Facebook’s Terms of Service set jurisdiction for litigation – We Are the People, Inc. v. Facebook, Inc.

A common mistake, and arguably a waste of time, is to attempt to bring a breach of contract litigation in a jurisdiction other than the jurisdiction that the contract states. Years ago I wrote an article about the importance of boilerplate terms. One of the very first points I discuss is choice of law/choice of forum clauses.

Most people who are entering into a contract read the contract before they sign their name. Curiously, this doesn’t seem to translate when people are signing up for a website or app. I actually wrote about this too, warning people that they are responsible for their own actions when it comes to website Terms of Service and that they should read them before they sign up. Alas, we’re all human and the only real time people tend to look at the Terms of Service (i.e., the use contract) is when the poo has hit the fan. Even then, the first thing most people look at (or should look at if they are considering litigation) is the choice of law provisions.

In this instance, Plaintiff’s brought a lawsuit against Facebook in the Southern District of New York alleging that Facebook’s removal of content from Facebook’s pages violated Facebook’s “contractual and quasi-contractual obligations to keep Plaintiffs’ content posted indefinitely.” Anyone who has ever used Facebook would likely realize that the “contract” being discussed would stem from their Terms of Service. Facebook filed a motion to dismiss based upon Section 230 of the Communications Decency Act or, alternatively, to transfer venue.

Why would Facebook want to transfer venue? Because arguably California has better law for them. California has a strong anti-SLAPP law codified at Cal. Civ. Proc. § 425.16 (which applies to many cases that Facebook is likely to be named in) and many Section 230 cases have been ruled upon favorably to platforms. As such, Facebook’s Terms of Service contains a forum selection clause that requires any disputes over the contract be heard by a court in California; more specifically, exclusively in the Northern District of California (or a state court located in San Mateo County).

As I see it, these Plaintiffs either didn’t bother to read that part of the Terms of Service or they wanted to roll the dice and see if Facebook wouldn’t notice (Pro-tip: fat chance of that working). Regardless of the rationale, on June 3, 2020 the court quickly sided with Facebook ruling that the Terms of Service forum selection clause was “plainly mandatory” absent some showing that such clause was unenforceable (which Plaintiffs failed to do and, according to the Court, could not do in this particular circumstance (given Defendants’ memorandum of law) and Facebook’s Motion to Transfer was granted.

Citation: We Are the People, Inc. v. Facebook, Inc., Case No. 19-CV-8871 (JMF) (S.D. N.Y. 2020)

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.

It’s hard to find caselaw to support your claims when you have none – Wilson v. Twitter

When the court’s opinion is barely over a page when printed, it’s a good sign that the underlying case had little to no merit.

This was a pro se lawsuit, filed against Twitter, because Twitter suspended at least three of Plaintiff’s accounts which were used to “insult gay, lesbian, bisexual, and transgender people for violating the company’s terms of service, specifically its rule against hateful conduct.”

Plaintiff sued Twitter alleging that “[Twitter] suspended his accounts based on his heterosexual and Christian expressions” in violation of the First Amendment, 42 U.S.C. § 1981, Title II of the Civil Rights Act of 1964, and for alleged “legal abuse.”

The court was quick to deny all of the claims explaining that:

  1. Plaintiff had no First Amendment claim against Twitter because Twitter was not a state actor; having to painfully explain that just because Twitter was a publicly traded company it doesn’t transform Twitter into a state actor.
  2. Plaintiff had no claim under § 1981 because he didn’t allege racial discrimination.
  3. Plaintiff’s Civil Rights claim failed because: (1) under Title II, only injunctive relief is available (not damages like Plaintiff wanted); (2) Section 230 of the Communications Decency Act bars his claim; and (3) because Title II does not prohibit discrimination on the basis of sex or sexual orientation (an no facts were asserted to support this claim).
  4. Plaintiff failed to allege any conduct by Twitter that cold plausibly amount to legal abuse.

The court noted that Plaintiff “expresses his difficulty in finding case law to support his claims.” Well, I guess it would be hard to find caselaw to support claims when you have no valid ones.

Citation: Wilson v. Twitter, Civil Action No. 3:20-0054 (S.D. W.Va. 2020)

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.

Section 230, the First Amendment, and You.

Maybe you’ve heard about “Section 230” on the news, or through social media channels, or perhaps by reading a little about it through an article written by a major publication … but unfortunately, that doesn’t mean that the information that you have received is necessarily accurate. I cannot count how many times over the last year I’ve seen what seems to be purposeful misstatements of the law … which then gets repeated over and over again – perhaps to fit some sort of political agenda. After all, each side of the isle so to speak is attacking the law, but curiously for different reasons. While I absolutely despise lumping people into categories, political or otherwise, the best way I can describe the ongoing debate is that the liberals believe that there is not enough censoring going on, and the conservatives think there is too much censorship going on. Meanwhile, you have the platforms hanging out in the middle often struggling to do more, with less…

In this article I will try to explain why I believe it is important that even lay people understand Section 230 and dispel some of the most common myths that continually spread throughout the Internet as gospel … even from our own Congressional representatives.

WHY LAY PEOPLE SHOULD CARE ABOUT SECTION 230

Not everyone who reads this will remember what it was like before the Internet. If you’re not, ask your elders what it was like to be “talked at” by your local television news station or news paper. There was no real open dialog absent face to face or over the telephone communications. Your audience was limited who you would get to share information with. Even if you wrote a “letter to the Editor” at a local newspaper it didn’t mean that your “opinion” was necessarily going to be posted. If you’re old end enough to remember that, and are nodding your head in agreement … I encourage you to spend some time remembering what that was like.

If you like being able to share information freely, and to comment on information freely, you absolutely should care about what many refer to as “Section 230.” So many of my friends, family and colleagues say “I don’t understand Section 230 and I don’t care to … that’s your space” yet these are the people that I see posting content online about their business via LinkedIn or other social media platforms, sharing reviews of businesses they have been to, looking up information on Wikimedia, sharing their general opinion and/or otherwise dialog and debate over topics that are important to them, etc. In a large way, whether you know it or not, Section 230 has powered your ability to interact online in this way and has drastically shaped the Internet as we know it today.

IN GENERAL: SECTION 230 EXPLAINED

The Communications Decency Act (47 U.S.C. § 230) (often referred to as “Section 230” or “CDA”), in brief, is a federal law enacted in 1996 that, with a few exceptions carved out within the statute, protects the owners of websites/search engines/applications (each often synonymously referred to as “platforms”) from liability from third-party content.  Generally speaking, if the platform didn’t actually create the content, they traditionally aren’t liable for it. Indeed, there are a few exceptions, but for now, we’ll keep this simple. Platforms that allow third-party content are often referred to as user generated content (“UGC”) sites.  Facebook, Twitter, Snapchat, Reddit, TripAdvisor, and Yelp are all examples of such platforms and reasonable minds would likely agree that there is social utility behind each of these sites. That said, these household recognized platform “giants” aren’t the only platforms on the internet that have social utility and benefit from the CDA.  Indeed, it covers all of the smaller platforms, including bloggers or journalists who desire to allow people to comment about articles/content on their websites.

If you’re looking for some sort of a deep dive on the history of the law, I encourage you to pick up a copy of Jeff Kosseff’s book titled The Twenty-Six Words That Created The Internet.

ONGOING “TECHLASH” WITH SECTION 230 IN THE CROSS-HAIRS

One would be entirely naive to even suggest that the Internet is perfect. If you ask me, it’s far from perfect. I readily concede that indeed there are harms that happen online. To be fair, harms happen offline too and they always have. Sometimes humans just suck. I’ve discussed a lot of this in my ongoing blog article series Fighting Fair on the Internet. What has been interesting to me is that many seem to want to blame people’s bad behavior on technology and to try and hold technology companies liable for what bad people do using their technology.

I look at technology as a tool. By analogy, a hammer is a tool yet we don’t hold the hammer manufacturing company or the store that sold the hammer to the consumer liable when a bad guy goes and beats someone to death with it. I imagine the counter-argument is that technology is in the best position to help stop the harms. Perhaps that may be true to a degree (and I believe many platforms do try to assist by moderating content and otherwise setting certain rules for their sites) but the question becomes, should they actually be liable? If you’re a Section 230 “purist” the answer is “No.” Why? Because Section 230 immunizes platforms from liability for what other people say or do on their platforms.

The government, however, seems to have its’ own set of ideas. We already saw an amendment to Section 230 with FOSTA (the anti-sex trafficking amendment). Unfortunately, good intentions often make for bad law, and, in my opinion, FOSTA was one of those laws which has been arguably proven to cause more harm than good. I could explain why, but I’ll save that discussion for another time.

Then, in February of this year, the DOJ had a “workshop” on Section 230. I was fortunate enough to be in the audience in Washington, D.C. where it was held and recently wrote an article breaking down that “workshop.” If you’re interested in all the juicy details, feel free to read that article but in summary it basically was four hours’ worth of : humans are bad and do bad things; technology is a tool in which bad humans do bad things; technology/platforms need to find a way to solve the bad human problem or face liability for what bad humans occasionally do with the tools they create; we want to make changes to the law even though we have no empirical evidence to support the position that this is an epidemic rather than a minority…because bad people.

Shortly thereafter the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 or EARN IT Act of 2019-2020 Bill was dropped which is designed to prevent the online sexual exploitation of children. While this sounds noble (FOSTA did too) when you unpack it all, and look at the bigger picture, it’s more government attempts to mess with free speech and online privacy/security in the form of yet another amendment to Section 230 under the guise of being “for the children.” I have lots of thoughts on this, but I will save this for another article another day too.

This brings us to the most recent attack on Section 230. The last two (2) weeks have been a “fun” time for those of us who care about Section 230 and its application. Remember how I mentioned above that some conservatives are of the opinion that there is too much censorship online? This often refers to the notion that social media platforms (Facebook, Twitter, and even Google) censor or otherwise block conservative speech. Setting aside whether this actually happens or not (I’ve heard arguments pointing both directions on this issue) President Trump shined a big old light on this notion recently.

Let me first state off by saying that there is a ton of misinformation that is shared online. It doesn’t help that many people in society will quickly share things without actually reading it or conducting research to see if the content they are sharing has any validity to it but will spend 15 minutes taking a data mining quiz only to find out what kind of a potato they are. Who knew the 2006 movie Idiocracy was going to be so prophetic?

Along with other perceived harmful content, platforms have been struggling with how to handle such misinformation. Some have considered adding more speech by way of notifications or “labels” as Twitter calls them, to advise their users that the information may be wholly made up or modified, shared in a deceptive manner, likely to impact public safety or otherwise cause serious harm. Best I could tell, at least as far as Twitter goes, this seems to be a relatively new effort. Side note: While ideal in a perfect world, I’m not personally a fan of social media platforms fact checking because: 1) it’s very hard to be an arbiter of truth; 2) it’s incredibly hard to do it at scale; 3) once you start, people will expect you to do it on every bit of content that goes out – and that’s virtually impossible; and 4) if you fail to fact check something that turns out to be false or otherwise misleading, one might assume that such content is accurate because they come to rely on the fact checking.

So what kicked off the latest “Section 230 tirade”? Twitter “fact checked” President Trump in two different tweets on May 26th, 2020 by adding in a “label” to the bottom of the Tweets (which you have to click on to actually see – they don’t transfer when you embed them as I’ve done here) that said “Get the facts about mail-in-ballots.” This clearly suggests that Twitter was in disagreement with information that the President Tweeted and likely wanted its users to be aware of alternative views.

To me, that doesn’t seem that bad. I can see some validity to President Trump’s concern. I can also see an alternative argument, especially since I typically mail in my voting ballot. If you think about it, pretty much everything that comes out of a politician’s mouth is subjective. Nevertheless, President Trump got upset over the situation and then suggested that Twitter was “completely stifling FREE SPEECH” and then made veiled threats about not allowing that to happen.

If we know anything about this President, it is that when he’s annoyed with something, he will take some sort of action. President Trump ultimately ended up signing an Executive Order on “Preventing Online Censorship” a mere two (2) days later. For those that are interested, while certainly left leaning, and non-favorable to our commander in chief, Santa Clara Law Professor Eric Goldman provided a great legal analysis of the Executive Order, calling it “political theater.” Even if you align yourself with the “conservative” base, I would encourage you to set aside the Professor’s personal opinions (we all have opinions) and focus on the meat of the legal argument. It’s good.

Of course, and as expected, the Internet looses its mind and all the legal scholars and practitioners come out of the woodwork, commenting on Section 230 and the newly signed Executive Order, myself included. The day after of the Executive Order was signed (and likely President Trump read all the criticisms) he Tweeted out “REVOKE 230!”

So this is where I have to sigh heavily. Indeed there is irony in the fact that the President is calling for the revocation of the very same law that allowed innovation and Twitter to even become a “thing” and which also makes it possible for him to reach out and connect to millions of people, in real time, in a pretty much unfiltered way as we’ve seen, for free because he has the application loaded on his smart phone. In my opinion, but for Section 230, it is entirely possible Twitter, Facebook and all the other forms of social media and interactive user sites would not exist today; at least not as we know it. Additionally, I find it ironic that President Trump is making free speech arguments when he’s commenting about, and on, a private platform.

As I said though, this attack on Section 230 isn’t just stemming from the conservative side. Even Joe Biden has suggested that Section 230 should be “repealed immediately” but he’s on the whole social media companies censor too little train which is completely opposite of the reasons that people like President Trump wants it revoked.

HOW VERY AMERICAN OF US

How many times have you heard that American’s are self centered jerks? Well, Americans do love their Constitutional rights, especially when it comes to falling in love with their own opinions and the freedom to share those opinions. Moreover, when it comes to the whole content moderation and First Amendment debate, we often look at tech giants as purely American companies. True, these companies did develop here (arguably in part thanks to Section 230) however, what many people fail to consider is that many of these platforms operate globally. As such, they are often trying to balance the rules and regulations of the U.S. with the rules and regulations of competing global interests.

As stated, Americans are very proud of the rights granted to them, including the First Amendment right to free speech (although after reading some opinions lately I’m beginning to wonder if half the population slept through or otherwise skipped high school civics class … or worse, slept through Constitutional Law while in law school). However, not all societies have this speech right. In fact, Europe’s laws value the privacy as a right, over the freedom of expression. A prime example of this playing out is Europe’s Right to Be Forgotten law.

When we demand that these tech giants cater to us, here in the United States, we are forgetting that these companies have other rules and regulations that they have to take into consideration when trying to set and implement standards for their users. What is good for us here in the U.S. may not be good for the rest of the world, which are also their customers.

SECTION 230 AND FIRST AMENDMENT MYTHS SPREAD LIKE WILDFIRE

What has been most frustrating to me, as someone who practices law in this area and has a lot of knowledge when it comes to the business of operating platforms, content moderation, and the applicability of Section 230, is how many people who should know better get it wrong. I’m talking about our President, Congressional representatives, and media outlets … so many of them, getting it wrong. And what happens from there? You get other people who regurgitate the same uneducated or otherwise purposefully misstatements in articles that get shared which further perpetuates the ignorance of the law and how things actually work.

UPDATED: For example, just today Jeff Kosseff Tweeted out a thread that describes a history of the New York Times failing to accurately explain Section 230 in various articles and how one of these articles ended up being quoted by a NJ federal judge. It’s a good thread. You should read it.

MYTH: A SITE IS EITHER A “PLATFORM” OR A “PUBLISHER”

Contrary to so many people I’ve listened to speak, or articles that I’ve read, when it comes to online UGC platforms, there is no distinction between “publisher” and a “platform.”  You aren’t comparing the New York Times to Twitter.  Working for a newspaper is not like working for a UGC platform.  Those are entirely different business models … apples and oranges. Unfortunately, that’s another spot where many people, like this author, get caught up and confused. 

UGC platforms are not in the business of creating content themselves but rather in the business of setting their own rules and allowing third-parties (i.e., you and I here on this platform) to post content in accordance with those rules.  Even for those who point to some publications erring on the side of caution on 2006-2008 re editing UGC comments doesn’t mean that’s how the law actually was interpreted.  We have decades worth of jurisprudence interpreting Section 230 (which is what the judicial branch does – interprets the law, not the FCC which is an independent organization overseen by Congress).  Platforms absolutely have the right to moderate the content which they did not create and kick people off of their platform for violation of their rules. 

Think if it this way – have you ever heard your parents say (or maybe you’ve said this to your own kids) “My house, my rules.  If you don’t like the rules, get your own house.”  If anyone actually researches the history, that’s why Section 230 was created … to remove the moderator’s dilemma.  A platform’s choice of what to allow, or disallow, has no bearing (for the sake of this argument here) on the applicability of Section 230.  Arguably, UGC platforms also have a First Amendment right to choose what they want to publish, or not publish.

MYTH: PLATFORMS HAVE TO BE NEUTRAL FOR SECTION 230 TO APPLY

Contrary to the misinformation being spewed all over (including by government representatives – which I find disappointing) Section 230 has never had a “neutrality” caveat for protection.  Moreover, in the context of the issue of political speech, Senator Ron Wyden, who was a co-author for the law even stated recently on Twitter “let me make this clear: there is nothing in the law about political neutrality.” 

You can’t get much closer to understanding Congressional intent of the law than getting words directly from the co-author of the law. 

Quite frankly, there is no such thing as a “neutral platform.”  If there were, as someone that deals with content escalations for platforms, I can tell you that we would have a very UGLY Internet because sometimes people just suck.

MYTH: CENSORSHIP OF SPEECH BY A PLATFORM VIOLATES THE FIRST AMENDMENT

The First Amendment absolutely protects the freedom of speech.  In theory, you are free to put on a sandwich board that says (insert whatever you take issue with) and walk up and down the street if you want.  In fact, we’re seeing such constitutionally protected demonstrations currently with the protesters all over the country in connection to the death of George Floyd. Such peaceful demonstration is absolutely protected under the First Amendment. 

What the First Amendment does not do (and this seems to get lost on people for some reason) is give one the right to amplification of that speech on a private platform.  One might wish that were the case, but wishful thinking does equal law. Unless and until there is some law, that passes judicial scrutiny, which deems these private platforms a public square subject to the same restrictions that is imposed on the government, they absolutely do not have to let you say everything and anything you want. Chances are, this is also explained in their Terms of Service, which you probably didn’t read, but you should.

If you’re going to listen to anyone provide an opinion on Section 230, perhaps one would want to listen to a co-author of the law itself:

Think of it this way, if you are a bar owner and you have a drunk and disorderly guy in you bar that is clearly annoying your other customers, would you want the ability to 86 the person or do you want the government to tell you that as long as you are open to the public you have to let that person stay in your bar even if you risk losing other customers because someone is being obnoxious? Of course you want to be able to bounce that person out! It’s not really any different for platform operators.

LET’S KEEP THE CONVERSATION GOING BUT NOT MAKE RASH DECISIONS

Do platforms have the best of both worlds … perhaps.  But what is worse?  The way it is now with Section 230 or what it would be like without Section 230?  Frankly, I choose a world with Section 230.  Without Section 230, the Internet as we know it will change. 

While we’ve never seen what the Internet looks like without Section 230 I can imagine we would go to one of two options: 1) an Internet where platforms are afraid to moderate content and therefore everything and anything would go up, leaving us with a very ugly Internet (because people are unfathomably rude and disgusting – I mean, content moderators have suffered from PTSD for having to look at what nasty humans try to share); or 2) an Internet where platforms are afraid of liability and either UGC sites will cease to exist altogether or they may go to a notice and take down model where as soon a someone sees something they are offended by or otherwise don’t like, they will tell the platform the information is false, defamatory, harassing, etc. and that content would likely automatically come down. The Internet, and public discussion, will be at the whim of a heckler’s veto. You think speech is curtailed now? Just wait until the society of “everyone is offended” gets a hold of it.

As I mentioned to begin with, I don’t think that the Internet is perfect, but neither are humans and neither is life. While I believe there may be some concessions to be had, after in-depth studies and research (after all, we’ve only got some 24 years of data to work with and those first years really don’t count in my book) I think it foolish to be making rash decisions based upon political agendas. If the politicians want their own platform where they aren’t going to be “censored” and the people have ease of access to such information … create one! That’s what is great about this country … we have the ability to innovate … well, at least for now.

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.

Breaking down the DOJ Section 230 Workshop: Stuck in the Middle With You

The current debate over Section 230 of the Communications Decency Act (47 U.S.C. § 230) (often referred to as “Section 230” or “CDA”) has many feeling a bit like the lyrics from Stealers Wheel – Stuck in The Middle With You, especially the lines where it says “clowns to the left of me, jokers to my right, here I am stuck in the middle with you.” As polarizing as the two extremes of the political spectrum seem to be these days, so are the arguments about Section 230.  Arguably the troubling debate is compounded by politicians who either don’t understand the law, or purposefully make misstatements about the law in attempt to further their own political agenda.

For those who may not be familiar with the Communications Decency Act, in brief, it is federal law enacted in 1996 that, with a few exceptions carved out within the statute, protects the owners of websites/search engines/applications (each often synonymously referred to as “platforms”) from liability from third-party content.  Platforms that allow third-party content are often referred to as user generated content (“UGC”) sites.  Facebook, Twitter, Snapchat, Reddit, TripAdvisor, and Yelp are all examples of such platforms and reasonable minds would likely agree that there is social utility behind each of these sites. That said, these household recognized platform “giants” aren’t the only platforms on the internet that have social utility and benefit from the CDA.  Indeed, it covers all of the smaller platforms, including bloggers or journalists who desire to allow people to comment about articles/content on their websites. 

So, what’s the debate over?  Essentially the difficult realities about humans and technology.  I doubt there would be argument over the statement that the Internet has come a long way since the early days of CompuServe, Prodigy and AOL. I also believe that there would be little argument that humans are flawed.  Greed was prevalent and atrocities were happening long before the advent of the Internet.  Similarly, technology isn’t perfect either.  If technology were perfect from the start, we wouldn’t ever need updates … version 1.0 would be perfect, all the time, every time.  That isn’t the world that we live in though … and that’s the root of the rub, so to speak.

Since the enactment of the CDA, an abundance of lawsuits have been initiated against platforms, the results of which further defined the breadth of the law.  For those really wanting to learn more and obtain a more historical perspective on how the CDA came to be, one could read Jeff Kosseff’s book called The Twenty Six Words That Created the Internet.  To help better understand some of the current debate over this law which will be discussed shortly, this may be a good opportunity to point out a few of the (generally speaking) practical implications of Section 230:

  1. Unless a platform wholly creates or materially contributes to content on its platform, it will not be held liable for the content created by a third-party.  This immunity from liability has also been extended to other tort theories of liability where it is ultimately found that such theory stems from the third-party content.
  2. The act of filtering content by a platform does not suddenly transform it into a “publisher” aka the person that created the content in the first place, for the purposes of imposing liability.
  3. A platform will not be liable for their decision to keep content up, or take content down, regardless of whether such information may be perceived as harmful (such as content alleged to be defamatory). 
  4. Injunctive relief (such as a take down order from a court) is legally ineffective against a platform if such order relates to content that they would have immunity for.

These four general principals are the result of litigation that ensued against platforms over the past 23+ years. However, a few fairly recent high-profile cases stemming from atrocities, and our current administration (from the President down), has put Section 230 in the crosshairs and desires for another amendment.  The question is, amendment for what?  One side says platforms censor too much, the other side says platforms censor too little, platforms and technology companies are being pressured to  implement stronger data privacy and security for their users worldwide while the U.S. government is complaining about measures being taken are too strong and therefore allegedly hindering their investigations.  Meanwhile the majority of the platforms are singing “stuck in the middle with you” trying to do the best they can for their users with the resources they have, which unless you’re “big Internet or big tech” is typically pretty limited.  And frankly, the Mark Zuckerberg’s of the world don’t speak for all platforms because not all platforms are like Facebook nor do they have the kind of resources that Facebook has.  When it comes to implementation of new rules and regulations, resources matter.

On January 19, 2020 the United States Department of Justice announced that they would be hosting a “Workshop on Section 230 of the Communications Decency Act” on February 19, 2020 in Washington, DC.  The title of the workshop “Section 230 – Nurturing Innovation or Fostering Unaccountability?”  The stated purpose of the event was to “[D]iscuss Section 230 … its expansive interpretation by the courts, its impact on the American people and business community, and whether improvements to the law should be made.”  The title of the workshop was intriguing because it seemed to suggest that the answer was one or the other when the two concepts are not mutually exclusive.

On February 11, 2020 the formal agenda for the workshop (the link to which has since been removed from the government’s website) was released.  The agenda outlined three separate discussion panels:

  • Panel 1:  Litigating Section 230 which was to discuss the history, evolution and current application of Section 230 in private litigation;
  • Panel 2: Addressing Illicit Activity Online which was to discuss whether Section 230 encourages or discourages platforms to address online harms, such as child exploitation, revenge porn, and terrorism, and its impact on law enforcement; and
  • Panel 3: Imagining the Alternative which was to discuss the implications on competition, investment, and speech of Section 230 and proposed changes. 

The panelists were made up of legal scholars, trade associations and a few outside counsel who represent plaintiffs or defendants.  More specifically, the panels were filled with many of the often empaneled Section 230 folks including legal scholars like Eric Goldman, Jeff Kosseff; Kate Klonik, Mary Ann Franks, and staunch anti- Section 230 attorney Carrie Goldberg, a victim’s rights attorney that specializes in sexual privacy violations.  Added to the mix was also Patrick Carome who is famous for his Section 230 litigation work, defending many major platforms and organizations like Twitter, Facebook, Google, Craigslist, AirBnB, Yahoo! and the Internet Association.  Other speakers included Annie McAdams, Benjamin Zipupsky, Doug Peterson, Matt Schruers, Yiota Souras, David Chavern, Neil Chilson, Pam Dixon, and Julie Samuels.

A review of the individual panelist’s bios would likely signal that the government didn’t want to include the actual stakeholders, i.e., representation from any platform’s in-house counsel or in-house policy.  While not discounting the value of the speakers scheduled to be on panel, one may find it odd that those who deal with the matters every day, who represent entities that would be the most impacted by modifications to Section 230, who would be in the best position to determine what is or is not feasible to implement in the terms of changes, if changes to Section 230 were to happen, had no seat at the discussion table.  This observation was wide spread … much discussion on social media about the lack of representation of the true “stakeholders” took place with many opining that it wasn’t likely to be a fair and balanced debate and that this was nothing more than an attempt by U.S. Attorney General William Barr to gather support for the bill relating to punishing platforms/tech companies for implementing end-to-end encryption.  One could opine that the Bill really has less to do with Section 230 and more to do with the Government wanting access to data that platforms may have on a few perpetrators who happen to be using a platform/tech service.

If you aren’t clear on what is being referenced above, it bears mentioning that there is a Bill titled “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2019” aka “EARN IT Act of 2019” that was proposed by Senator Lindsey Graham.  This bill came approximately two weeks after Apple was ordered by AG Barr to unlock and decrypt the Pensacola shooter’s iPhone.  When Apple responded that they couldn’t comply with the request, the government was not happy.  An article written by CATO Institute stated that “During a Senate Judiciary hearing on encryption in December Graham issued a warning to Facebook and Apple: ‘this time next year, if we haven’t found a way that you can live with, we will impose our will on you.’”  Given this information, and the agenda topics, the timing of the Section 230 workshop seemed a bit more than coincidence.  In fact, according to an article in Minnesota Lawyer, Professor Eric Goldman pointed out that the “DOJ is in a weird position to be convening a roundtable on a topic that isn’t in their wheelhouse.”

As odd as the whole thing may have seemed, I had the privilege of attending the Section 230 “Workshop”.  I say “workshop” because it was a straight lecture without the opportunity for there to be any meaningful Q&A dialog from the audience.  Speaking of the audience, of the people I had direct contact with, the audience consisted of reporters, internet/tech/first amendment attorneys, in-house counsel/representatives from platforms, industry association representatives, individual business representatives, and law students.  The conversations that I personally had, and personally overheard, was suggestive that the UGC platform industry (the real stakeholders) were all concerned or otherwise curious about what the government was trying to do to the law that shields platforms from liability for UGC.

PANEL OVERVIEW:

After sitting through nearly four hours’ worth of lecture, and even though I felt the discussion to be a bit more well-rounded than I anticipated, I still feel that the entire workshop could be summarized as follows: “humans are bad and do bad things; technology is a tool in which bad humans do bad things; technology/platforms need to find a way to solve the bad human problem or face liability for what bad humans occasionally do with the tools they create; we want to make changes to the law even though we have no empirical evidence to support the position that this is an epidemic rather than a minority…because bad people.”

Perhaps that is a bit of an oversimplification but honestly, if you watch the whole lecture, that’s what it boils down to.

The harms discussed during the different panels included:

  • Libel (brief mention)
  • Sex trafficking (Backpage.com, FOSTA, etc.)
  • Sexual exploitation of children (CSAM)
  • Revenge porn aka Non-Consensual Pornography aka Technology Facilitated Harassment
  • Sale of drugs online (brief mention)
  • Sale of alleged harmful products (brief mention)
  • Product liability theory as applied to platforms (ala Herrik v. Grindr)

PANEL #1:

In traditional fashion, the pro-Section 230 advocates explained the history of the CDA, how it is important to all platforms that allow UGC, not just “big tech” and resonated on the social utility of the Internet … platforms large and small.  However, the anti-Section 230 panelists pointed to mainly harms caused by platforms (though not elaborated on which ones) by not removing sexually related content (though defamation was a short mention in the beginning). 

Ms. Adams seemed to focus on sex trafficking – touching on how once Backpage.com was shut down that a similar close site started up in Amsterdam. She referred to the issues she was speaking about as a “public health crisis.” Of course, Ms. Goldberg raised argument relating to the prominent Herrik v Grindr case wherein she argued a product liability theory as a work around Section 230. That case ended when writ was denied by the U.S. Supreme Court in October of 2019. I’ve heard Ms. Goldberg speak on this case a few times and one thing she continually harps on is the fact that the Grindr didn’t have way to keep Mr. Herrik’s ex from using their website. She seems surprised by this. As someone who represents platforms, it makes perfect sense to me. We must not forget that people can create multiple user profiles, from multiple devices, from multiple IP addresses, around the world. Sorry, Plaintiff attorneys…the platforms’ crystal ball is in the shop on these issues … at least for now. Don’t misunderstand me. I believe Ms. Goldberg is fighting the good fight, and her struggle on behalf of her clients is real! I admire her work and no doubt she sees it with a lens from the trenches she is in. That said, we can’t lose sight of reality of how things actually work versus how we’d like them to work.

PANEL #2:

There was a clear plea from Ms. Franks and Ms. Souras for something to be done about sexual images, including those exploiting children.  I am 100% in agreement that while 46 states have enacted anti “revenge porn” or better termed Non-Consensual Pornography laws, such laws aren’t strong enough because of the malicious intent requirement.  All a perpetrator has to say is “I didn’t mean to harm victim, I did it for entertainment” or another seemingly benign purpose and poof – case closed.”  That struggle is difficult! 

No reasonable person thinks these kinds of things are okay yet there seemed to be an argument that platforms don’t do enough to police and report such content.  The question becomes why is that?  Lack of funding and resources would be my guess…either on the side of the platform OR, quite frankly, on a under-funded/under-resourced government or agency to actually appropriately handle what is reported.  What would be the sense of reporting unless you knew for sure that content was actionable for one, and that the agency it is being reported to would actually do anything about it?

Interestingly, Ms. Souras made the comment that after FOSTA no other sites (like Backpage.com) rose up.  Curiously, that directly contradicted Ms. Adams’s statement about the Amsterdam website popping up after Backpage.com was shut down.  So which is it?  Pro-FOSTA statements also directly contradicts what I’ve heard last October at a workshop put on by ASU’s Project Humanities entitled “Ethics and Intersectionality of the Sext Trade” which covered the complexities of sex trafficking and sex work.  Problems with FOSTA was raised during that workshop.  Quite frankly, I see all flowery statements about FOSTA as nothing more than trying to put lipstick on a pig; trying to make a well-intentioned, emotionally driven, law look like it is working when it isn’t.

Outside of the comments by Ms. Franks and Ms. Souras, AG Doug Peterson out of Nebraska did admit that the industry may self-regulate and sometimes that happens quickly, but he still complained that the state criminal law preemption makes his job more difficult and advocated for an amendment to include state and territory criminal law to the list of exemptions.  While that may sound moderate, the two can be different and arguably such amendment would be overbroad when you are only talking about sexual images.  Further, the inclusion of Mr. Peterson almost seemed as a plug in for a subtle push about how the government allegedly can’t do their job without modification to Section 230 – and I think a part of the was leaning towards, while not making a big mention about it, was the end-to-end encryption debate.  In rebuttal to this notion, Matt Schruers suggested that Section 230 doesn’t need to be amended but that the government needs more resources so they can do a better job with the existing laws, and encouraged tech to work to do better as they can – suggesting efforts from both sides would be helpful

One last important point made during this panel was Kate Klonik making the distinction between the big companies and other sites that are hosting non-consensual pornography.  It is important to keep in mind that different platforms have different economic incentives and that platforms are driven by economics.  I agree with Ms. Klonik that we are in a massive “norm setting” period where we are trying to figure out what to do with things and that we can’t look to tech to fix bad humans (although it can help).  Sometimes to have good things, we have to accept a little bad as the trade-off.

PANEL #3

This last panel was mostly a re-cap of the benefits of Section 230; the struggles that we fact when trying to regulate with a one-size fits all mentality and, I think most of the panelists seem to be agreeing that there needs to be some research done before we go making changes because we don’t want unintended consequences.  That is something I’ve been saying for a while and reiterated during the ABA’s Forum on Communications Law Digital Communications Committee hosted a free CLE titled “Summer School: Content Moderation 101” wherein Jeff Kosseff and I, in a moderated panel by Elisa D’Amico, Partner at K&L Gates, discussed Section 230 and a platform’s struggle with content moderation.  Out of this whole panel, the one speaker that had most people grumbling in the audience was David Chavern who is the President of News Media Alliance.  When speaking about solutions, Mr. Chavern likened Internet platforms to that of traditional media as if he was comparing two oranges and opined that platforms should be liable just like newspapers.  Perhaps he doesn’t understand the difference between first party content and third-party content.  The distinction between the two is huge and therefore I found his commentary to be the least relevant and helpful to the discussion. 

SUMMARY:

In summary, there seem to be a few emotion evoking ills in society (non-consensual pornography, exploitation of children, sex trafficking, physical attacks on victims, fraud, and the drug/opioid crisis) that the government is trying to find methods to solve.  That said, I don’t think amending Section 230 is the way to address that unless and until there is reliable and unbiased data that would suggest that the cure won’t be worse than the disease. Are the ills being discussed really prevalent, or do we just think they are because they are being pushed out through information channels on a 24-hour news/information cycle?

Indeed, reasonable minds would agree that we, as a society, should try and stop harms where we can, but we also have to stop regulating based upon emotions.  We saw that with FOSTA and arguably, it has made things more difficult on law enforcement, victims alike and has had unintended consequences, including chilling speech, on others.  You simply cannot regulate the hate out of the hearts and minds of humans and you cannot expect technology to solve such a problem either.  Nevertheless, that seems to be the position of many of the critics of Section 230.

For more reading and additional perspectives on the DOJ Section 230 Workshop, check out these additional links:

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.

The Supreme Court of the United States Denies Petition to Review the California Supreme Court’s Decision in Hassell v. Bird

Another win for Section 230 advocates. Back in July I wrote a blog post entitled “Section 230 is alive and well in California (for now) | Hassell v. Bird” which outlined the hotly contested, and widely watched, case that started back in 2014. When I wrote that post I left off saying that “the big question is where will things go from [there].” After all, we have seen, and continue to see, Section 230 come under attack for a host of arguably noble, yet not clearly thought through, reasons including sex-trafficking (resulting in FOSTA).

Many of us practitioners weren’t sure Hassell, after losing her case before the California Supreme Court as it pertained to Yelp, Inc., would actually appeal the matter to the U.S. Supreme Court. This was based upon the fact that: there has been a long line of cases across the country that have held that 47 U.S.C. § 230(c)(1) bars injunctive relief and other forms of liability against Internet publishers for third-party speech; that the U.S. Supreme Court denied another similar petition in not so distant past; and held many years prior, in Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969) that “[o]ne is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been been made a party by service of process.”  

Clearly undeterred, in October of 2018 Hassell filed a Petition for Writ of Certiorari and accompanying Appendix, challenging the California Supreme Court’s ruling, with the U.S. Supreme Court. Respondent, Yelp, Inc. filed its Opposition to the Petition for Writ of Certiorari in December of 2018. Hassell’s Reply in Support of the Petition was filed earlier this month and all the materials were distributed to the Justices to be discussed at the conference scheduled to be held on Friday, January 18, 2019. [I suppose it is good to see that the government shutdown didn’t kick this matter down the road.]

Many of us Section 230 advocates were waiting to see if the U.S. Supreme Court would surprise us by granting the Petition. Nevertheless, based upon today’s decision denying Hassell’s Petition it appears that this matter will, if ever, be reserved for another day and all is status quo with Section 230, for now.

Citations: Hassell v. Bird, 420 P.3d 776, 2018 WL 3213933 (Cal. Sup. Ct. July 2, 2018), cert. denied; Hassell v. Yelp, 2019 WL 271967 (U.S. Jan. 22, 2019)(No. 18- 506)

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. BirdVolokh 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 Aubuchon233 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.

“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.

 

 

 

 

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!

 

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)

From the #MoronFiles | Can’t Read or Lazy as F*ck?

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 shit bags…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:

07/09/2018 #MORONFILES ENTRY:

Today, maybe I’m a bit fired up.  It’s hot as hell here in sunny Phoenix, Arizona and maybe that’s starting to aggitate me a little more than ususal.  Nevertheless, I have another #MoronFiles entry for you today.

I see a lot of demand letters on behalf of my clients; a product of respresenting different websites. The standard process is: I get a wholly ridiculous demand letter, often written by some pro-per guy (which I totally give leeway to) or attorney that doesn’t practice in the internet space, let alone the niche that revolves around Section 230 of the Communications Decency Act (a “dabbler” if you will); I respond with a TRUCK LOAD of on point law – from federal statues to federal and state case law around the country (often including law in said dabbler’s jurisdiction too) explaining why their demand is without merit (aka, total garbage).  Most of the time that works because smart people or counsel will take time to read the law and come back days later trying to work out an agreement or will otherwise find an alternative path that doesn’t involve my client.  I don’t charge them for providing this free legal education that, in my opinion, (especially if they are an attorney) they should have researched before they sent said dumpster fire of a meritless demand letter.  No big deal – I like educating people.  When the tide rises – so do all the boats, right?

This was not the experience today.  Instead, I get dumpster fire demand letter from a dabbler (I looked counsel up – NOT internet law at all – as in, as far from that as one can get) and from one of my “problem child” states (yes, certain counsel from certain states tend to suck at life more than others); I send the lengthy, but relatively PC “your demand is garbage” with all the case law; and…30 minutes later…I got a response back that said something along the lines of “I disagree with your legal analysis.”  Um, first of all, there is no way in hell you read all that case law in 30 minutes; and second, if you did read it (not possible) a response of “I disagree with your legal analysis” suggests to me that you have a reading comprehension issue. So, you can’t read or you are lazy as f*ck?  Which is it?  My guess? Lazy. As. F*ck.

The additional posturing in the response back suggests to me that this is yet another dabbler who doesn’t give two shits about his/her client and is willing to file meritless legal action, to line his/her pocket with money, with no probable benefit to the client.  Assuming that the court acts in the same manner as all the other cases in this jurisdiction that my clients and others similarly situated have dealt with, and elsewhere around the country, the action will be dismissed right away with ZERO benefit to the client.

I fricken HATE attorneys like that…and this is why this person made the #MoronFiles.  Remember, not all attorneys are created equal.  Some of us actually give a crap and will do the appropriate reasearch ahead of time instead of making you look bad or making your situation worse.

Data Privacy: Do most people even deserve it?

Repeat after me: Everything connected online is hackable.  Nothing online is really ever totally private. Most everything about my online activity is likely being aggregated and sold.  This is especially true if the website is free for me to use. 

Okay, before we get going, realize that this article is not discussing things that we would like to think is relatively safe and secure…like banking and health records.  Even then, please repeat the statements above because even for those situations it still holds true.  What I’m going to talk about is the more run of the mill websites and platforms that everyone uses.

The truth of the matter is, most people never read a website’s terms of service or privacy policy and readily click the “I agree” or “I accept” button without knowing if they have just agreed to give away their first born or shave their cat.  Or, to be more realistic, that a free to use website which you don’t have to spend a penny to use is likely to track your behavior so they can render you ads of products and services that you might be interested in and/or sell aggregated data and/or your email address to marketers or other businesses that might be interested in you as a customer or to learn more about consumer habits in general.  Hello people…NOTHING IS FREE!  Indeed, most humans are lazy as sh*t when it comes to all of that reading and so forth because really, who in the hell wants to read all that?  Hey, I’m guilty of it myself,  although since I write terms of service and privacy policies as a way to make a living sometimes I will read them for pure entertainment.  Don’t judge me…I’m a nerd like that.

We are quick to use, click or sign up on a website without knowing what it is that we are actually agreeing to or signing up for…because we want entertainment and/or convenience…and we want it NOW.  Talk about an instant gratification society right? Think about the following situations as an example: Go to the grocery store and buy ingredients then take another 35-40 minutes to make dinner or simply use an app to order pizza? Send someone a handwritten letter through the mail (snail mail) or shoot them an email? Sit down and write checks or schedule everything through bill-pay? Pick up a landline phone (they do still exist) and call someone or send them a text from your mobile device?  Go to the local box office and purchase tickets to your favorite concert or buy them online? Stand in line at the theater for tickets or pre-pay on an app ahead of time and walk right in using a scan code through that app? Remember and type in your password all the time or ask your computer or use your thumb print to remember it all?  Take pictures with a camera that has film, get it developed and send those images to family and friends or take pictures with your phone and instantly upload them to a social media platform like Facebook to share with those same people, for free? By now you should be getting my point…and that is that we want convenience, and technology has been great at providing that, but for that convenience we often forget the price that is associated with it, including a loss of data privacy and security.

Low and behold, and not surprisingly (to me anyway), something like the Facebook – Cambridge Analytica situation happens and Every. Damn. Person. Loses. Their. Mind!  Why? Well, because mainstream media makes it into a bigger story than it is…and suddenly everyone is “conveniently” all concerned about their “data privacy.”  So let me get this straight: You sign up for a FREE TO USE platform, literally spend most of your free time on said platform pretty much posting everything about yourself including who your relatives are, what you like and don’t like, the last meal you ate, your dirty laundry with a significant other, spend time trolling and getting into disputes on bullsh*t political post (that are often public posts where anyone can see them), check in at every place you possibly go, upload pictures of yourself and your family…all of this willingly (no one is holding a gun to your head) and you are surprised that they sell or otherwise use that data?  How do you think they are able to offer you all these cool options and services exactly? How do you think they are able to keep their platform up and running and FREE for you to use?  At what point does one have to accept responsibility for the repercussions from using a website, signing up or clicking that “I agree” button?  Damn near ever website has a terms of service and privacy policy (if they don’t steer clear of them or send them my way for some help) and you SHOULD be reading it and understand it…or at least don’t b*tch when you end up getting advertisements as per the terms of service and privacy policy (that you didn’t bother to read)…or any other possible option that could be out there where someone might use your information for – including the possibility that it will be used for nefarious purposes.

I’m not saying that general websites/platforms that house such content shouldn’t have reasonable security measures in place and that terms of service and privacy policies shouldn’t be clear (though its getting harder and harder to write for the least common denominator).  But again, nothing is 100% secure – there will always be someone that will find away to hack a system if they really want to and it’s really your fault if you fail to read and understand a website or platforms terms of service and privacy policy before you use it or sign up for something.  Why should people scream and cry for the “head” of a platform or website when people freely give their data away?  That’s like blaming the car dealership for theft when you take your fancy new car to a ghetto ass neighborhood, known for high crime and car theft, leave it parked on a dark street, unlocked and with the keys in it.  “But they should have watned me it would get stolen!” Wait! What?Okay, maybe that’s a little too far of an exaggeration but seriously, the internet is a blessing and a curse.  If you don’t know of the potential dangers, and you don’t take the time to learn them, perhaps you shouldn’t be on it?  Remember, entertainment and convenience is the reward for our sacrifice of data privacy and security.

You know who has a heightened level of privacy, doesn’t have social media accounts hacked, data isn’t mined from online habits and doesn’t get spammed to death?  My dad.  Why? He doesn’t get on computers let alone get online and he doesn’t even own a smart phone.  True story.  The dude still has checks, writes hand written notes, and hunts for his meat and gardens for his vegetables. Can you say “off the grid”?  Want heightened data privacy?  Be like dad.

Repeat after me: Everything connected online is hackable.  Nothing online is really ever totally private. Most everything about my online activity is likely being aggregated and sold and sold.  This is especially true if the website is free for me to use.

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. 

 

 

Arizona Defamation Law

Now that nearly anyone can get online and “speek freely” it is no wonder that there is a rise in defmation 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:

  1. a false statment concerning the plaintiff;
  2. the statement was defamatory;
  3. the statement was published to a third party;
  4. the requisite fault on the part of the defendant; and
  5. 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 promissed.
    • States that someone has a contageous or vanerial 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 disprpute, contempt or ridicule” or “impeach the honestly, integrity, virtue or reputation.”
  • Libel per quod is bascially 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 fron 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 langugage 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. 

10 Online Safety Hacks You Can Implement Today

Every day you read about major companies, or even law firms, getting hacked.  Talk about some frustrating stuff! It’s even worse when it actually happens to you.  Of course, with the increase of technological convenience comes greater cyber security risk.  One of my personal favorite cyber security gurus and “Shark Tank” star Robert Herjavec recently provided insight for an article that outlined 10 safety hacks that are easy to implement if you aren’t already doing them.  What are those 10 safety hacks?  Continue reading…

Some of these seem pretty intuitive.  Others perhaps not so much but are a good idea.

  1. Enable multi-factor authentication (MFA) for all of your accounts.
  2. Cover internal laptop cameras.
  3. Don’t do any shopping or banking on public Wi-Fi networks.
  4. Ensure that websites are SSL secure (https instead of http) before making financial transactions online.
  5. Delete old, unused software applications and apps from your devices.
  6. Update your anti-virus software as soon as updates become available.
  7. Refresh your passwords every 30 days for all accounts and use unique passwords for each account.
  8. Update computer/mobile software regularly.
  9. Don’t click on unknown links or open unknown attachments.
  10. Change the manufacturer’s default passwords on all of your software.

One of my favorites is the “cover internal laptop cameras.”  I personally used to get made fun of because I would place a sticky note over the top of my camera on my computer.  I suppose it didn’t help that it was bright green (or hot pink) depending on what color sticky note I had handy so it drew attention until I was given a better one (a plastic slider made specifically for this purpose) at a networking event from Cox Business. Now it doesn’t seem so silly after all.

Another one that I know is important, but probably more difficult to do, is to “refresh your passwords every 30 days for all accounts and use unique passwords for each account.”  Holy moly!  Think of how many accounts have passwords these days?  Literally every different system/app/website that you use requires a password! One LinkedIn user listed as a “Cyber Security Specialist” for a software company offered the solution of a program like LastPass.  Apparently, according to this particular individual anyway, LastPass saves all of your passwords in a securely encrypted container on their servers and have many other built in safety features in the event of stolen or hacked data.  This way all you have to know is one password and LastPass will do the rest.  While surely there are other similar solutions out there, if you are interested, you can read more about LastPass on their How It Works page. Sounds pretty cool, right!?! It might help you break out of that password hell.

A little common sense plus adding in these 10 security hacks can go a long way! Do you have any security hacks to share? Have a favorite password protector that you use? Let us know in the comments!

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.  

Schools and Sunscreen to License Plate Covers: 10 new Arizona laws that may impact you – effective this week.

Often times, when laws are passed, they are done without most people noticing.  That’s because small changes to state statutes aren’t all that “news worthy” and it seems that the only people that care are those that wrote them.  However, starting Wednesday, August 9th, 2017, there are 10 laws that Arizonans might actually find relevant, or at least interesting:

  1. Sunscreen in School: Remember the frustration with trying to get your kid to be able to use sunscreen at school, camp or daycare without a prescription?  Stress no more!  HB 2134 fixed that by allowing school aged kids to have and use sunscreen without a note or prescription!
  2. Schools and Inhalers: I can recall growing up with asthma and recess could be troublesome without an inhaler.  Fortunately, that probably won’t be an issue anymore. HB 2208 grants trained school personnel the authority to administer a rescue inhaler to a student (or adult) provided that such student or adult is showing signs of respiratory distress during school or a school sponsored event.  It also allows schools to apply for grants and accept donations to buy inhalers and spacers.
  3. Hot Cars are No Place for Pets and Kids: We’ve seen more than our share of news stories about kids and pets being left in hot cars and dying as a result.  Passers by have long been concerned about civil liability for breaking into locked and unattended vehicles in order to rescue the pets or kids. After all, no good deed goes unpunished, right? Well, worry no more! HB2494 remedied that by protecting persons who enters a locked, unattended, vehicle in connection with the rescue of a child or pet if that person believes that the kid or pet is in “imminent danger of physical injury or death.”  The caveat is that the person MUST call the police or animal control first and stay with that animal or child under they police or animal control arrive.
  4. Background Checks for Private Gun Sales: There has been a lot of confusion surrounding whether or not one had to do a background check on someone when there was a private sale or gift of a gun. Confusion be gone. SB 1122 has made it clear that the state, county and city governments cannot require background checks to be done on private gun sales, gift, donations or other transfer.
  5. Arizonans with Disabilities Act: Businesses know that in order to operate they often need to take into consideration patrons/customers that have disabilities. There has been recent talk about this even applying to a business’s website. Nevertheless, it appears that to help out businesses, SB 1406 amends the Arizonans with Disabilities Act to give a business up to 90 days in order to cure violations for structural access before a lawsuit can be filed against them, and websites have also been exempt from from the state accessibility requirements.  Of course, for the website business owners, this doesn’t mean that a case won’t be brought against you in a different state that doesn’t have the same rules (people are crazy litigious like that) but it’s good to know that you’re seemingly safe, for now, with the laws of this state.
  6. Crummy Moving Companies Beware: Nothing says “crummy moving company” like one that will get all of your belongings loaded up and to your (in-state) destination but refuses to unload your stuff if you have a disagreement over the payment – like added surprise charges that you weren’t anticipating. HB 2145 addresses that problem by making it illegal for a moving company to fail to unload your belongings over a disagreement over the bill.  Moving companies have to provide a written contract and disclose all fees.  No more surprises = no more disagreements (hopefully).
  7. End of Life Decisions are Difficult: At the end of one’s life – decisions that are being made take a toll on all of those involved – doctors and nurses included. SB 1439 protects doctors, nurses and entire medical facilities from discrimination when they refuse to participate in or otherwise provide any service or item that would result in the death of an individual.
  8.  License-Plate Covers: For all those who think they are being slick with the fancy license plate covers, electronic devices or film that “hides” your license plates from cameras, etc. – you might want to get rid of them.  SB 1073 makes it illegal to cover your license plate in a manner that obscures the license plate from any angle.
  9. Serving Age of Alcohol Decreased: HB 2047 reduces the age in which a person can serve alcohol.  Under the old law one had to be 19 years old before they could serve alcohol.  Under the new law a person only has to be the age of 18.
  10. Pharmacists and Emergency Prescriptions: It can be scary to run out of necessary medication and not be able to get a refill timely.  SB 1269 now allows pharmacists to issue a one-time emergency refill of a non-controlled medication used to treat an ongoing medical condition in particular circumstances including when the pharmacy has had prior record of the patient such patient has a history of being prescribed such medication.

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.  

Copyright Infringement: The Basics of a DMCA Notice for Online Content

I’ve been receiving calls from people alleging that someone is infringing on a their copyright (almost always online) and asking for information relating to what goes inside a Digital Millennium Copyright Act (“DMCA”) Notice so that they can try to get the alleged infringing content removed. While there is a full legal analysis that should go into whether or not submitting a DMCA notice would be proper, if you know that you are in the right, the following are the basics that need to go into a DMCA Notice:

Any DMCA removal request directed to a website should comply with 17 U.S.C. § 512(c)(3) and include at least the following things:

  1. Your name, address, telephone number, and e-mail address;
  2. A description of the copyrighted work that you claim has been infringed;
  3. The exact URL or web address where the alleged infringing material is located;
  4. A statement by you that you have a good faith belief that the disputed use has not been authorized by you, your agent, or the law;
  5. Your electronic or physical signature or the electronic or physical signature of the person authorized to act on your behalf; and
  6. A statement by you made under penalty of perjury, that the information in your notice is accurate, that you are the copyright owner or authorized to act on the copyright owner’s behalf.

The decision to submit a DMCA Notice to a website should be made carefully.  DMCA Notices are NOT good for Reputation Management purposes and if you make any false statements in your demand (like you aren’t actually the copyright holder, etc.) the law does impose substantial liability for any damages and attorneys’ fees incurred as a result. 17 U.S.C. §512(f).

Do you have questions about the DMCA Notice process or other general Copyright related questions? 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.