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

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

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

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

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

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

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

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

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

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

From the #MoronFiles | I Demand!

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:

05/23/2017 #MORONFILES ENTRY:

Perhaps not as good as the prior entry, however, this is still worth a note because it is one of my biggest pet peeves. If an individual or entity is NOT (emphasis on the NOT) legally obligated to take any action in connection with your situation one wonders what in the world counsel is thinking when they write a letter and use the phrase “I demand…” in bold and underlined, in the closing of their letter. You “demand!?!” What? Are you my mother asking me to do my chores or else I’m going to be grounded for the summer? Given the fact that your tone is complete shit, and my client has ZERO legal obligation to do anything, your “demand” is now being filed away and NOT responded to. #DENIED! Why? Because I’m not interested in dealing with an ass-hat and you have now given me NO incentive to even look at your materials.  Moral to the story: Like my momma always says “you catch more bees with honey than you do with vinegar.” I subscribe to that philosophy…plus I like to treat others as I would expect to be treated.

 

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

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

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

The following are a few common areas of potential liability:

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

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

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

Until next time friends…

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

 

 

 

 

So Good You Can’t Make It Up | A Collection From the #MoronFiles

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 here for your reading pleasure:

07/05/2017 – A “Nominal Defendant” | Following a nice four day weekend it’s always fun to come back to the office to a freshly filed complaint against one of your clients. Said complaint was filed out of state (one in which does NOT have jurisdiction over my client for a host of reasons including Plaintiff having agreed to jurisdiction elsewhere), the “cause of action” (which isn’t really a cause of action in the first place – apparently Plaintiff’s counsel confuses causes of action with remedies) is without legal merit, and counsel called my client a “nominal defendant.” Let’s be real here; there is no “nominal defendant.” ALL defendants (in most cases anyway) will have to extend valuable resources and time to deal with even the most handicapped complaint by filing motions to dismiss for lack of jurisdiction or other defenses.  You can’t paint a rainbow on birdshit and call it a rainbow…no, it’s still birdshit.  You know, just so we are clear…

06/16/2017 – You Know You Are A Lazy Lawyer When | It’s been a busy few weeks to say the least.  This one will be short and sweet.  If you are going to spend the money to serve someone, you should probably spend some time actually trying to figure out the proper entity to name and statutory agent first.  A way you start this is by trying to run a search in this really cool search engine called Google.  And then you can also use these cool public websites where businesses are registered called the Corporation Commission for the particular state.  That will not only give you proper entity spelling but also who the proper statutory agent for service is.  Now don’t get me wrong, I know that sometimes that can be easier said that done for some entities…BUT…this particular one I have in mind is EASILY found online.  What this tells me: lazy lawyer probably just billed his client for less than half ass work that will result in NOTHING because it’s not valid. #Ignored #FeelingSorryForTheirClient

06/13/2017 – F’n LitigatorsNo offense to any of the “normal” professional litigators out there because I work with some AMAZING ones…but what the hell is with the scorched earth approach right out of the box?  You are not an ape.  Stop pounding your chest.  I understand getting a little frustrated after repeated inquiries  (when there is merit to your position) however, when you come out of the box swinging, threatening meritless litigation (because you are too lazy to f’n do some legal research before running the diarrhea of the fingers on your keyboard) you are not setting yourself up for good things to come.  This is especially true when you are asking for a favor – you know, asking someone to do something they are not legally obligated to do.  You can bet that counsel like me will remember your shit attitude in the future, your name will be marked on the “shit list”, and you won’t be given any courtesies in the future.  Your shitty attitude has just screwed any future clients who may be similarly situated.  You want to be helpful to your clients?  Check that ego at the door. Respect begets respect and people remember how you treat them.

05/31/2017 – You Signed Your Name on This? | So here is a new one for the books.  A business client of mine is served with a third-party Subpoena Duces Tecum (fancy way of saying it’s asking for documents or things) today.  Today is May 31st – and this is important and you will see why in a minute.  Okay, standard procedure…except: 1) it’s an Amended Subpoena (never received the original subpoena); 2) allegedly issued from a state court that is in another state (so yeah, that’s not going to work – domestication pal); 3) asking for information to be provided back in the middle of April “to avoid having to make an appearance” (so, we get to time travel like Marty McFly?); 4) the said date of appearance was also scheduled for back in the middle of April (hmmm, must be banking on more of that time travel); 5) the date of said Amended Subpoena was dated back on the first of this month (so you know, the document production and/or appearance was supposed to occur BEFORE it was even signed AND the person apparently couldn’t get it served for over 30 days); 6) the Subpoena had no case number; and…oh, this is the best part… 7) WAIT FOR IT…WAIT FOR IT…when I looked up the case caption…there is no case pending with that case caption in that court!  You have got to be kidding me!?!  To top it off, right there at the bottom of this pile of crap is the name, bar number and signature of the attorney that paid to have it served upon my client.  Well alrighty then Shady McShaderson…

  • 06/08/2017 – UPDATE on “Shady McShaderson” | Just when you thought that things couldn’t get any more ridiculous than what was mentioned above…when “Shady McShaderson” got called out for above mentioned antics the response back was basically that the law of the state allows for attorneys to do a subpoena without a case number.  Ummm, come again?  I’m well aware of the pre-litigation discovery process in the particular state and this is NOT in line with the procedure, pal.  I don’t care what color you paint your abuse of process turd…it’s still a stinky turd!
  • 8/23/2017 – UPDATE on “Shady McShaderson” | Whoa! Shady McShaderson got a case going! So after sending a BS subpoena, for a case that doesn’t exist, Shady McShaderson and realized we’ve ignored it, the genius counsel finally filed a case!  What did said genius counsel do? Provided us with a case number.  That’s it?  What a fricken moron.  Come on…how much lazier and shadier can you get?  Of course such action was called out and it was explained, again, what the PROPER procedure is…  The response “no worries…”  Where do they find these people?  And how do they keep a bar license?

05/23/2017 – I Demand! | Perhaps not as good as the prior entry, however, this is still worth a note because it is one of my biggest pet peeves. If an individual or entity is NOT (emphasis on the NOT) legally obligated to take any action in connection with your situation one wonders what in the world counsel is thinking when they write a letter and use the phrase “I demand…” in bold and underlined, in the closing of their letter. You “demand!?!” What? Are you my mother asking me to do my chores or else I’m going to be grounded for the summer? Given the fact that your tone is complete shit, and my client has ZERO legal obligation to do anything, your “demand” is now being filed away and NOT responded to. #DENIED! Why? Because I’m not interested in dealing with an ass-hat and you have now given me NO incentive to even look at your materials.  Moral to the story: Like my momma always says “you catch more bees with honey than you do with vinegar.” I subscribe to that philosophy…plus I like to treat others as I would expect to be treated.

05/12/2017 – Disbarred Attorney | Today I reviewed a rather rude communication from an individual who wrote a meritless threatening letter (and I mean, the person couldn’t possibly have a viable claim based upon statute of limitations and other precedent law given the situation) making dumb statements and signed their name with “a Dallas lawyer” and a request that the communication be taken seriously.  Sure thing there good buddy!  Well, when I receive communications that I perceive to be on the “shittier side of Sears” (my spin on the old “softer side of Sears” advertising) I will look into the individual.  Ah, low and behold said “Dallas lawyer,” was DISBARRED from the state of Texas over two years ago for some rather naughty stuff…as in the crime allegedly committed is a felony in the state.  Right there, on the State Bar website, CLEAR AS DAY, it said this person was DISBARRED.  The State law there says that you are not a lawyer in the state unless you are licence to practice there.  So, no person, that makes you NOT a Texas attorney…and, in fact, your state can make holding yourself out as an attorney, when you aren’t, a felony.  Get that? F-E-L-O-N-Y.  Yeah, poor decision on your part.  Asshat.

Until next time friends…

 

From the #MoronFiles | Disbarred Attorney

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:

05/12/2017 #MORONFILES ENTRY:

Today I reviewed a rather rude communication from an individual who wrote a meritless threatening letter (and I mean, the person couldn’t possibly have a viable claim based upon statute of limitations and other precedent law given the situation) making dumb statements and signed their name with “a Dallas lawyer” and a request that the communication be taken seriously.  Sure thing there good buddy!  Well, when I receive communications that I perceive to be on the “shittier side of Sears” (my spin on the old “softer side of Sears” advertising) I will look into the individual.  Ah, low and behold said “Dallas lawyer,” was DISBARRED from the state of Texas over two years ago for some rather naughty stuff…as in the crime allegedly committed is a felony in the state.  Right there, on the State Bar website, CLEAR AS DAY, it said this person was DISBARRED.  The State law there says that you are not a lawyer in the state unless you are licence to practice there.  So, no person, that makes you NOT a Texas attorney…and, in fact, your state can make holding yourself out as an attorney, when you aren’t, a felony.  Get that? F-E-L-O-N-Y.  Yeah, poor decision on your part.  Asshat.

A “kids will be kids” mindset could get parents into legal trouble in Arizona

I am fortunate enough to live in a fairly close knit community full of beautiful families and a lot of kids.  However, no matter how amazing of a community I might live in, the truth is, we, like most communities, still have the occasional chaos that neighbors will complain about.  Indeed, we hear about it all – from minor situations like barking dogs, rules of an HOA, or kids making too much dust playing in the dirt to increasingly more problematic issues like speeders, theft of packages from people’s doorsteps, and vandalism of facilities on occasion.  Our community even has a Facebook page wherein people will, in addition to posting good things going on in the community, also discuss these kinds of issues and/or put people on blast for perceived transgressions.

In this mix of issues that people will talk about includes rambunctious kids, often teenagers, that make poor decisions and choose to do things like break little kids playground equipment in the community because the equipment isn’t being utilized properly or perhaps steal items from people’s property – probably because they think it is funny and don’t really consider the consequences. Today, many people have camera phones and/or camera systems set up on their homes that catch the perpetrators in action.  The community response to these kinds of issues are as mixed as the members of the community.  Some people demand that the local police/sheriff is called.  Others will post the images, if they have them, onto Facebook as a form of public shaming.  Some will hold onto the images and complain about it on the community Facebook page hoping that the parents of children will take some responsibility and have discussions with their kids.  Even yet, some will do a combination of any or all of the above…hoping to deter future bad conduct.

In one recent example that I can think of one homeowner caught on tape what appeared to be a teenager stealing an item from his property.  The homeowner wrote on the Facebook community page about the transgression, advised that they had video of the act, and requested that the item be returned.  Of course, there was a community uproar and all kinds of advice (good and bad in my opinion) was handed out on how the homeowner should handle the situation.  Further review of the comments to the thread suggest that the homeowner spoke to the perpetrating teen’s parents and allegedly received a “kids will be kids” mentality response.    Ah…maybe “kids will be kids” but when it comes to property damage and/or theft, at least here in Arizona, that could be problematic for the parents and is something that should be taken a little more seriously.

PARENTS CAN BE LIABLE FOR THEIR “KIDS BEING KIDS”

Now if something happens that is purely accidental a parent probably won’t be found to be liable.  However, if your little Pumpkin, Prince/Princess, or Snowflake does it on purpose – well, you could have a legal battle ahead of you.  Your kid may have only taken a $5.00 Dollar Store troll doll from someone’s front sidewalk and/or smashed it in the road because it seemed funny, however, in the eyes of the person whose property was stolen or damaged…it’s not so funny.  What’s the harm?  It’s only $5.00 right?  Well, let’s look at how this can escalate into a mess that could cost you well over $5.00 to deal with.

CIVIL LIABILITIES IMPUTIMPUTEDED TO THE PARENTS

Arizona Revised Statute § 12-661 covers liabilities of parents or legal guardians for malicious or willful misconduct of minors.  As of this writing, Section 12-661(A) states “Any act of malicious or wilful misconduct of a minor which results in any injury to the person or property of another, to include theft or shoplifting, shall be imputed to the parents or legal guardian having custody or control of the minor whether or not such parents or guardian could have anticipated the misconduct for all purposes of civil damages, and such parents or guardian having custody or control shall be jointly and severally liable with such minor for any actual damages resulting from such malicious or wilful misconduct.”  Section 12-661(B) states “The joint and several liability of one or both parents or legal guardian having custody or control of a minor under this section shall not exceed ten thousand dollars for each tort of the minor. The liability imposed by this section is in addition to any liability otherwise imposed by law.”  Emphasis of bold, italics, and underlining added.

HOW THINGS CAN GET EXPENSIVE FOR UNSUSPECTING PARENTS

Depending on how important the issue is to the homeowner, and how much damage was done, the homeowner very well file a complaint against you for the actual damages utilizing A.R.S. § 12-661 AND any other related civil causes of action including legal theories like negligence and the duty of care (especially if parents had notice of the misconduct and failed to do anything to try and deter such behavior) which may provide for monetary remedies beyond actual damages.  More than one child involved?  You may have to multiply those damages per child involved.  Further, most insurance companies will not agree to pay out claims caused by an intentional act so one shouldn’t rely on that either.

Depending on the damage amount claimed or estimated in a compliant will determine which court (Small Claims Court – up to $3,500, Justice Court – up to $10,000, or Superior Court – over $10,000) your matter will be heard in.  The general rule of thumb, the bigger the court, the more expensive the filings fees and other costs may be.  For example, a response to a complaint filed in the Maricopa County Superior Court currently costs $237.00.   Need to hire an attorney to defend you in the civil matter?   A recent State Bar of Arizona magazine article has suggested that the billing rate for many attorneys in Arizona is $275.00/hr.  I have colleagues that bill upwards of $465 an hour and some have a minimum bill of .2 – that’s 12 minutes or $55.00 if your attorney bills the $275/hr.  Send a text message asking about your case.  That’s $55.00 done and gone – just like that. I can advise from experience that many attorneys will expect an upfront retainer of $5,000 – $25,000 depending on the complexity of the matter and your Answer to a Complaint alone can run $2,500 or more.  Then you add in the legal research fees, the copy fees, mailing fees and anything else that might be required for your case.  What about your time?  Your time is valuable right?  What about the time you will have to devote to tending to legal matters?  Time is the one thing you can’t get back…

FAILURE TO CORRECT ACTIONS ON LITTLE THINGS CAN LEAD TO BIGGER PROBLEMS

As adults we are all likely aware of the big Bernie Madoff situation where he stole $18 billion (yes, billion with a B) from investors.  No one starts out with big things. No one sets out to have a career of misdeeds that can land them into legal trouble just as an addict doesn’t take their first hit or sip anticipating becoming an addict.  Apparently Madoff told Vanity Fair “Well, you know what happens is, it starts out with you taking a little bit, maybe a few hundred, a few thousand…You get comfortable with that, and before you know it, it snowballs into something big.”  Now it’s a stretch to compare kids to Bernie Madoff, however, you get the point – and the psychology on it is pretty much the same.

According to the Association for Psychological Science, “[a] new study finds that getting away with minor infractions ends up making it easier for people to justify bigger, more serious ethical violations.   Over time, small ethical transgressions – like stealing pens from work – can put employees on the ‘slippery slope’ of increasingly bad behavior.”  You can review the full article here.  This is why it is imperative that parents take action with even the smallest of issues – which includes figuring out why your child is misbehaving (which might include seeking assistance from a family counselor, doctor, support group, etc.), determining appropriate consequences and sticking with those consequences.  It’s also important to monitor your kids behavior and keep him/her away from situations in which there is temptation to continue with poor choices.

 

Until next time friends…

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

 

 

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

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

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

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

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

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

TERMS OF SERVICE:  WHY YOU SHOULD CARE.

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

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

DON’T BLAME THE WEBSITE FOR YOUR MISTAKE.

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

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

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

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

Until next time friends…

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

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

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

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

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

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

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

You can review the entire Memorandum Opinion here: 

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Until next time friends…

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

 

 

 

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

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

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

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

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

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

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

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

Until next time friends…

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

 

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

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

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

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

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

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

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

Until next time friends…

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

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

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

Advocate
Rule 3.1 Meritorious Claims And Contentions

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

 

 

Fighting Fair on the Internet – Part 10 | That Would be Harsher Punishment for Internet Defamers Stan…

For many reasons the movie Ms. Congeniality with Sandra Bullock has been a long time favorite of mine.   Especially when she answered the question “What is one of the most important thing our society needs?” with “That would be harsher punishment for parole violators Stan…and world peace!”  I’m pretty sure since that movie first came out in 2000 I have been remixing that one-liner to fit my varying smarty pants comeback needs.  In fact, in muddling to myself just this morning after reviewing some dyspeptic online commentary I determined that I would answer the question “That would be harsher punishment for internet defamers Stan…and world peace!”  It’s true…internet defamers and harassers really do suck.

In my line of work, and in my every day life, I see people being nasty to one another online – and sometimes people really cross the line and forget that words do hurt.  Sometimes I wonder what happened to the good old fashioned “take it out behind the barn and duke it out…looser buys the other guy a drink” form of justice.  Back in the day (and I really hate saying that because I am not THAT old) if anyone ran their mouth in person like they do today online – man, they’d get a beat down and, quite honestly, they would have probably deserved it.  To make matters worse, you get the morons that jump on the keyboard warrior band wagon without having the first clue about what is REALLY going on and they either share the crap out of the false stuff or otherwise join in on the bashing.  When is enough, enough?  What the hell happened to the human connection and manners?  So much of society needs a good metaphorical kick in the teeth.  The First Amendment doesn’t shelter you from false and defamatory statements nor should it be abused as a license to be a jerk-face.  Unfortunately, unlike the “old days,”  it no longer hurts to be stupid and run your mouth.

Indeed I am a Section 230 Communications Decency Act (“CDA”) supporter, because I don’t think that websites should be held liable for the stupid crap that other people do; after all, that mentality is akin to an over weight person blaming the spoon manufacturer for making a spoon that they can use to eat and get fat with.  “…but, but, the spoon made me fat!”  And to those who just read that and got all defensive – clearly my reference isn’t to those who have medical issues or things outside of their control.  I’m talking about the person who is heavy because of purposeful overeating, failing to do exercises, etc.  Sometimes life happens.  We get busy and fail to take care of ourselves as we should but we can’t blame the spoon manufacturer for it.  The spoon didn’t make us fat.  We have no one to blame but ourselves.  This is absolutely no different and trying to hold websites liable for the stupidity of third-parties is asinine to me.  Yes, yes, I am well aware that the CDA protects websites from liability from third-party content, however, it doesn’t seem to stop people and attorneys from filing frivolous lawsuits…but I digress here.  That is another story for another day.  However, I do think that there should be some serious punishment for all these people who purposefully go out of their way to post false and defamatory information about others…the same goes for harassers.  Perhaps if these people got hit harder in the pocket book or were forced into doing community service – like helping with anti-bullying and harassment initiatives, maybe THEN it would slow down. There just needs to be more education and more deterrents.  It’s far too easy to sit behind the keyboard and be mean.  MEAN. PEOPLE. SUCK.

Until next time friends…

 

 

 

What’s in a Personality Test? Inside the Mind of Someone in the 8-12% ESTJ Category.

A few months ago I had the privilege of meeting a gentleman at a conference that explained to me his unique hiring process for his law firm. Instead of hiring and promoting based upon the traditional norms that one would expect he explained his philosophy for utilizing a personality test. Yes, that’s right, a personality test. As a person who has been in a position to do hiring and firing of employees and putting together teams – often moving people to coincide with their strengths so the can succeed rather than setting them up to fail – I was fascinated by this concept.  Truely fascinated. By the end of the short and casual conversation I felt that this guy had my personality pretty much pegged which made his comments regarding me being “rare” and “valuable” all the more interesting.  Apparently I was, in his mind at least, a “visionary” who also possessed the ability to “follow through.”

I’d like to think that I’m rather humble and maybe have a hard time accepting such compliments, especially when it comes to work, but this peaked my curiosity and I honestly wanted to know what it was that he saw that wasn’t so readily apparent to me. I didn’t see the significance. He then offered to allow me to take a personality test and visit with me about the results. I was absolutely interested and I almost couldn’t take it fast enough.  The results?  He was right!  The results suggested that I was indeed a visionary and a follow through person with the added near off the chart ability to adapt and work in a position that may not suit my personality for a long period of time and need for a high level of autonomy once I have mastered a task – which doesn’t take long for me.  I guess that explains why I’m not the “job hopping” type.  Sounds great, right?  Well, it depends on how you look at it, but for me, it kind of explains a lot about struggles I have experienced.

After taking his test (via the Culture Index) I really started digging in and trying to learn and understand more about what made me tick. I want to understand why I can butt heads with certain individuals yet have so many who have worked with me and under me say “take me with you” when I’ve considered a change in employment.  Accordingly, I began taking additional legitimate personality tests and studying up on my results.

Research suggests that people with personalities like mine make up only about 8-12% of the population.  This “executive” personality, also referred to as ESTJ by psychologists, is shared with people like Sonya Sotomayor, John D. Rockefeller, Steve Jobs, “Judge Judy,” Frank Sinatra and James Monroe.  At least I’m among some interesting company, right?  According to a test taken at 16Personalities.com I’m part of 11% of the population  with my ESTJ (-A/-T) personality.
Nevertheless, as cool as all this sounds, having this type of a personality can be both a blessing and a curse at the same time…but at least it is now making more sense.  16Personalities.com explains that “[s]trong believers in the rule of law and authority that must be earned, Executive personalities lead by example, demonstrating dedication and purposeful honesty, and an utter rejection of laziness and cheating, especially in work.”  Yeah, that last part is indeed a struggle for me.  I know when someone is being lazy or sort of halfassing something in order to just barely past muster.

Similarly, because I think of any group I’m part of as a team, the following passage from 16Personalities.com also makes sense: “Executives don’t work alone, and they expect their reliability and work ethic to be reciprocated – people with this personality type meet their promises, and if partners or subordinates jeopardize them through incompetence or laziness, or worse still, dishonesty, they do not hesitate to show their wrath.  For me, I don’t know that I would call it “wrath” per se, as I typically will handle matters as diplomatically as possible, but indeed I can see through BS and depending on the situation I may call someone on it.

Along the same lines, 16Personalities.com states that those with Executive personalities “show clear and consistent tendencies, and these are especially visible in the workplace. Whether subordinates, among colleagues or as managers, people with the [Executive] personality type create order, follow the rules, and work to ensure that their work and the work of those around them is completed to the highest standards. Cutting corners and shirking responsibility are the quickest ways to lose respect.”  This could not be more true for me. Not to say that a cut corner with a solid purpose won’t fly and may not even been encouraged when necessary, but when it’s to just be “good enough” without reason that I struggle with it.

I suppose it’s not all bad though.  Thanks to research, I have learned that the strengths of this personality of mine include (as provided by 16Personalities.com):

  • Dedicated – Seeing things to completion borders on an ethical obligation for Executives. Tasks aren’t simply abandoned because they’ve become difficult or boring – people with the Executive personality type take them up when they are the right thing to do, and they will be finished so long as they remain the right thing to do.
  • Strong-willed – A strong will makes this dedication possible, and Executives don’t give up their beliefs because of simple opposition. Executives defend their ideas and principles relentlessly, and must be proven clearly and conclusively wrong for their stance to budge.
  • Direct and Honest – Executives trust facts far more than abstract ideas or opinions. Straightforward statements and information are king, and Executive personalities return the honesty (whether it’s wanted or not).
  • Loyal, Patient and Reliable – Executives work to exemplify truthfulness and reliability, considering stability and security very important. When Executives say they’ll do something, they keep their word, making them very responsible members of their families, companies and communities.
  • Enjoy Creating Order – Chaos makes things unpredictable, and unpredictable things can’t be trusted when they are needed most – with this in mind, Executives strive to create order and security in their environments by establishing rules, structures and clear roles.
  • Excellent Organizers – This commitment to truth and clear standards makes Executives capable and confident leaders. People with this personality type have no problem distributing tasks and responsibilities to others fairly and objectively, making them excellent administrators.

I find all of these to be true, especially the last two.  I genuinely enjoy taking a business, observing its processes and figuring out how to make it more organized and efficient – especially if it results in a reduction in costs/overhead.  It’s just a skill that I have and one that I have used to create departments and implement policies and procedures for the same successfully.   In fact, if your company could use some help in this department, contact me for consulting! I’m happy to help!

At the same time, however, some of the typical weaknesses that I do recognize with my personality is that I can be considered stubborn or inflexible (especially without proof of concept) and I can find it difficult to relax.  A need for respect fosters a need to maintain dignity, which can make it difficult to cut loose and relax for risk of looking the fool. This is true in personal life and at work. Similarly, when it comes to work being done right, because I cannot accept shoddy or incomplete work, it’s not out of the ordinary for me to either send the work back to be fixed as many times as necessary or to just take it upon myself to fix the problem before it is presented. That need for respect and not wanting to look like a fool extends to work product as well for myself, my firm, or company I’m working for which means that if I am not careful, I can become overloaded and then feel overwhelmed.  Fortunately I am cognizant of these issues and I work on keeping myself in check.  Sometimes I’m better at it than others for sure.

All I can say is if you haven’t taken a personality test before, do it!  The test from 16Personalities.com had incredibly accurate results for me and the write up is quite interesting as you can see from some excerpts from this blog article.  Maybe you too will have an “Ah ha!” moment and have a greater understanding of how you operate and interact with others the way you do.  Who know, maybe through self evaluation you will realize that the job you are in now isn’t what’s best for you personality type and you may just decide to make a change for the better!  Life is short…find what makes you happy and feeds your soul.

Until next time friends…

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

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

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

Providing some background and context…

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

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

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

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

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

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

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

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

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

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

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

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

The up-hill battle made WORSE by content scrapers.

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

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

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

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

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

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

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

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

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

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

Until next time friends…