders it inaccurate. And this is unsurprising, precisely because many such injunctions are aimed at getting action from third parties (such as Yelp or Google) that did not appear in the original proceedings. The adversarial process usually offers some assurance of accurate fact finding, because the defendant has the opportunity and incentive to point out the plaintiff’s misstatements. But many of the injunctions in such cases are gotten through default judgments or stipulations, with no meaningful adversarial participation.

The brief further pointed to seven (7) different methods that plaintiffs were using to obtain default judgments:

(1) injunctions gotten in lawsuits brought against apparently fake defendants;
(2) injunctions gotten using fake notarizations;
(3) injunctions gotten in lawsuits brought against defendants who very likely did not author the supposedly defamatory material;
(4) injunctions that seek the deindexing of official and clearly nonlibelous government documents – with no notice to the documents’ authors – often listed in the middle of a long list of website addresses submitted to a judge as part of a default judgment;
(5) injunctions that seek the deindexing of otherwise apparently truthful mainstream articles from websites like CNN, based on defamatory comments that the plaintiffs or the plaintiffs’ agents may have posted themselves, precisely to have an excuse to deindex the article;
(6) injunctions that seek the deindexing of an entire mainstream media article based on the source’s supposedly recanting a quote, with no real determination of whether the source was lying earlier, when the article was written, or is lying now, prompted by the lawsuit;
(7) over 40 “injunctions” sent to online service providers that appear to be outright forgeries.

Well, isn’t that fun? Months after the brief was filed in Hassell, Volokh published another article with the title “Solvera Group, accused by Texas AG of masterminding fake-defendant lawsuits, now being sued by Consumer Opinion over California lawsuits.” What was clear from all of this is that website owners who have been victims of the scheme are likely watching and the authorities are too. The US Attorney Generals office in the District of Rhode Island and the State of Texas both took interest in these situations…and I suppose it is possible that more will be uncovered as time goes on.

So how are these parties getting away with this stuff? With the help of unscrupulous reputation management companies, associated defamation attorneys…and, unfortunately, trusting judges. Some judges have taken steps to correct the problem once the issue was brought to their attention. As for the attorneys involved, you have to wonder if they were actually “duped” as this Forbes article mentions or do they know what they are doing? Either way, it’s not a good situation. This isn’t to necessarily say that every attorney that is questioned about this stuff is necessarily guilty of perpetrating a fraud upon the court or anything like that. However, it should serve as a cautionary warning that this stuff is real, these schemes are real, clients can be really convincing, and if one isn’t careful and fails to conduct appropriate and precautionary due diligence on a client and/or the documents provided to you by a client…it could easily be a slippery slope into Padora’s box. After all, no one wants to be investigated by their state bar association (or worse) for being involved with this kind of mess.

Yes, there have been lots of great articles and discussion shedding light on the subject but the question then becomes, how do you tell the difference between a legitimate situation and a questionable situation? The answer: recognize red flags and question everything.

RED FLAGS THAT SHOULD CAUSE YOU PAUSE

In December of 2016 I had the pleasure of traveling to Miami, FL for the Internet Lawyer Leadership Summit conference to present, for CLE, on multiple topics including this subject. At that time I provided the group with some “red flags” based upon information I had then. Since that time I have gained an even greater knowledge base on this subject simply by paying attention to industry issues and reading, a lot. I have now compiled the following list of cautionary flags with some general examples, and practical advice that, at minimum, should have you asking a few more questions:

RED FLAGS FOR ATTORNEYS

If the entity or person feeding you the “lead” is in the reputation management industry. You want to do some due diligence. You could be dealing with a total above board individual or entity , and the lead may be 100% legit, BUT the industry seems to consist of multiple “companies” that often lead back to the same individual(s) and just because they are well known doesn’t necessarily mean they are operating above board. Do your homework before you agree to be funneled any leads.
If the client is asking you to make some unusual adjustments to your fee agreement. Your fee agreement is likely pretty static. If the client is requesting some unusual adjustments to your agreement that make you feel uncomfortable, you might want to decline representation.
If the client already has “all of the documents” and you don’t actually deal with the defendant. We all want to trust our clients, but as some counsel already experienced, just accepting what your client tells you and/or provides you as gospel without a second thought can land you in hot water. Consider asking to meet the defendant in person or have them appear before a person licensed to give an oath and check identification, such as a notary public of YOUR choosing to ensure the defendant is real and that the testimony that they are giving in the declaration or affidavit is real. You want to make sure everything adds up and communication by telephone or email may not protect you enough. When it comes to documents provided by the client, or the alleged post author, watch for the following:
- Ensure that the address listed on any affidavit or other document isn’t completely bogus. Run a search on Google – is it even a real address? For all you know you could be getting an address to the local train track.
- Ensure that any notary stamp on an affidavit is inconsistent with where the affiant purports to live. It will rarely make sense for an affiant list their address as, for example, Plains, New York but the notary stamp suggests the notary is based out of Sacramento, California. It will make even less sense if the affiant supposedly lives out of country, but is being notarized by a notary in the states.
- Ensure that the notary is actually a real notary. You can typically find record of notaries with the Secretary of State that the notary is in. Make sure they are a real person. If you really want to be sure that they actually signed your document, and that it wasn’t “lifted” from elsewhere (yay technology) check in with the notary and/or see if their records are on file somewhere publicly that you can check.
If the entity alleged to be the plaintiff isn’t actually a real entity in the state that they are purporting in the complaint to be from. If the plaintiff is supposed to be ABC Ventures, LLC out of San Diego, California, there should be a record of ABC Ventures, LLC actually listed, and active, on the California Corporation Commission website. The people that you are talking to also should, in theory, be the members/managers of such entity too. For example, if you are always talking to a “secretary” you might want to insist on a more direct contact.
If the person or entity listed to be the plaintiff isn’t actually listed in the subject URL in the complaint. If a plaintiff is going to bring a case, they should at least have standing to do so. You should be cautious of any plaintiffs that aren’t actually at issue or fails to have a valid direct connection that would give them standing to bring the claim.
If the subject post doesn’t contain any defamatory statements in the first place. Just because a post isn’t flattering doesn’t mean that it is actually defamatory. Similarly, public documents aren’t typically seen as defamatory either. Who is saying it is false? Why is the statement false? What evidence supports the allegation that it is false?
If the subject posting is outside of the statute of limitations for bringing claims in the state in which you intend on filing. Now I know that some may disagree with me, and there may be bar opinions in different states that suggest otherwise, however, if you are presented with a post that is outside of the statute of limitations to bring a claim for defamation, subject to the single publication rule, and there is no real reason for tolling (like it was held in a secret document not generally public – which pretty much excludes the items on the internet) that may be of concern to you. I wrote before on why statute of limitations is important, especially if you are the type to follow ABA’s Model Rules of Professional Conduct, Rule 3.1. Even here in Arizona the bar has raised in disciplinary proceedings, in connection with other infractions, concerns about bringing claims outside of the statute of limitations, citing a violation of ER 8.4(d). See generally, In re Aubuchon, 233 Ariz. 62 (Ariz. 2013).
If a case was filed in a wholly separate state from the Plaintiff and Defendant and you are asked to be “local counsel” to marshal documents to court or simply to submit it to a search engine like Google. It is not improbable that local counsel will be called to assist with basic filings or to submit an order to Google. It may be possible that such documents contain questionable materials. It’s always a good idea to review the materials and give it a heightened level of scrutiny before just marshaling them off to the court or search engine. This is especially true if the Plaintiff is no longer associated with prior counsel and is just looking for a different lawyer to help with this “one thing” as if a submission from an attorney bears more weight that anyone else submitting it.
If the plaintiff claims to already know who the author of a subject alleged defamatory post is, yet the post itself is anonymous. Yes, it is possible that based on an author’s content, and how much detail is placed in such post, that one might be able to figure out who the author is. However, in my experience, many authors tend to write just vague enough to keep themselves anonymous. If that is the case, without a subpoena to the content host, how does one actually know who the author is? Some states like Arizona have specific notice requirements for subpoenas that are seeing identifying user information which require notice being posted in the same manner, through the same medium, in which the subject posting was made. If a notice isn’t present on the website, there likely wasn’t a subpoena (assuming the website requires strict compliance with the law). Mobilisa, Inc. v. Doe, 170 P.3d 712, 217 Ariz. 103 (Ariz. App., 2007).
If the case was settled in RECORD TIME. Often these matters are being “resolved” within a few weeks to only a couple months. As most of us know, the wheels of justice are SLOW.
If the case is settled without any answers or discovery being done. This goes to my prior point about knowing who the real author is, or, for that matter, that the allegations in a subject post are even false.
If notice about the case was not personally served by a process server. Many states allow certified mailing for service. Do you really know who is signing that little green form and accepting service? Was some random person paid to sign that?

RED FLAGS FOR JUDGES (Consider all of the above generally plus the following)

If a Complaint is filed and shortly thereafter a stipulated judgment is presented requesting injunctive relief without the defendant ever actually making an appearance. This seems to be one of the more popular tactics. A way to curb this kind of abuse would be to hold a hearing where all parties must appear, in person (especially the named defendant signing the stipulation) before the court before any such injunctive order is signed and entered.
If an attorney files an affidavit of making a good faith attempt in order to locate the defendant but discovery was never conducted upon the hosting website. Many sites will respond to discovery so long as their state laws for obtaining such information (like Arizona’s Mobilisa case) is followed. Arguably, it is disingenuous for an attorney to say they have tried when they really haven’t. Chances are, the real author may not even know about the case and entering a default judgment under such circumstances deprives them of the opportunity to appear and defend against the matter.
If you order the parties to appear and then suddenly the case gets dismissed. It thwarts the scheme when the court requests the parties to appear. If this happens, in a defamation related case, it could be seen as a red flag. The plaintiff may very well try to dismiss the action and simply refile under a different plaintiff and defendant name but for the same URL that was originally filed in the prior dismissed action.
If the order for injunctive relief contains URLs that were not originally part of the Complaint. Sneaky plaintiffs and their counsel may attempt to include other postings, from the same or different websites, that are not really at issue and/or that were arguably written by other individuals. Make sure that the URLs listed on the order are all the same as what is listed on the complaint.
If the complaint contains a host of posts, with wide range of dates, and the syntax of the posts are different yet the plaintiff claims that it was written by the same person. In my experience, very rarely (though it does happen) will one person go on a binge and write a bunch of different posts about one person or entity. There are typically more than one author involved so if any statement to the alternative should raise a red flag.

Some journalists that have been tracking these kinds of matters think that these schemes may be nearing an end. I would like to think so, however, in my opinion these problems are far from over unless unsuspecting attorneys, judges, and even websites and search engines get a little more cautious about how they process these court orders for content removal, especially if they are older orders. I have already discussed why I thought search engine de-indexing isn’t necessarily a viable reputation management solution and in part that is because, arguably, at least for now, Section 230 of the Communications Decency Act bars injunctive relief, i.e., there is no obligation for websites to remove content anyway. If a platform or search engine decides to remove content or otherwise de-index content, at least here in the U.S., they are doing so based upon their own company policy…not some legal duty.

In a perfect world none of these issues would exist. Unfortunately, that’s not the world we live in and the best we can do is be vigilant. Hopefully, through this article, I have provided some food for thought for attorneys and judges alike. You never know when such a situation will arise.

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.

December 21, 2018December 21, 2018 Anette B.

“Internet Law” explained

For some reason, every time one says “lawyer” people tend to think of criminal law, family law or personal injury law. Perhaps because those are very common. Most people even understand the concept of a corporate or business lawyer, someone who handles trust and estates, or even one that handles intellectual property. However, when we say “Internet Law” many people get the most confused look on their face and say: “What the heck is that?” If that is you, you’re in good company. And, to be fair, the Internet really hasn’t been around all that long.

If you were to read the “IT law” page on Wikipedia you’d see a section related to “Internet Law” but even that page falls a little short on a solid explanation – mostly because the law that surrounds the Internet is incredibly vast and is always evolving.

When we refer to “Internet Law” we are really talking about how varying legal principles and surrounding legislation influence and govern the internet, and it’s use. For example, “Internet Law” can incorporate many different areas of law such as privacy law, contract law and intellectual property law…all which were developed before the internet was even a thing. You also have to think how the Internet is global and how laws and application of those laws can vary by jurisdiction.

Internet Law can include the following:

Laws relating to website design
Laws relating to online speech and censorship of the same
Laws relating to how trademarks are used online
Laws relating to what rights a copyright holder may have when their images or other content is placed and used online
Laws relating to Internet Service Providers and what liabilities they may have based upon data they process or store or what their users do on their platforms
Laws relating to resolving conflicts over domain names
Laws relating to advertisements on websites, through apps, and through email
Laws relating to how goods and services are sold online

As you can see just from the few examples listed above, a lot goes into “Internet Law” and many Internet Law attorneys will pick only a few of these areas to focus on because it can be a challenge just to keep up. Indeed, unlike other areas of law, “Internet Law” is not static and is always evolving.

Do you think you have an Internet Law related question? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC! We truly enjoy helping our business and individual clients and strive to meet and exceed their goals! 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.

September 10, 2018 Anette B.

From the #MoronFiles | Note to Dabblers: When in doubt, refer it out!

PRELUDE:

Without getting into too much detail, let’s just say that I see all kinds of crazy stuff in my line of work. Some of the things that come across my desk make me frustrated with society and you probably know that I blog about Fighting Fair on the Internet because of the things that I see. In addition, sometimes the things that I see that frustrate me include others that are part of my profession. Like any profession, there are certain shit bags (okay, maybe they aren’t all shitbags…just most of them) out there that give us lawyers a bad reputation and quite frankly, it pisses me off.

Some things that I see warrant a full blog article – so I write those. Others just warrant a short mention because I find the conduct both outrageous AND funny. I’ve decided to start a collection of true stories, with some identifying facts modified so I don’t have to deal with the psychos, and will be continually adding more of those to the #MORONFILES for your reading pleasure:

09/10/2018 #MORONFILES ENTRY:

If you are a lawyer and your website boasts that you are the top “insert any law practice not having to do with civil internet defamation matters here” and that is ALL that it is listed that you practice on your website…perhaps you should stick with what you know. More often than not, dabbling makes you look like an unprofessional asshole to those who do practice in the area you are dabbling in and you are really doing a disservice to your client. Don’t get me wrong, I’m all for learning new areas of law… I wouldn’t be doing what I am doing but for me learning new stuff…but I could do reasearch on my own and I also found mentors. And if you don’t have a mentor, you should be damn smart enough to conduct basic research first before you go sending your little nasty grahams. Have a leg to stand on for crying out loud! Be smart enough to know what you don’t know. When in doubt, refer it out!

So client gets a letter from a law firm, from a foreign jurisdiction (but not THAT foreign – like this country likes to cite to our case-law on occasion) that basically provides the run of the mill demand letter and threat of litigation if the client doesn’t comply. Sounds rather standard; so what’s the problem? This particular lawyer has not a f*cking clue what he/she is talking about. This is evident by the fact that they cited to a local statute that would ONLY make sense if it was filed some 2+ years ago…and if they applied to someone OTHER than this particular client. *Sigh*

I don’t care what area of law you practice in – claims have some sort of statute of limitations. If your law school education didn’t teach you that – go get your damn money back! It’s basic legal analysis 101. If you are going to make a demand, you should probably look that up first to see if your threat of litigation is going to make you look like a tool or not by being outside of the statute of limitations for the claim you are asserting. Now, I know that some attorneys argue that it is okay to bring a claim that is outside of the SOL and wait to see if the Defendant raises that defense. I do not subscribe to that kind of lawyering and some State Bar opinions are with me on this. Second, you should see if such liability actually even extends to the person/entity that you are threatening…and if your own jurisdiction didn’t just create some law that is totally opposite of the position that you are trying to pursue. Yeah, because I can do research too…and that happened here. *Asshat*

This is a prime example of a person/firm that I won’t forget…and it is a person/firm that I would NEVER refer anyone to…because they have already proven they don’t do necessary research to adequately advise a client. That is true of anyone who makes my #MoronFiles list (the list is getting longer by the day – though I don’t write about them all). This is why I think it’s important that clients and lawyers understand statute of limitations and other pertinent aspects that should be contemplated before sending such threats. It’s not just your client that is watching you (and that you could be harming by wasting their resources)…so are others in the profession. I remember who are above-board and who aren’t…and I’m happy to refer to colleagues in the space, even if they are opposite of a client of mine, if they show professionalism. To be clear, this isn’t the first of it’s kind…just felt like venting regarding this one today.

Until next time friends!

July 10, 2018July 11, 2018 Anette B.

Section 230 is alive and well in California (for now) | Hassell v. Bird

Last week, on July 2, 2018 the Supreme Court of California overturned rulings that arguably threatened the ability for online platform users to share their thoughts and opinions freely by ruling in favor of Yelp in the hotly contested and widely watched Hassell v. Bird case.

For those that aren’t familiar with the underlying facts, I offer the following quick background:

In 2014 a dispute arose between California attorney, Dawn Hassell and her former client, Ava Bird when Bird posted a negative review of Hassell on the popular business review site, Yelp. Hassell claimed that the content of the post was, among other things, defamatory and commenced an action against Bird for the same in the Superior Court of the County of San Francisco, Case No. CGC-13-530525. Bird failed to appear, and the Court entered a default order in favor of Hassell. There is question as to whether Bird was actually served. In addition, the court ordered Yelp, a non-party to the case who did not receive notice of the hearing, to remove reviews purportedly associated with Bird without explanation and enjoined Yelp from publishing any reviews from the suspected Bird accounts in the future. Yelp challenged this order, but the court upheld its ruling.

Hoping for relief, Yelp appealed the decision to the California Court of Appeal, First Appellate District, Division Four, Case No. A143233. Unfortunately for Yelp, the Appellate Court offered no relief and held that: Yelp was not aggrieved by the judgment; the default judgment which including language requesting non-party Yelp to remove the reviews from the website was proper; that Yelp had no constitutional right to notice and hearing on the trial court’s order to remove the reviews from the website; that the order to remove the reviews from Yelp and to prohibit publication of future reviews was not an improper or overly broad prior restraint; and that the Communications Decency Act (“CDA” or “Section 230”) did not bar the trial court’s order to remove the reviews.

The Appellate Court’s ruling was clearly contrary to precedent in California and elsewhere around the country. Yelp appealed the matter to the California Supreme Court, Case No. S235968, to “protect its First Amendment right as a publisher, due process right to a hearing in connection with any order that targets speech on Yelp’s website, and to preserve the integrity of the CDA” according to the blog post written by Aaron Schur, Yelp’s Deputy General Counsel. While Yelp led the charge, they were not left to fight alone.

The internet rallied in support of Yelp. Dozens of search engines, platforms, non-profit organizations and individuals who value the free sharing of information and ideas contributed amicus letters and amicus briefs (I co-authored an amicus brief for this case) in support of Yelp, including assistance from those like UCLA Law Professor and Washington Post contributor Eugene Volokh and Public Citizen Litigator, Paul Alan Levy, whose work spotlighted the ease in which bogus court orders and default judgments are obtained for the sole purpose of getting search engines like Google to de-index content. In case you are wondering, bogus court orders and false DMCA schemes are indeed a real problem that many online publishers face.

On April 3, 2018 the California Supreme Court heard oral argument on the case. On July 2, 2018 the Supreme Court released its 102 page opinion in a 3-1-3 decision (three on a plurality opinion, one swing concurring, and three dissenting via two opinions) holding that Hassell’s failure to name Yelp as a defendant, an end run-around tactic, did not preclude the application of CDA immunity. The court clearly stated “we must decide whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly. We believe the answer is no.” Based upon this win for the Internet, at least for now, online publishers in California (or those who have had this case thrown at them in demand letters or pleadings since the original trial and appellate court rulings) can breathe a sigh of relief that they cannot be forced to remove third-party content.

Aaron Shur made an important statement in concluding the Yelp blog post “…litigation is never a good substitute for customer service and responsiveness, and had the law firm avoided the courtroom and moved on, it would have saved time and money, and been able to focus more on the cases that truly matter the most – those of its clients.” It’s important in both our professional and personal life to not get stuck staring at one tree when there is a whole forest of beauty around us.

While this is indeed a win, and returns the law back to status quo in California, it does raise some concern for some that certain comments in the opinion are signaling Congress to modify Section 230, again (referring to the recent enactment of FOSTA). Santa Clara Law Professor, Eric Goldman broke down the Court’s lengthy opinion (a good read if you don’t want to spend the time to review the full opinion) while pointing out that “fractured opinions raise some doubts about the true holding of [the] case.” The big question is where will things go from here? Indeed, only time will tell.

Citation: Hassell v. Bird, 2018 WL 3213933 (Cal. Sup. Ct. July 2, 2018)

April 7, 2018October 25, 2021 Anette B.

Arizona Defamation Law

Now that nearly anyone can get online and “speak freely” it is no wonder that there is a rise in defamation related claims. If only people would have read the Fighting Fair on the Internet series sooner? Indeed, so many people are either “That Guy” or are on the receiving end of “That Guy.” Hey, I’m not judging, I’m just telling it as I see it.

As adults that may not have grown up with the internet, many of us were thrust into online situations that, quite frankly, we weren’t equipped to handled. And now, kids are even getting the short end of the lesson learning stick because of it.

So let’s talk about defamation. Of course, it’s important to point out that laws vary from state to state and if you are not in Arizona, the following information may not apply to you.

ARIZONA DEFAMATION LAW – THE BASICS

The Elements of Defamation in Arizona.

In Arizona, as outlined in Morris v. Warner, 106 Ariz. 55, 62 (Ariz.Ct.App. 1988), the elements of a defamation claim are:

a false statement concerning the plaintiff;
the statement was defamatory;
the statement was published to a third party;
the requisite fault on the part of the defendant; and
the plaintiff was damaged as a result of the statement.

In order for a statement to be considered “defamatory” the statement made must be false and bring the alleged defamed person into disrepute, contempt, or ridicule, or impeach his/her honesty, integrity, virtue, or reputation. That is outlined in a case called Godbehere v. Phoenix Newspapers, Inc., 162 Ariz.335, 341 (Ariz. 1989).

Spoken “defamation” is called slander. Think of rumor telling in the locker room, or maybe even bigger, like saying something on live public television.

Written “defamation” is called libel. Given the popularity of the internet now, this is what we see happening more often. Think of postings you see people post online. Those arguments that get heated and people start making up false statements…yeah, that could be libel.

Distinguishing between defamation per se and defamation per quod.

Distinctions between defamation per se and defamation per quod in Arizona is important because it effects the type of damages that the plaintiff must allege in order to prevail on their claim.

Slander per se is a statement that does any of the following:
- Imputes the commission of a crime involving moral turpitude (meaning an act or behavior that gravely violates the sentiment or accepted standard of the community.); or
  - Examples of this are false accusations that some has commit rape, forgery, robbery, and solicitation by prostitutes.
- Tends to injure a person in his profession, trade, or business; or
  - For example, falsely telling someone that a business took your money without providing the service promised.
- States that someone has a contagious or venereal disease, or that a woman is not chaste (meaning that she is not pure from unlawful sexual conduct).
  - For example, falsely saying that someone one has AIDs.
Slander per quod is basically a slanderous statement that does not otherwise fit under the definition of slander per se.
Libel per se is a statement written which “on their face and without the aid of any extrinsic matter” tend to “bring any person into disrepute, contempt or ridicule” or “impeach the honestly, integrity, virtue or reputation.”
Libel per quod is basically a written statement that on its face doesn’t fall within the definition of defamation BUT by which special circumstances actually make it fall within that definition.

Statute of Limitations for Defamation in Arizona

As I discussed in a prior article, it is important that people understand Statute of Limitations. They are there for a reason and, in my view, counsel that file claims that are barred by the statute of limitation are doing nothing more than wasting client resources and, arguably, committing an ethical violation.

The statute of limitations for defamation in Arizona is one (1) year. A.R.S. § 12-541(1). There may be, in some very limited circumstances, an argument to be made that there should be a tolling of the statute of limitations in situations where the information would have been concealed from the plaintiff (like in a confidential memo) in which case the statute of limitations may run from the date of “discovery.”

Another important fact to know is that Arizona, by state statute, applies what is referred to as the “single publication rule” or, more specifically, the “Uniform Single Publication Act.” A.R.S. § 12-651. The important language of the statute states as follows:

A. No person shall have more than one cause of action for damages for libel, slander, invasion of privacy or any other tort founded upon a single publication, exhibition or utterance, such as any one edition of a newspaper, book or magazine, any one presentation to an audience, any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

B. A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication, exhibition or utterance as described in subsection A shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication, exhibition or utterance.

The single publication rule applies to content posted to the internet and under the “single publication rule,” a cause of action for defamation arises at the time the statement is first published; later circulation of the original publication does not start the statute of limitations anew, nor does it give rise to a new cause of action. Larue v. Brown, 235 Ariz. 440, 333 P.3d 767 (2014)

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.

August 1, 2017August 5, 2017 Anette B.

Digital Millennium Copyright Act: It’s NOT for Reputation Management

Let me start out by saying that if your entire business model is based on submissions of Copyright infringement notices (“Digital Millennium Copyright Act Notices” or more commonly referred to as “DMCA Notices”), you should first have a clue about: 1) what goes in one; and 2) what circumstances will likely be found by the court as “infringement.” If you can’t even get that right, you are doing a disservice to both your customer and are risking litigation against you. #PetPeeve Yes, I have services in mind but they shall go unnamed.

I understand that in today’s modern world it is incredibly easy for someone to take a picture that posted of someone on the internet and then turn around and upload it elsewhere. Indeed, depending on the circumstances, it may very well be an instance of Copyright infringement and a DMCA Notice may very well be warranted. There is an entire legal analysis that often goes into determining Copyright infringement and those who are untrained should consult legal counsel who regularly handles Copyright infringement issues to help walk through the elements.

Notwithstanding the above, if you think that submitting a DMCA Notice to a site where such image is being used in connection with a review, in an effort to get that review or image to be removed from that site, you are likely going to fall flat and may have just wasted time and money. Why? Because such use is more likely than not going to be considered “fair use” by a court.

The doctrine of fair use is codified at Section 107 of the Copyright Act, 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work … for purposes such as criticism [and] commentary … is not an infringement of copyright.”); see also Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir.2001) (“copyright does not immunize a work from comment and criticism.”). Similarly, courts around the country have upheld the fair use doctrine for the type of claim that most people write to review websites about, i.e., an image connected with a critical review. See Dhillon v. Does 1-10, Not Reported in F.Supp.2d, 2014 WL 722592 (N.D.Cal. 2014) (finding of fair use when Plaintiff’s professional headshot was used for article criticism and commentary); Galvin v. Illinois Republican Party, Slip Copy, 2015 WL 5304625 (N.D.Ill. 2015) (finding of fair use when Plaintiff’s photograph was used in a flyer for the purpose of criticism and commentary); Katz v. Chevaldina, Slip Copy, 2014 WL 2815496, 111 U.S.P.Q.2d 1281, (S.D.Fla. 2014) (finding unauthorized use of unflattering photo of businessman in a blog that is critical of his business practices to be fair use as a matter of law); Katz v. Google, Inc., —F.3d—, 2015 WL 5449883 (11^th Cir. 2015) (finding of fair use when blogger used a photograph of a businessman, which he owned the copyright to, in a posting that was to deter others from conducting business with businessman); and Weinberg v. Dirty World, LLC, et al., 2:16-CV-09179 (C.D.Cal. Jul. 27, 2017) (finding fair use when photograph, captured from a video clip which Plaintiff had rights to, was uploaded to an online review website to “ridicule, mock, and critique” the figures in the image).

Moral of the story: if you are considering using a DMCA Notice (or hiring some Reputation Management company who uses this “method”) in effort to try and get postings or images removed from the internet…you should seriously reconsider your strategy. Chances are such companies (or law firms – I’ve seen ridiculous letters from attorneys too) are just taking your money and you may not get the results boasted about. Remember, there has to be a good faith believe that the use is infringing and when there is an abundance of case law that says “fair use”…one questions the “good faith” requirement.

Are you a business that operates a website where you regularly receive DMCA Notices? If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC! We truly enjoy helping our business clients meet and exceed their goals! 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.

July 22, 2017March 15, 2021 Anette B.

Trademarks and Fair Use in Commentary

I have clients who operate websites that allow third-party content. While NOT my clients, think about sites like Yelp, Twitter, Glassdoor, or even Facebook as examples. When you operate websites that allow other people to go online and write whatever they want, chances are you are going to see an allegation of some variation of Trademark Infringement via a cease and desist letter. I typically see them in the context of someone alleging trademark or service mark infringement because someone is using the trademark to talk about them online – most often critically – but not always. Sometimes content creators are using a brand’s trademark to speak highly of the brand or explain how to use something. Either way, these cease and desist letters come in from attorneys (which I always raise an eyebrow at), reputation management companies (again which I raise an eyebrow at) and everyday people which I can better understand because many simply don’t have an understanding of this area of law.

Due to the overwhelming issues that I see with these cease and desist letters (or even a friendly, hey, could you not use our stuff), I thought it might be good to cover some basics:

What is the Purpose of Trademark Law?

Trademark law helps ensure that consumers can rely on various types of marks (trademark, service mark, etc.) to identify the source of goods or services by prohibiting competitors from using the marks in a way that would confuse consumers about the source, sponsorship, or affiliation of goods or services.

What is a Trademark?

A trademark is a word, name, symbol, or device, or any combination thereof, that is used to distinguish the goods of one person from goods that are manufactured or sold by others. Think of it as telling people the source of the goods or services. Think of “Pepsi” or “The Home Depot” for example. Those are trademarked words that clearly distinguishes them from other sources of goods like “Coca-Cola” or “Lowe’s.”

What is a Service mark?

A service mark, is essentially identical to a trademark, with the exception that the mark is used to identify and distinguish services rather than products. Think of the well known service marks of American Express or Southwest Airlines. These are services marks that clearly distinguish them from other service marks like Discover or American Airlines.

Protecting your Marks.

It is important to police your trademark so as to keep it from falling by the way of generocide (death by becoming too generic due to its popularity and/or significance) or being counterfeited (knock-offs). A common example of generocide includes trademarks like “escalator” for the moving staircases. If you are curious you can read more about generic trademarks. A common example of trademark counterfeiting includes the cheap knock-off/fake Louis Vuitton handbags. You know, the ones that look like it’s the real deal at first glance but any savvy fashionista knows better upon closer inspection.

Trying to use Trademark as a Reputation Management Method.

Yes, there are times when you should be policing your trademark as discussed above. However, just as I cannot talk about The Home Depot without saying “The Home Depot,” the same goes for anyone else wanting to talk (or write), good or bad, about a particular brand. Such use falls under what is called “nominative fair use” which applies when a person has used one’s trademark to describe or refer to the trademark holder’s product. As with most aspects of law there are caveats and tests, however, generally speaking, just because you have a registered trademark doesn’t mean that you can submit cease and desist letters and allege trademark infringement as a way to get websites/content creators to take down content about your business, especially if it is critical of your business. Chances are, in that critical context, it is NOT trademark infringement.

If you are in the state of Arizona and are looking for that solid “friend in the lawyering business” consider Beebe Law, PLLC! We truly enjoy helping our business clients meet and exceed their goals! 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.

July 19, 2017August 29, 2018 Anette B.

Five Benefits to Keeping Your Business Lawyer in the Loop

Let’s face it, the word “lawyer” for many is akin to a four letter expletive that people are offended by. Typically because it reminds people of getting sued and/or having to shell out, often unexpectedly, loads of cash that they rather have spent elsewhere…like on a vacation. Similarly, like in all professions, not all lawyers are created equal, and not all lawyers really have their client’s financial interests at heart – after all, being a lawyer and having a law firm is a business. I personally pride myself on NOT taking advantage of my clients…giving them direction on how they can do things themselves and helping only where they REALLY need/want it…but after 18+ years in the legal field, I know that not all lawyers share my same client-friendly mindset. It is no wonder that people cringe at the thought of having to use a lawyer.

Lawyers don’t have to be a thorn in your side through. In fact, a good lawyer can be a business’s greatest adviser and advocate – keeping in mind that a job of a lawyer is to tell you what you NEED to hear which can sometimes be very different than what you WANT to hear. All businesses should have a lawyer or two that they keep in regular contact with and it should be part of your regular business operating budget.

Before you go thinking I’m crazy, here are a few reasons that keeping your lawyer updated on the goings on of your business is advantageous:

Lead Generation: Your lawyer can often be your biggest cheerleader (and lead generator) for future customers. Chances are your lawyer is tapped into many different networks. You never know when someone they know will need your business’s products or services and a solid referral from your lawyer could be future revenue in your pocket.
Idea Generator: An attorney that understands you, your business, and your goals can be an invaluable asset when it comes to creative thinking. Brainstorming on new ideas with your lawyer may prove to be helpful in that they may be able to think of concepts outside the box for your business that you may not have already thought about. What if that lawyer helps you generate the next million dollar idea?
Cost Cutting: One thing that many lawyers are good at is organizing and streamlining processes – it’s part of the way we think. What if your lawyer was able to give you ideas on how to streamline an existing process that will considerably help cut costs moving forward? If a few hundred dollars for your lawyer’s time on the telephone could save you thousands of dollars in the next year, wouldn’t you do it? Sure you would. You’d be a fool not to.
Risk Mitigation: When you brainstorm with your lawyer on a new business concept, they can often help you plan your road-map to reach your goals and help you navigate around pitfalls that you might not even think about. For example, when clients come to me talking about setting up a new business I always ask them the business name and ask if they have considered any reputation issues with that new business name. The same goes for contracting issues, employee issues, etc. To that end as well, there is a LOT of bad information being circulated around on the internet. Indeed it is wise to conduct your own research but don’t you think it prudent to have your research double-checked by someone who knows where to actually find the correct information when it comes to the law? As Dr. Emily So once said, “better information means better ideas, means better protection.”
Cost Effective: It is a lot cheaper to keep your lawyer up to speed on your business as it grows, even if through a short monthly 15 minute call, than it is to try and ramp your attorney up (trying to teach them everything about your business, including policy changes and the like in a short amount of time) when you suddenly need advice in order to be reactive to a situation – like when you are named as a defendant in a lawsuit. When you are named as a defendant in a lawsuit, you typically only have 20 days (varies by court and jurisdiction) from the date that you are served with a complaint in order to determine what your defenses are and what sort of a response you will need to file. That process becomes a whole lot easier if your attorney already knows about you, your business, it’s policies and procedures, etc. It is also easier to to budget in a few hundred dollars a month to keep your attorney up to date then to get smacked with a request for a $20,000.00 retainer, most of that potentially being eaten up just “learning” about your business, and then having subsequent large litigation bills.

As you can see, there are many reasons to regularly communicate with your attorney and hopefully you would find it more advantageous and beneficial than paying your monthly insurance bill. As Benjamin Franklin once said, “an ounce of prevention is worth a pound of cure!”

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.

April 6, 2017April 7, 2017 Anette B.

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:

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.
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.
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.
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.
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.

April 4, 2017 Anette B.

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:

View this document on Scribd

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.

March 21, 2017 Anette B.

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:

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;
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;
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
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.

March 10, 2017 Anette B.

Your Kids Cyber-bullying? Eventually You Could be Held Responsible.

In my blog series Fighting Fair on the Internet I have been writing in general about the varying problems I see with use of the internet. After all, given my unique position and area of law I work in, I have had the opportunity to see all kinds of situations that most people never even think about. Seriously – the good, bad, and the ugly – I see all of it. And why do I write about it? Because everyday I see people making stupid mistakes that eventually end up coming back to haunt them in one way or another and because I think education on these issues, raising awareness, plays a key part in reducing the amount of problems I see.

A colleague of mine showed me an NBC Miami article where Central Florida attorney Mark O’Mara was considering writing law that would give law enforcement officials the ability hold parents accountable for the bad things their kids were doing online. In response to an arrest back in 2013 of two girls in a Florida bullying and suicide investigation, attorney O’Mara wrote on his blog:

The question is this: is their ignorance and apathy about their daughter’s cyber-bullying criminal? Under our current laws, it looks like the answer is “no.” Should that sort of willful blindness or gross negligence be criminal? I think it should, and here’s why: if a child kills someone while operating a parent’s car, the parents can be held responsible. If a child kills someone while using a parent’s gun, the parent can be held responsible. If a child breaks the law using a computer or cellphone provided by the parent, how is that different?

If you ask me, I am already all for harsher punishment for internet defamers and harassers so his argument makes sense. That is, of course, so long as the punishment is reasonable but yet has enough teeth to ensure that parents actually monitor and pay some level of attention to what their kids are doing online. If you are a parent, you SHOULD be monitoring what your kids are doing – not just to keep yourself out of trouble but to protect your child from all the dangers online (physical, mental, and legal).

After my first presentation to high school students regarding internet use and the repercussions from the same, it was abundantly clear that a lot more education was needed. I went as far as explaining to the students that after my presentation they probably knew more than their parents did – after all, most of us old enough to have teenagers really didn’t have internet growing up and we especially didn’t have social media. I encouraged students to go home and talk with their parents about what they learned…because not all advice that kids get from their parents is the best – especially when it comes to online issues.

As some food for thought, according to the Cyberbullying Research Institute, 48 states, plus Washington, DC, have laws that include cyber-bullying or online harassment. Out of those states, 44 of them have criminal sanctions for cyber-bullying or electronic harassment. Some information regarding the different state laws on these issues can be found here. Similarly, just remember that “anonymous” doesn’t really mean “anonymous.” In most cases, your identifying information is only one or two well written subpoenas away.

Long story short, with the continuing increase of use of the internet, don’t be surprised when laws start being enacted to hold parents liable for the wrongs of their children. Want to be proactive and learn more for yourself, your kids, or even for a group? Contact me! See my contact page for more information.

Have thoughts on this to share? Share them in the comments below!

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Chronicles of the Yoga Pants Lawyer

Lady lawyer diary…stories from the trenches on every day life and legal issues

Defamation

Section 230 Protects Users Too – Monge v. Univ. of Pa.

Newsweek’s 12(b)(6) failed in defamation case – Boone v. Newsweek

Anti-SLAPP Laws Without Mandatory Award of Fees and Costs is a Hinderance to the Access to Justice and Chills Free Speech

The Ugly Side of Reputation Management: What Attorneys and Judges Need to Know

BACKGROUND: QUESTIONABLE DEFAMATION CASES AND COURT ORDERS

RED FLAGS THAT SHOULD CAUSE YOU PAUSE

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.

From the #MoronFiles | Note to Dabblers: When in doubt, refer it out!

PRELUDE:

Section 230 is alive and well in California (for now) | Hassell v. Bird

Arizona Defamation Law

ARIZONA DEFAMATION LAW – THE BASICS

The Elements of Defamation in Arizona.

Distinguishing between defamation per se and defamation per quod.

Statute of Limitations for Defamation in Arizona

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.

Trademarks and Fair Use in Commentary

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.

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

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

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…

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.