A Surgeon Can Be a Janitor, but a Janitor Can’t Be a Surgeon: Delegating Within a Zone of Genius

We hear the phrase “zone of genius” often, whether in self-help articles about unlocking your potential or figuring out how to maximize your potential at work. Sometimes you might hear one say “I’m in my zone!” as a synonymous phrase. Essentially, being in the “zone,” so to speak, is merely the mash up of your top talent and your purpose.

The article title says “a surgeon can be a janitor but a janitor can’t be a surgeon.” Think about that for a minute. In breaking this down as a preface for the rest of this conversation, let’s consider each position (a janitor and surgeon) in terms of one’s top talent and purpose. For the sake of argument, let’s assume that each person in the position, the janitor and surgeon, absolutely LOVE what they do.

If you are a janitor, your talents may lie within keeping the premises of a building/facility in tip-top shape though knowing the best chemicals to use, application and have a process in which you go about your job. The purpose is to do just that, to keep facilities clean. No doubt it is laborious work and a great, and much appreciated, trade. One might expect a modest wage from this trade. On the bright side, because college and all that jazz isn’t for everyone, you don’t have to spend years and mega $$$ to do it. If you have drive, and are willing to put in some elbow grease, you can be great in your field.

A surgeon on the other hand has talent in a steady hand and highly specialized medical knowledge. These talents are obtained through years of very specialized, and very costly education, and a specialized board certification. Their purpose is to conduct surgeries in order to help heal people, often with very serious or life threatening problems. While also laborious, and highly stressful, one can expect to be paid a much higher wage because of that specialty.

Can a surgeon be a janitor? Sure, if that person wanted to do facility maintenance no doubt they could pick up a mop or broom, roll their sleeves up, and get to work. At the same time, the surgeon would not be operating within their “zone.” Okay, now let’s reverse that. Can a janitor be a surgeon? Generally speaking, no, they cannot. That is because they haven’t had all of that specialized training and certifications, right? Also, the janitor wouldn’t be working within his/her “zone” either.

Let me give you a hypothetical: Imagine being at the hospital preparing for your heart surgery, the nurse walks in and says: Sorry, Tim (or whatever your name is) your cardiac surgeon, Dr. Miller, won’t be conducting your surgery today because he’s out with the flu. However, Ron, our most amazing janitor who was steady with a blade in taking gum off the floor last week, is going to stand in for him.

Consider another hypothetical: Imagine a busy ER, lots of trauma patients are rolling in from a serious multi-car traffic accident who all are going to need surgery. Dr. Miller is the only surgeon on staff and has to operate on all of these patients within the next 24-48 hours. Because of the number of patients who have been coming in, the hospital facility is in need of some cleaning, but janitor Ron is out on vacation for the next two days. Now imagine that the hospital president came down from his/her office to ask Dr. Miller to stop seeing patients and to mop up some floors and take out the trash.

Okay, clearly these are totally ridiculous stories and arguably would never happen. After all, would it ever really make sense to ask a janitor to be a surgeon, or for a high paid surgeon to do a janitor’s job? From a practical, and business standpoint, no, it would not. I suspect you’d agree that in a crowd of people you might more easily find people who could take on the task of being a janitor rather than one that would be qualified to be a surgeon, right? Interestingly, while it absolutely makes sense to see why a janitor can’t be a surgeon, and why a surgeon shouldn’t be asked to be a janitor…we still see this exact situation playing out…just with other fields.

Think about your own past work history. How many times have you, or someone you know, been educated/trained to do one particular job and then, from left field, management asks one to do something totally outside of the “zone.” I’m not talking like out of your comfort zone…but rather actually out of your “zone of genius” type of zone? If you are like me, you’ve been there, done that, and have a t-shirt to commemorate the frustration your felt from it.

A Note to Managers:

Hopefully you would agree that it doesn’t make sense to pay a surgeon to do janitors work. Similarly, it doesn’t make sense to have your accountant drafting your legal documents, or to have your general business lawyer trying to tackle your technology projects. Different trades require different skill sets. Of course, I’m not saying you can’t ask for occasional help with side projects here and there (especially if you are a start-up company and are lean on resources) but if you’re constantly going to the surgeon asking them to do janitor’s work – perhaps it’s time you considered engaging a janitor.

When you hire, or delegate out tasks, focus on delegating tasks within your employee’s “zone of genius.” Not only will it increase productivity (which ultimately helps the bottom line) but will also help keep moral higher and therefore reduce costly turnover. After all, no surgeon puts in all of the time, effort, and other resources that it takes to become a surgeon because they want to take over the janitor’s mopping.

Until next time friends…

Legal fees: 7 ways that YOU may be contributing to a higher legal bill

No one loves legal fees and with the advent of the internet, and all of these “free” forms and information online that people now have access to, many lay people seem to think that paying for a lawyer’s time is overrated or that you could have obtained the same information elsewhere for a fraction of the cost. If you are starting with that mindset, you are setting yourself up to be frustrated with your lawyer and with the inevitable bill. If that is you, save yourself and your potential lawyer some aggravation…don’t engage an attorney. Take your chances with whatever you can find online, which may or may not be right for you and your situation, and run with it. No, really. It’s not with the frustration for either of you. No business, lawyers/law firms included, want to deal with a disgruntled client/customer that is going to nickel and dime them because they think they could have gotten a better deal elsewhere. There may always be someone “better qualified” or “cheaper” although the two don’t usually coincide with one another. The question then becomes, can you have a good working relationship with your lawyer? That’s what you really want.

If you do decide to move forward with an attorney, understand that there are things that YOU might do that can make your lawyer bill even more expensive:

1) Thinking that your situation is “simple” and being stuck in that mindset even when you are told that your situation isn’t “simple.” The matter may be simple to you, but that’s because you aren’t going to think of all the same things your lawyer is. Most matters are far more complex than what a client thinks it is. The more complex a matter is or the more complex the lawyer says it is, the higher the bill will likely be. Expect it.

2) Taking a free legal template document (which is SO basic it that it likely doesn’t actually cover what you need to accomplish your goals) and asking a lawyer to review it. Chances are, no lawyer is going to look at that and think that it is a legal masterpiece; but you are going to pay them to look at it anyway, and it’s likely going in the garbage. If that is where you are starting, you are better off asking the lawyer to draft and agreement or other legal document from scratch. At least then you aren’t paying for their time to read something that they likely won’t use in the first place.

3) Not being forthcoming with information to begin with. You have to remember that your attorney doesn’t know the matter or the parties like you do. It is up to you to help get your attorney up to speed on all the specifics and timely provide them with the information they request. You also have to remember that if your attorney’s job is to help protect you from some other party or risk, they are going to assume, and try to prepare for, the very worst. If you have a good lawyer, they are likely going to dig and ask questions to help them do that. Some questions you may not be comfortable answering but it is best to answer them anyway because if you don’t, and your attorney is suspicious of the situation, they will dig for themselves and you will be expected to pay for their digging.

4) Providing hasty inadequate answers to, or otherwise failing to actually address, your lawyer’s questions. If a lawyer doesn’t feel they are getting the whole story, a good one will dig for more information to find the answers to their questions and it will likely be done at your expense. It’s better to be forthcoming and provide as much information as is requested or possible (it’s better to over disclose than under disclose) and provide such information in a methodical and organized manner as you can. Don’t just dump a bunch of papers in a box and say “Here ya go!” Your lawyer will charge you the time it takes to organize all of the materials.

5) Providing incorrect answers to your lawyer’s questions. A good lawyer will trust the information they are given but will also verify the information provided. If your attorney finds even one answer wrong/inconsistent from prior statements given to them, they are not going to trust what you (or whoever) are telling them and will have to verify all of the information given to them. You should always back up your statements with the documents supporting your statements. The more time your lawyer has to spend verifying the accuracy of the information that has been provided, the bigger the bill.

6) Not heeding warnings and advice of your lawyer. A lawyer can never protect you from all risk, but they can tell you when there are major red flags and discuss ways to avoid it. Asking your lawyer to move forward, especially when you want to be cutting corners on recommended due diligence, increases the risk of the transaction or situation and also makes the attorneys job 10 times harder than it needs to be. This is because without the proper information they have to try to plan for, and anticipate, all of the unknowns. The longer and harder your lawyer has to think, especially where there are unknowns, the higher the bill is likely to be.

7) Being “needy.” Attorneys aren’t often called “counselors” for nothing. Many situations can be very emotional and often people want to rely on their attorney for emotional support, a safe ear, and a constant source of reassurance. It happens to the best of us! At the same time, if you are the type of person that desires a lot of interaction and attention from your attorney, you should plan on and be prepared for, a higher bill. Why? Well, you have to think that even though you are a valuable client, chances are, your lawyer has other clients and projects. If they are in the middle of a project, and you call or keep sending text messages or emails, that interrupts their train of thought and their attention is diverted to you. Your attorney has to reorient their brain to address your call, text or email and then, when they are done with your matter, they have to again reorient their brain back to whatever it was they were working on and try to figure out where they were. It can be much like working from home when you have a few small, and unattended, children. The time that they give you to vent, be it on the phone, text or via multiple emails, and the time it takes them to reorient themselves back to their prior project, may very well end up on your bill and you should expect it. Just assume a .1, at least, to be on your bill, for every communication you initiate. Your attorney may be kind and write off some time, but you shouldn’t expect it.  Think about it…would you go to work and then tell your boss to deduct money from your pay check even though you spent time on work projects for your boss?

Lawyers can be expensive but you can lessen the financial burden by giving a little more consideration to how you interact with your lawyer. The more work or hand-holding they have to do, the bigger your bill will likely be, regardless of how “simple” you think a task. Help them, help you.

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.

 

 

 

 

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)

Trademarks and Fair Use in Commentary

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

Due to the overwhelming issues that I see with these cease and desist letters, I thought it might be good to cover some basics:

What is a Trademark?

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

Protecting your Trademark.

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

Trying to use Trademark as a Reputation Management Method.

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

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

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

 

Five Benefits to Keeping Your Business Lawyer in the Loop

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

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

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

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

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

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.  

 

ADA Compliance and Websites: Yes, it’s really a thing.

I’ve said it before…it seems like everyone today has a website.  Whether you are a stay at home mom blogger, operate an e-commerce boutique shop, a local mechanic shop with a basic website or a full blown tech company – chances are you are no stranger to the internet and websites. Websites are how people find and interact with you or your company. Depending on what your website is designed for, you may have more risks to consider.  For example, as I recently discussed, if your website hosts third-party content, there are risks associated with that kind of a website.  Similarly, if your website collects email addresses so that you can later market to them, that presents an email marketing risk. This article is going to briefly discuss a new potential risk for website operators – that is compliance with the Americans with Disabilities Act of 1990 (ADA).

You might be thinking: “How could a website become an issue with the ADA?”  That was my initial reaction too until I considered people who are blind or have a hearing impairment.  It’s easy to take for granted senses that we are used to having.  Think of all the “closed captioned (cc) for the hearing impaired” text that we have heard/seen on the television in the past.  Well, how does that work for those videos that you are making and posting to your website?  How do people navigate your website if they can’t see? Until a recent conference I had never even thought about how a visually impaired person accesses the internet.  I have since discovered that the visually impaired often access the internet through a special screen reader.  JAWS seems to be the most popular and I found a few interesting YouTube videos that give a demonstration of the JAWS program from different perspectives.  If you are curious, like I was and want a unique perspective that may help you with your website accessibility, you can see two of the links I found HERE and HERE.  The second video is from a student’s perspective which has a lot of good insight – including difficulties with .pdf documents, etc.

The above examples coupled with the legal actions that have been taken against websites in relation to an ADA claim, and the fact that I am starting to see solicitations from Continuing Learning Education companies teaching attorneys how to initiate actions, sends a solid message that this is something people/businesses need to be thinking about as they move forward with their existing websites and/or build out  new websites.

THINGS TO KNOW AND UNDERSTAND:

  • The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination and ensures equal opportunity for persons with disabilities in employments, State and local government services, places of public accommodations, commercial facilities, and transportation.
  • These laws can be enforced by the Department of Justice (DOJ) through private lawsuits and indeed there are cases where the DOJ has specifically stated in rulings that websites should be designed so that they are accessible to those who have physical disabilities including vision and hearing.
  • The DOJ has already required some websites to modify their sites to comply with the ADA guidelines – see the Web Content Accessibility Guidelines (WCAG) 2.0.
  • There is no set required standards YET but it’s expected soon and they may require compliance within 12 months from the date of publication of the new standards to the public register.  If you have a big website, and perhaps a lot of changes that will need to be made, that isn’t a lot of time.

WHAT IS BEING LOOKED AT FOR COMPLIANCE?

WebAIM.org appears to be a pretty decent resource for information.  They have a pretty comprehensive checklist that may assist you and your website developing team out, however, below is a few points for consideration:

Information and user interface components must be presentable to users in ways they can perceive.

  • Guideline 1.1: Provide text alternatives for any non-text content so that it can be changed into other forms people need online – think of large print, speech, symbols or simpler language.
  • Guideline 1.2: Provide captions and alternatives for multimedia.
  • Guideline 1.3: Create content that can be presented in different ways (for example a more simplistic layout) without losing information or structure.
  • Guideline 1.4: Make it easier for users to see and hear content including separating foreground from background.

User interface components and navigation must be operable.

  • Guideline 2.1: Make all functionality available from a keyboard.
  • Guideline 2.2: Provide users enough time to read and use content.
  • Guideline 2.3: Do not design content in a way that is known to cause seizures (like flashing content)
  • Guideline 2.4: Provide ways to help users navigate, find content, and determine where they are.

Information and the operation of user interface must be understandable.

  • Guideline 3.1: Make text content readable and understandable.
  • Guideline 3.2: Make web pages appear and operate in predictable ways.
  • Guideline 3.3: Help users avoid and correct mistakes.

Content must be robust enough that it can be interpreted reliably by a wide variety of user agents, including assistive technologies.

  • Guideline 4.1: Maximize compatibility with current and future user agents, including assistive technologies.

WHAT IF MY WEBSITE ISN’T COMPLIANT?   

For websites that aren’t compliant the following are some things you should consider:

  • Have a 24/7 telephone number serviced by a live customer service agent who can provide access to the information on the website – the phone number must be identified on the website and be accessible using a screen reader.
  • Consider starting to make adjustments to your website to help ensure you are compliant.

NEED HELP ENSURING COMPLIANCE?

It is always a good idea to get a formal legal opinion on these kinds of matters if in doubt. Being proactive is a far better position to be in than being reactive and in a time crunch and money might be tight. If you are in the state of Arizona, and need help with suggestions on how to help make your website ADA compliant or would like to discuss this topic generally so that you have a better understanding of how this issue might impact your business, 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.  

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

The following are a few common areas of potential liability:

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

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

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

Until next time friends…

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

 

 

 

 

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…

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…

 

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

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

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

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

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

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

Until next time friends.