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

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

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

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

BACKGROUND: QUESTIONABLE DEFAMATION CASES AND COURT ORDERS

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

As the brief says:

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

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

(1) injunctions gotten in lawsuits brought against apparently fake defendants;

(2) injunctions gotten using fake notarizations;

(3) injunctions gotten in lawsuits brought against defendants who very likely did not author the supposedly defamatory material;

(4) injunctions that seek the deindexing of official and clearly nonlibelous government documents – with no notice to the documents’ authors – often listed in the middle of a long list of website addresses submitted to a judge as part of a default judgment;

(5) injunctions that seek the deindexing of otherwise apparently truthful mainstream articles from websites like CNN, based on defamatory comments that the plaintiffs or the plaintiffs’ agents may have posted themselves, precisely to have an excuse to deindex the article;

(6) injunctions that seek the deindexing of an entire mainstream media article based on the source’s supposedly recanting a quote, with no real determination of whether the source was lying earlier, when the article was written, or is lying now, prompted by the lawsuit;

(7) over 40 “injunctions” sent to online service providers that appear to be outright forgeries.

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

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

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

RED FLAGS THAT SHOULD CAUSE YOU PAUSE

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

RED FLAGS FOR ATTORNEYS

  • If the entity or person feeding you the “lead” is in the reputation management industry.  You want to do some due diligence.  You could be dealing with a total above board individual or entity , and the lead may be 100% legit, BUT the industry seems to consist of multiple “companies” that often lead back to the same individual(s) and just because they are well known doesn’t necessarily mean they are operating above board.  Do your homework before you agree to be funneled any leads.
  • If the client is asking you to make some unusual adjustments to your fee agreement.  Your fee agreement is likely pretty static.  If the client is requesting some unusual adjustments to your agreement that make you feel uncomfortable, you might want to decline representation.
  • If the client already has “all of the documents” and you don’t actually deal with the defendant. We all want to trust our clients, but as some counsel already experienced, just accepting what your client tells you and/or provides you as gospel without a second thought can land you in hot water.  Consider asking to meet the defendant in person or have them appear before a person licensed to give an oath and check identification, such as a notary public of YOUR choosing to ensure the defendant is real and that the testimony that they are giving in the declaration or affidavit is real.  You want to make sure everything adds up and communication by telephone or email may not protect you enough.  When it comes to documents provided by the client, or the alleged post author, watch for the following:
    • Ensure that the address listed on any affidavit or other document isn’t completely bogus.  Run a search on Google – is it even a real address?  For all you know you could be getting an address to the local train track.
    • Ensure that any notary stamp on an affidavit is inconsistent with where the affiant purports to live. It will rarely make sense for an affiant list their address as, for example, Plains, New York but the notary stamp suggests the notary is based out of Sacramento, California. It will make even less sense if the affiant supposedly lives out of country, but is being notarized by a notary in the states.
    • Ensure that the notary is actually a real notary.  You can typically find record of notaries with the Secretary of State that the notary is in.  Make sure they are a real person.  If you really want to be sure that they actually signed your document, and that it wasn’t “lifted” from elsewhere (yay technology) check in with the notary and/or see if their records are on file somewhere publicly that you can check.
  • If the entity alleged to be the plaintiff isn’t actually a real entity in the state that they are purporting in the complaint to be from.  If the plaintiff is supposed to be ABC Ventures, LLC out of San Diego, California, there should be a record of ABC Ventures, LLC actually listed, and active, on the California Corporation Commission website.  The people that you are talking to also should, in theory, be the members/managers of such entity too.  For example, if you are always talking to a “secretary” you might want to insist on a more direct contact.
  • If the person or entity listed to be the plaintiff isn’t actually listed in the subject URL in the complaint.  If a plaintiff is going to bring a case, they should at least have standing to do so.  You should be cautious of any plaintiffs that aren’t actually at issue or fails to have a valid direct connection that would give them standing to bring the claim.
  • If the subject post doesn’t contain any defamatory statements in the first place.  Just because a post isn’t flattering doesn’t mean that it is actually defamatory.  Similarly, public documents aren’t typically seen as defamatory either. Who is saying it is false? Why is the statement false? What evidence supports the allegation that it is false?  
  • If the subject posting is outside of the statute of limitations for bringing claims in the state in which you intend on filing.  Now I know that some may disagree with me, and there may be bar opinions in different states that suggest otherwise, however, if you are presented with a post that is outside of the statute of limitations to bring a claim for defamation, subject to the single publication rule, and there is no real reason for tolling (like it was held in a secret document not generally public – which pretty much excludes the items on the internet) that may be of concern to you.  I wrote before on why statute of limitations is important, especially if you are the type to follow ABA’s Model Rules of Professional Conduct, Rule 3.1.  Even here in Arizona the bar has raised in disciplinary proceedings, in connection with other infractions, concerns about bringing claims outside of the statute of limitations, citing a violation of ER 8.4(d).  See generally, In re Aubuchon233 Ariz. 62 (Ariz. 2013).
  • If a case was filed in a wholly separate state from the Plaintiff and Defendant and you are asked to be “local counsel” to marshal documents to court or simply to submit it to a search engine like Google.  It is not improbable that local counsel will be called to assist with basic filings or to submit an order to Google.  It may be possible that such documents contain questionable materials.  It’s always a good idea to review the materials and give it a heightened level of scrutiny before just marshaling them off to the court or search engine.  This is especially true if the Plaintiff is no longer associated with prior counsel and is just looking for a different lawyer to help with this “one thing” as if a submission from an attorney bears more weight that anyone else submitting it.
  • If the plaintiff claims to already know who the author of a subject alleged defamatory post is, yet the post itself is anonymous.  Yes, it is possible that based on an author’s content, and how much detail is placed in such post, that one might be able to figure out who the author is. However, in my experience, many authors tend to write just vague enough to keep themselves anonymous.  If that is the case, without a subpoena to the content host, how does one actually know who the author is?  Some states like Arizona have specific notice requirements for subpoenas that are seeing identifying user information which require notice being posted in the same manner, through the same medium, in which the subject posting was made.  If a notice isn’t present on the website, there likely wasn’t a subpoena (assuming the website requires strict compliance with the law). Mobilisa, Inc. v. Doe, 170 P.3d 712, 217 Ariz. 103 (Ariz. App., 2007).
  • If the case was settled in RECORD TIME.  Often these matters are being “resolved” within a few weeks to only a couple months.  As most of us know, the wheels of justice are SLOW.
  • If the case is settled without any answers or discovery being done.  This goes to my prior point about knowing who the real author is, or, for that matter, that the allegations in a subject post are even false.
  • If notice about the case was not personally served by a process server.  Many states allow certified mailing for service.  Do you really know who is signing that little green form and accepting service?  Was some random person paid to sign that?

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

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

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

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

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.
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From the #MoronFiles | Note to Dabblers: When in doubt, refer it out!

PRELUDE: 

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

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

09/10/2018 #MORONFILES ENTRY:

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

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

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

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

Until next time friends!

 

Arizona Defamation Law

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

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

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

ARIZONA DEFAMATION LAW – THE BASICS

The Elements of Defamation in Arizona.

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

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

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

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

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

Distinguishing between defamation per se and defamation per quod.

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

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

Statute of Limitations for Defamation in Arizona

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

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

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

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

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

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

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

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.

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.

 

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

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

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

Advocate
Rule 3.1 Meritorious Claims And Contentions

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

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

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

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

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

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

 

 

Fighting Fair on the Internet – Part 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…

 

 

 

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…

 

You Named Your Kid What?! Brilliant!

Have you ever read a celebrity tabloid and thought “Why in the world anyone ever name their kid that?”  I know I have.  For example, in an article by Australian KidSpot.com.au, they listed off “Celebrity baby names top 20 – the crazy list.”  The top name listed?  Pilot Inspektor.  Yes, you read that right and I didn’t goof on the spelling…Pilot Inspektor.  Now, traditionally I would chuckle and think such a name was just goofy…until today.  It dawned on me that in today’s internet world, arguably – and I know how silly it sounds – you are almost doing your child a favor by giving them a very unique name and/or unique spelling of their name. Let me explain more.

A while ago I blogged about the potential pitfalls to otherwise good business names. Indeed, so many new businesses fall victim to picking out an awesome name for their new business only to find out months later – post legal documents, marketing materials, etc., that another business, perhaps located elsewhere in the country – that the similarly named business has a bad rap online.  Unfortunately, the untrained consumer may think that the two businesses are one in the same and thus, you brand new business already has a “bad reputation” and that new business hasn’t even done anything wrong.  Heck, you might not have even officially launched!

Interestingly, the concept regarding business name and reputation ALSO applies to individuals too.  I once thought I had a unique name until I ran a search on Google and realized that there were a few people in the country with my exact same name, in some cases even the same spelling, and in one instance, the lady was also in the legal field!  Did I mention she also had long dark hair like me too?  Talk about a creepy coincidence.  But let’s say for example that one of these other Anette Beebes were out in the world doing bad things, or perceived bad things, that people were writing about on public forums?  I know people looking for ME would think, or at least question, whether or not those postings were about actually about me…when obviously it wasn’t.  Wow…yeah, let that sink in for a minute?

Of course, there isn’t much that I can do about it now unless I want to legally change my name to something different…like the story of that one British guy that allegedly changed his name to “Captain Fantastic Faster Than SuperMan SpiderMan Batman Wolverine The Hulk And The Flash Combined.”  The way the description reads he might as well just changed his name to Usain Bolt…but I guess that was already taken.  There is also always doing what most people do, explain it away if given the opportunity.  But what can the child having population do?  Name their kids like a celebrity!  Come up with something totally out there and wacky.

I know!  It’s sounds crazy writing it too…and part of this is kind of in jest (although there is always some shred of truth to jest) but think about it.  If you  named your kid something CRAZY and spelled a name with awkward phonetics, chances of that child being mistaken for someone else is probably going to be drastically reduced.  Celebrity parents who name their kids goofy names…way to be a head of the times – even if you don’t know it.  Maybe, for the sake of  their kid’s future reputations or purely out of having a sense of humor, other non-celebrity parents will consider following suit

Until next time friends…

P.S. – If you find this comical or have unique names that you have heard please share them in the comments.  We all can use a good giggle now and then.

Snapchat Story Hit Home With Students

If you read my last blog article discussing how Kids Get the Short End of the Lesson Learning Stick, you know that I think that the internet today has a way of prohibiting kids from learning lessons “the old fashioned way.”  As part of my mission to educate kids (and adults) on the very serious issues that I have seen evolve out of one’s use of the Internet I decided to start guest speaking and my very first stop was my personal home town.

Last Monday I spent my time up at Blue Ridge High School in Lakeside, Arizona giving a presentation to the students regarding Internet use and the repercussions of the same.  This wasn’t your traditional “bullying is bad” speech that most kids get.  This was a full blown actions and consequences from the same speech.  If you want kids to have a clue, you have to tell them why things are bad…not just “be nice because bullying is bad” and use current examples.  Remember, chances are these kids are far more tech savvy than we could even dream of being!

20160516 - BRHS - Junior-Senior - Q2 re Top 4 Social Media platforms

Part of my presentation involves students taking an online quiz.  Out of the 56 students that responded from Session 2 (Junior and Senior students only) I learned that Snapchat was the most popular medium of Social Media being used by the students, following closely by Instagram and Twitter.  Upon learning this I used a very timely article that I just read about involving Snapchat as a teaching opportunity.  I discussed the recent story that has been floating around in mainstream media (e.g. Washington Post, CNN Money, etc.) about the 18 year old girl who was trying to take a selfie, while driving her father’s Mercedes with passengers in the vehicle, at a speed of over 100 mph, just so that she could apply a Snapchat filter to her selfie showing how fast she was going.  According to the articles, the girl ran into another driver causing him permanent injuries and the victim is now suing Snapchat under a product liability theory.  You can read the entire article as published by the Washington Post HERE.  Be prepared to be a little upset over it.

I explained to the students that not only will this girl likely face criminal and civil problems (and fees for counsel relating to the same) but I also talked about how this has become national news; that since she is over the age of 18 her name is plastered all over the internet in connection to her mistake; and to consider the comments that the general public is posting in relation to the article.  I told the kids that people are crazy and if you read the comments, some wanted that girl dead!  Sure it is harsh, but it’s the truth and I told them that this girl is probably the recipient of some serious hate mail because, for whatever reason, that is what this world thinks is right to do.  Indeed, not only does this young girl have to deal with the fact that her actions hurt someone very bad for the rest of her life, and deal with potential civil and criminal claims, but also may have to deal with hate mail…and that her family may also be subject to the same kind of ridicule.  I drove those points home.

Just looking at their faces as I told the story; the number of side conversations that ensued; and the questions that I received from the audience told me they were listening!  They were really listening!

I have been saying for a long time that education needs to happen now and I am pleased to be apart of that process!  If you have or know of a school or youth group that you think need to hear more about this topic, from someone who really understands and can present the information in an informative and entertaining way, consider sending that person this blog article or contact me.  I am currently booking lectures for students (and adults) for 2016 through June 2017.

Until next time friends…

P.S. – If any of this resonates with you, or you agree with that I have said, please consider sharing this article and/or leave me a comment.  I’d love to hear your feedback and/or about your personal experiences.