February 28, 2023 Anette B.

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

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

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

Plaintiff: James Boone

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

HIGH LEVEL OVERVIEW

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

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

A LITTLE INTO THE LEGAL WEEDS

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

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

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

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

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

FINAL THOUGHTS

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

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

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

February 18, 2023 Anette B.

NY District Court Swings a Bat at “The Hateful Conduct Law” – Volokh v. James

This February14th (2023), Valentine’s Day, the NY Federal District Court showed no love for New York’s Hateful Conduct Law when it granted a preliminary injunction to halt it. So this is, to me, an exceptionally fun case because it includes not only the First Amendment (to the United States Constitution) but also Section 230 of the Communications Decency Act, 47 U.S.C. § 230. I’m also intrigued because renowned Eugene Volokh, Locals Technology, Inc., and Rumble Canada, Inc. are the Plaintiffs. If Professor Volokh is involved, it’s likely to be an interesting argument. The information about the case below has been pulled from the Court Opinion and various linked websites.

Plaintiffs: Eugene Volokh, Locals Technology, Inc., and Rumble Canada, Inc.

Defendant: Letitia James, in her official capacity as New York Attorney General

Case No.: 22-cv-10195 (ALC)

The Honorable Andrew L. Carter, Jr. started the opinion with the following powerful quote:

“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
Matal v. Tam, 137 S.Ct. 1744, 1764 (2017)

Before we get into what happened, it’s worth taking a moment to explain who the Plaintiffs in the case are. Eugene Volokh (“Volokh”) is a renowned First Amendment law professor at UCLA. In addition, Volokh is the co-owner and operator of the popular legal blog known as the Volokh Conspiracy. Rumble, operates a website similar to YouTube which allows third-party independent creators to upload and share video content. Rumble sets itself apart from other similar platforms because it has a “free speech purpose” and it’s “mission [is] ‘to protect a free and open internet’ and to ‘create technologies that are immune to cancel culture.” Locals Technology, Inc. (“Locals”) is a subsidiary of Rumble and also operates a website that allows third party-content to be shared among paid, and unpaid, subscribers. Similar to Rumble, Locals also reports having a “pro-fee speech purpose” and a “mission of being ‘committed to fostering a community that is safe, respectful, and dedicated to the free exchange of ideas.” Suffice it to say, the Plaintiffs are no stranger to the First Amendment or Section 230. So how did these parties become Plaintiffs? New York tried to pass a well intentioned, but arguably unconstitutional, law that could very well negatively impact them.

On May 14th last year, 2022, some random racist nut job used Twitch (a social media site) to livestream himself carrying out a mass shooting on shoppers at a grocery store in Buffalo, New York. This disgusting act of violence left 10 people dead and three people wounded. As with most atrocities, and with what I call the “train wreck effect”, this video went viral on various other social media platforms. In response to the atrocity New York’s Governor Kathy Hochul kicked the matter over to the Attorney General’s Office for investigation with an apparent instruction to focus on “the specific online platforms that were used to broadcast and amplify the acts and intentions of the mass shooting” and directed the Attorney General’s Office to “investigate various online platforms for ‘civil or criminal liability for their role in promoting, facilitating, or providing a platform to plan or promote violence.” Apparently the Governor hasn’t heard about Section 230, but I’ll get to that in a minute. After investigation, the Attorney General’s Office released a report, and later a press release, that stated “[o]nline platforms should be held accountable for allowing hateful and dangerous content to spread on their platforms” because an alleged “lack of oversight, transparency, and accountability of these platforms allows hateful and extremist views to proliferate online.” This is where one, having any knowledge about this area of law, should insert the facepalm emoji. If you aren’t familiar with this area of law, this will help explain (a little – we’re trying to keep this from being a dissertation).

Now no reasonable person will disagree that this event was tragic and disgusting. Humans are weird beings and for whatever reason (though I suspect a deep dive into psychology would provide some insight), we cannot look away from a train wreck. We’re drawn to it like a moth to a flame. Just look at any news organization and what is shared. You can’t tell me that’s not filled with “train wreck” information. Don Henley said it best in his lyrics in the 1982 song Dirty Laundry, talking about the news: “she can tell you about the plane crash with a gleam in her eye” … “it’s interesting when people die, give us dirty laundry”. A Google search for the song lyrics will give you full context if you’re not a Don Henley fan … but even 40 plus years later, this is still a truth.

In effort to combat the perceived harms from the atrocity that went viral, New York, on December 3, 2022 enacted The Hateful Conduct Law, entitled “Social media networks; hateful conduct prohibited.” What in the world does that mean? Well, the law applies to “social medial networks” and defined “hateful conduct” as: “[T]he use of a social media network to vilify, humiliate, incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” N.Y. Gen. Bus. Law § 394-ccc(1)(a). Okay, but still ..

In explaining The Hateful Conduct Law, and as the Court’s opinion (with citations omitted) explains:

[T]he Hateful Conduct Law requires that social media networks create a complaint mechanism for three types of “conduct”: (1) conduct that vilifies; (2) conduct that humiliates; and (3) conduct that incites violence. This “conduct” falls within the law’s definition if it is aimed at an individual or group based on their “race”, “color”, “religion”, “ethnicity”, “national origin”, “disability”, “sex”, “sexual” orientation”, “gender identity” or “gender expression”.

The Hateful Conduct Law has two main requirements: (1) a mechanism for social media users to file complaints about instances of “hateful conduct” and (2) disclosure of the social media network’s policy for how it will respond to any such complaints. First, the law requires a social media network to “provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct.” This mechanism must “be clearly accessible to users of such network and easily accessed from both a social media networks’ application and website. . . .” and must “allow the social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled.” N.Y. Gen. Bus. Law § 394-ccc(2).

Second, a social media network must “have a clear and concise policy readily available and accessible on their website and application. . . ” N.Y. Gen. Bus. Law § 394-ccc(3). This policy must “include how such social media network will respond and address the reports of incidents of hateful conduct on their platform.” N.Y. Gen. Bus. Law § 394-ccc(3).

The law also empowers the Attorney General to investigate violations of the law and provides for civil penalties for social media networks which “knowingly fail to comply” with the requirements. N.Y. Gen. Bus. Law § 394-ccc(5).

Naturally this raised a lot of questions. How far reaching is this law? Who and what counts as a “social media network”? What persons or entities would be impacted? Who decides what is “hateful conduct”? Does the government have the authority to try and regulate speech in this way?

Two days before the law was to go into effect, on December 1, 2022, the instant action was commenced by the Plaintiffs alleging both facially, and as-applied, challenges to The Hateful Conduct Law. Plaintiffs argued that the law “violates the First Amendment because it: (1) is a content viewpoint-based regulation of speech; (2) is overbroad; and (3) is void for vagueness. Plaintiffs also alleged that the law is preempted by” Section 230 of the Communications Decency Act.

For the full discussion and analysis on the First Amendment arguments, it’s best to review the full opinion, however, the Court’s opinion opened with the following summary of its position (about the First Amendment as applied to the law):

“With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc (“the Hateful Conduct Law” or “the law”). Yet, the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest. The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal.”

With respect to the preemption argument made by Plaintiffs, that is that Section 230 of the Communications Decency Act preempts the law because it imposes liability on websites by treating them as publishers. As the Court outlines (some citations to cases omitted):

The Communications Decency Act provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The Act has an express preemption provision which states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3).

As compared to the section of the Opinion regarding the First Amendment, the Court gives very little analysis on the Section 230 preemption claim beyond making the following statements:

“A plain reading of the Hateful Conduct Law shows that Plaintiffs’ argument is without merit. The law imposes liability on social media networks for failing to provide a mechanism for users to complain of “hateful conduct” and for failure to disclose their policy on how they will respond to complaints. N.Y. Gen. Bus. Law § 394-ccc(5). The law does not impose liability on social media networks for failing to respond to an incident of “hateful conduct”, nor does it impose liability on the network for its users own “hateful conduct”. The law does not even require that social media networks remove instances of “hateful conduct” from their websites. Therefore, the Hateful Conduct Law does not impose liability on Plaintiffs as publishers in contravention of the Communications Decency Act.” (emphasis added)

Hold up sparkles. So the Court recognizes the fact that platforms cannot be held liable (in these instances anyway) for third-party content, no matter how ugly that content might be, but yet wants to force (punish in my opinion) a platform by forcing them to spend big money on development to create all these content reporting mechanisms, and set transparency policies, for content that they actually have no legal requirement to remove? How does this law make sense in the first place? What is the point (besides trying to trap them into having a policy that if they don’t follow could give rise to an action for unfair or deceptive advertising)? This doesn’t encourage moderation. In fact, I’d argue that it does the opposite and encourages a website to say “we don’t do anything about speech that someone claims to be harmful because we don’t want liability for failing to do so if we miss something.” In my mind, this is a punishment, based upon third-party content. You don’t need a “reporting mechanism” for content that people aren’t likely to find offensive (like cute cat videos). To this end, I can see why Plaintiffs raised a Section 230 preemption argument … because if you drill it down, the law is still trying to force websites to take an action to deal with undesirable third-party content (and then punish them if they don’t follow whatever their policy is). In my view, it’s an attempt to do an end run around Section 230. The root issue is still undesirable third-party content. Consequently, I’m not sure I agree with the Court’s position here. I don’t think the court drilled down enough to the root of the issue.

Either way, the Court did, as explained in the beginning, grant Plaintiff’s Motion for Preliminary Injunction (based upon the First Amendment arguments) which, at current, prohibits New York from trying to enforce the law.

Citation: Volokh v. James, Case No. 22-cv-10195 (ALC) (S.D.N.Y., Feb. 14, 2023)

DISCLOSURE: This is not mean to be legal advice nor should it be relied upon as such.

June 4, 2022June 4, 2022 Anette B.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

#firstamendment #defamation #antiSLAPP #legislation #accesstojustice

July 19, 2020July 19, 2020 Anette B.

California Assembly Bill 1678 designed to protect against age discrimination gets tagged by Ninth Circuit on First Amendment grounds: IMDb.com, Inc. v. Becerra

On June 19, 2020 the Ninth Circuit Court of Appeals ruled that the content-based restrictions on speech contained within California’s Assembly Bill 1678 was facially unconstitutional because it “does not survive First Amendment scrutiny.”

I feel like if you live outside of glamorous places like California, New York and Florida, you may not be paying attention to laws being pushed by organizations like the Screen Actors Guild aka “SAG,” nevertheless … I try to keep my ear to the ground for cases that involve the First Amendment and Section 230 of the Communications Decency Act. This case happens to raise both issues, although only the First Amendment matter is addressed here.

For those that may be unfamiliar, IBDb.com is an Internet Movie Database which provides a free public website that includes information about movies, television shows, and video games. It also contains information information on actors and crew members in the industry which may contain the subject’s age or date of birth. This is an incredibly popular site, the court opinion noting that as of January of 2017 “it ranked 54th most visited website in the world.” The information on the site is generated by users (just like you and I) but IMDb does employ a “Database Content Team tasked with reviewing the community’s additions and revisions for accuracy.”

Outside of the “free” user generated section, IMDb also introduced, back in 2002, a subscription-based service called “IMDbPro” for the industry professionals (actors/crew and recruiters) to essentially act as a LinkedIn but for Hollywood – providing space for professionals to upload resume type information, headshots, etc. and casting agents could search the database for talent.

Back in 2016 apparently SAG pushed for regulation in California (which was enacted as Assembly Bill 1687) that arguably targeted IMDb, in effort to curtail alleged age discrimination in the entertainment industry. No doubt a legitimate concern (as it is in many industries) however, often good intentions result in bad law.

AB 1687 was signed into law, codified at Cal. Civ. Code § 1798.83.5 and included the following provision:

A commercial online entertainment employment service provider that enters into a contractual agreement to provide employment services to an individual for a subscription payment shall not, upon request by the subscriber, do either of the following: (1) [p]ublish or make public the subscriber’s date of birth or age information in an online profile of the subscriber [or] (2) [s]hare the subscriber’s date of birth or age information with any Internet Web sites for the purpose of publication.
Cal. Civ. Code § 1798.83.5(b)(1)-(2)

The statute also provides, in pertinent part:

A commercial online entertainment employment service provider subject to subdivision (b) shall, within five days, remove from public view in an online profile of the subscriber the subscriber’s date of birth and age information on any companion Internet Web sites under its control upon specific request by the subscriber naming the Internet Web sites.
Cal. Civ. Code § 1798.83.5(c)

The practical affect of these provisions is that it requires that subscribers of IMDbPro, be able to request that IMDb, and that IMDb, upon such request, remove the subscriber’s age or date of birth from the subscriber’s profile (which I would think they could do on their own to the extent they have control over such profile data) AND, more problematically, anywhere else on their website where such information exists regardless of who created that content. This is now extending to content the IMDbPro subscribers may not have control over as it may have been generated by third-party users of the site.

The Court opinion explained that “[b]efore AB 1687 took effect, IMDb filed a complaint under 42 U.S.C § 1983 in the Northern District of California to prevent its enforcement. IMDb alleged that AB 1687 violated both the First Amendment and Commerce Clause of the Constitution, as well as the Communications Decency Act, 47 U.S.C. § 230(f)(2).” While there was much back and forth between the parties, the crux of the debate, and crucial for the appeal was the debate over the language prohibiting IMDb’s ability to publish the age of information without regard to the source of the information.

When considering the statutory language restricting what could be posted the Court of Appeals concluded:

AB 1687 implemented content-based restriction on speech (i.e., dissemination of date of birth or age) that is subject to First Amendment scrutiny.
AB 1687 did not present a situation where reduced protection would apply (e.g., where the speech at issue is balanced against a social interest in order and morality).
- IMDb’s content did not constitute Commercial Speech.
- IMDb’s content did not facilitate illegal conduct.
- IMDb’s content did not implicate privacy concerns.
AB 1687 does not survive strict scrutiny because it was not the least restrictive means to accomplish the goal and it wasn’t narrowly tailored.

In conclusion the Court articulated a position that I wholly agree with: “Unlawful age discrimination has no place in the entertainment industry, or any other industry. But not all statutory means of ending such discrimination are constitutional.”

Citation: IMDb.com, Inc. v. Becerra, Case Nos. 18-15463, 18-15469 (9th Cir. 2020)

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

June 17, 2020June 17, 2020 Anette B.

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

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

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

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

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

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

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

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

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

June 8, 2020June 8, 2022 Anette B.

Section 230, the First Amendment, and You.

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

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

WHY LAY PEOPLE SHOULD CARE ABOUT SECTION 230

Not everyone who reads this will remember what it was like before the Internet. If you’re not, ask your elders what it was like to be “talked at” by your local television news station or news paper. There was no real open dialog absent face to face or over the telephone communications. Your audience was limited in who you would get to share information with. Even if you wrote a “letter to the Editor” at a local newspaper it didn’t mean that your “opinion” was necessarily going to be posted. If you wanted to share a picture, you had to actually use a camera and film, take it to a developer, wait two weeks, pay for the developing and pray that your pictures didn’t suck. Can’t tell you how many blurry photographs I have in a shoe box somewhere. Then you had to mail, hand out, or show your friends in person. And don’t even get me started about a phone that was stuck to the wall and your “privacy” was limited to having a long phone chord that might stretch into the bathroom so you could shut the door. If you’re old end enough to remember that, and are nodding your head in agreement … I encourage you to spend some time remembering what that was like. It seems that us non-digital natives are at a point in life that we take the technology we have for granted; and the digital natives (meaning they were born with all of this technology) don’t really know the struggles of life without it.

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

IN GENERAL: SECTION 230 EXPLAINED

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

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

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

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

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

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

Then, in February of 2020, the DOJ had a “workshop” on Section 230. I was fortunate enough to be in the audience in Washington, D.C. where it was held and recently wrote an article breaking down that “workshop.” If you’re interested in all the juicy details, feel free to read that article but in summary it basically was four hours’ worth of : humans are bad and do bad things; technology is a tool in which bad humans do bad things; technology/platforms need to find a way to solve the bad human problem or face liability for what bad humans occasionally do with the tools they create; we want to make changes to the law even though we have no empirical evidence to support the position that this is an epidemic rather than a minority…because bad people.

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

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

Let me first start off by saying that there is a ton of misinformation that is shared online. It doesn’t help that many people in society will quickly share things without actually reading it or conducting research to see if the content they are sharing has any validity to it but will spend 15 minutes taking a data mining quiz only to find out what kind of a potato they are. As a side note, I made that up in jest and then later found out that there is a quiz to find out what kind of potato you are. Who knew the 2006 movie Idiocracy was going to be so prophetic? Although, I can’t really say this is somehow just something that happens online? Anyone that ever survived junior high and high school knows that gossip is often riddled with misinformation and somehow we seem to forget about the silliness that happens offline too. The Internet, however, has just given the gossipers a megaphone … to the world.

Along with other perceived harmful content, platforms have been struggling with how to handle such misinformation. Some have considered adding more speech by way of notifications or “labels” as Twitter calls them, to advise their users that the information may be wholly made up or modified, shared in a deceptive manner, likely to impact public safety or otherwise cause serious harm. Best I could tell, at least as far as Twitter goes, this seems to be a relatively new effort. Other platforms like Facebook have apparently resorted to taking people’s accounts down, putting odd cover ups over photos, etc. on content they deem “unworthy” for their users. Side note: While ideal in a perfect world, I’m not personally a fan of social media platforms fact checking because: 1) it’s very hard to be an arbiter of truth; 2) it’s incredibly hard to do it at scale; 3) once you start, people will expect you to do it on every bit of content that goes out – and that’s virtually impossible; and 4) if you fail to fact check something that turns out to be false or otherwise misleading, one might assume that such content is accurate because they come to rely on the fact checking. And who checks the fact checkers? Not that my personal opinion matters, but I think this is where this bigger tech companies have created more problems for themselves (and arguably all the little sites that rely on Section 230 to operate without fear of liability).

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

https://twitter.com/realDonaldTrump/status/1265255845358645254?s=20

To me, that doesn’t seem that bad. I can absolutely see some validity to President Trump’s concern. I can also see an alternative argument, especially since I typically mail in my voting ballot. Either way, adding content in this way, versus taking it down altogether, seems like the route that provides people more information to consider for themselves, not less. In any event, if you think about it, pretty much everything that comes out of a politician’s mouth is subjective. Nevertheless, President Trump got upset over the situation and then suggested that Twitter was “completely stifling FREE SPEECH” and then made veiled threats about not allowing that to happen.

https://twitter.com/realDonaldTrump/status/1265427539008380928?s=20

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

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

https://twitter.com/realDonaldTrump/status/1266387743996870656?s=20

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

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

HOW VERY AMERICAN OF US …

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

As stated, Americans are very proud of the rights granted to them, including the First Amendment right to free speech (although after reading some opinions lately I’m beginning to wonder if half the population slept through or otherwise skipped high school civics class … or worse, slept through Constitutional Law while in law school). However, not all societies have this speech right. In fact, Europe’s laws value the privacy as a right, over the freedom of expression. A prime example of this playing out is Europe’s Right to Be Forgotten law. If you aren’t familiar, under this EU law, citizens can ask that even truthful information, but perhaps older, be taken down from the Internet (or in some cases not be indexed on EU search engines) or else the company hosting that information can face penalty.

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

SECTION 230 AND FIRST AMENDMENT MYTHS SPREAD LIKE WILDFIRE

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

For example, just today (June 8, 2020) Jeff Kosseff Tweeted out a thread that describes a history of the New York Times failing to accurately explain Section 230 in various articles and how one of these articles ended up being quoted by a NJ federal judge. It’s a good thread. You should read it.

Today's Section 230 thread is a personal one because it involves the New York Times. You see, ever since I was a kid, I admired the Times. I read the NYT every day. I went into journalism because I was awestruck that a group of people could produce such a product daily.
— Jeff Kosseff (@jkosseff) June 8, 2020

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

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

UGC platforms are not in the business of creating content themselves but rather in the business of setting their own rules and allowing third-parties (i.e., you and I here on this platform) to post content in accordance with those rules. Even for those who point to some publications erring on the side of caution on 2006-2008 re editing UGC comments doesn’t mean that’s how the law actually was interpreted. We have decades worth of jurisprudence interpreting Section 230 (which is what the judicial branch does – interprets the law, not the FCC which is an independent organization overseen by Congress). UPDATE 1/5/2021 – although now there is debate on whether or not they can and as of October 21, 2020 the FCC seems to think they do have such right to interpret it. Platforms absolutely have the right to moderate the content which they did not create and kick people off of their platform for violation of their rules.

Think if it this way – have you ever heard your parents say (or maybe you’ve said this to your own kids) “My house, my rules. If you don’t like the rules, get your own house.” If anyone actually researches the history, that’s why Section 230 was created … to remove the moderator’s dilemma. A platform’s choice of what to allow, or disallow, has no bearing (for the sake of this argument here) on the applicability of Section 230. Arguably, UGC platforms also have a First Amendment right to choose what they want to publish, or not publish. So even without Section 230, they could still get rid of content they didn’t deem appropriate for their users/mission/business model.

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

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

As the co-author of Section 230, let me make this clear: there is nothing in the law about political neutrality. It does not say companies like Twitter are forced to carry misinformation about voting, especially from the president.
— Ron Wyden (@RonWyden) May 28, 2020

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

Quite frankly, there is no such thing as a “neutral platform.” That’s like saying a cheeseburger is a cheeseburger is a cheeseburger. Respectfully, some cheeseburgers from certain restaurants are just way better than others. Moreover, if we limited content on platforms to only what is lawful, i.e., a common carrier approach where the platforms would be forced to treat all legal content equally and refrain from discrimination, as someone that deals with content escalations for platforms, I can tell you that we would have a very UGLY Internet because sometimes people just suck or their idea of a good time and funny isn’t exactly age appropriate for all views/users.

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

The First Amendment absolutely protects the freedom of speech. In theory, you are free to put on a sandwich board that says (insert whatever you take issue with) and walk up and down the street if you want. In fact, we’re seeing such constitutionally protected demonstrations currently with the protesters all over the country in connection to the death of George Floyd. Peaceful demonstration (and yes, I agree, not all of that was “peaceful”) is absolutely protected under the First Amendment.

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

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

Protecting expression that resists the tyranny of those in power is the very foundation of the First Amendment. Section 230 does not prevent Internet companies from moderating offensive or false content. And it does not change the First Amendment of the Constitution.
— Ron Wyden (@RonWyden) May 28, 2020

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

So for all of you chanting about how a platforms censorship of your speech on their platform is impacting your freedom of speech – you don’t understand the plain language of the First Amendment. The law is “Congress shall make no law … abridging the freedom of speech…” not “any person or entity shall make no rule abridging the freedom of speech…”, which is what people seem to think the First Amendment says or otherwise wants the law to say.

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

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

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

As I mentioned to begin with, I don’t think that the Internet is perfect, but neither are humans and neither is life. While I believe there may be some concessions to be had, after in-depth studies and research (after all, we’ve only got some 24 years of data to work with and those first years really don’t count in my book) I think it foolish to be making rash decisions based upon political agendas. If the politicians want their own platform where they aren’t going to be “censored” and the people have ease of access to such information … create one! If people don’t like that platforms like Twitter, Facebook, or Google are censoring content … don’t use them or use them less. Spend your time and money with a platform that more aligns with your desires and beliefs. There isn’t one out there? Well, nothing is stopping you from creating your own version (albeit, I understand that it’s easier said than done … but there are platforms out there trying to make that move). That’s what is great about this country … we have the ability to innovate … we have options … well, at least for now.

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

January 22, 2019January 22, 2019 Anette B.

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

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

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

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

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

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

January 20, 2019January 20, 2019 Anette B.

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

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

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

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

BACKGROUND: QUESTIONABLE DEFAMATION CASES AND COURT ORDERS

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

As the brief says:

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

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

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

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

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

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

RED FLAGS THAT SHOULD CAUSE YOU PAUSE

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

RED FLAGS FOR ATTORNEYS

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

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

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

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

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

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

December 21, 2018December 21, 2018 Anette B.

“Internet Law” explained

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

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

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

Internet Law can include the following:

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

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

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

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

July 10, 2018July 11, 2018 Anette B.

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

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

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

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

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

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

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

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

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

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

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

April 4, 2017 Anette B.

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

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

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

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

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

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

You can review the entire Memorandum Opinion here:

View this document on Scribd

Until next time friends…

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

March 16, 2017March 16, 2017 Anette B.

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.

View this document on Scribd

Until next time friends…

January 13, 2017 Anette B.

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 manners; opinions are like poop (we need more courtesy flushes); no one really likes the person who crosses the line online; words 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.

May 21, 2016August 29, 2018 Anette B.

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!

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.

February 12, 2016 Anette B.

Fighting Fair on the Internet: Part 1 | The Internet Sucks!

Okay, so I know that the title “The Internet Sucks!” is rather harsh, but lately that is how I feel. There was once a time where the internet was used as an actual tool and not a weapon. I recognize that to a great degree it still a tool because we can share thoughts, ideas, and solid information and we are all the wiser for it. No longer do we have to go to the library to look things up or wait a year for something to be published. Now, everything is at our fingertips within seconds and from an educational perspective, this is an awesome thing! Even from the perspective of being able to share meaningful thoughts and ideas in a collaborative environment makes the internet awesome, especially when it is used for good and positive. Of course it has also helped us reconnect and stay connected with friends and family who live across the globe…and for me I am thankful to have such opportunity. Yes, there are countless reasons why the internet is still good – but that’s not what I am talking about – otherwise this would be a short posting about puppies, baby goats, and kittens. What I am referring to is the other side of that coin…

As I scroll through all of the social media pages that are out there, reading the different postings regarding…well, just about anything someone happens to write about, I find myself being ever thankful that I grew up in a time when the internet wasn’t so poplar. It seems that the information highways has become the “misinformation highway” and so many have become quick to believe and consequently “like” and “share” just about anything that is posted…no matter how ridiculous it would seem to anyone who actually stopped and thought about what they were reading for a minute. Mainstream media wants so badly to draw attention that they will highlight situations that really shouldn’t be highlighted, and then often skew them, because it does nothing more than “stir the pot” and generate ratings. I have often said those that “stir the post” should have to lick the spoon. Top that off with the keyboard warriors of today who seem to thrive on being malicious turds and you come to realize that the internet has really become a hostile environment and people are legitimately suffering from it in many different forms. Someone can’t even post a picture of a puppy without someone saying “that is the ugliest puppy I have ever seen” and go on to get into it with someone else over that comment. who gives a crap if you think the puppy is ugly? Why does your opinion on that matter? Don’t get me wrong, I am all for the freedom of speech (and as a lawyer in my line of work I help advocate for it), however, just because something is legal doesn’t mean that you should push the boundaries just to say you could do it! Freedom of speech shouldn’t be used as a license to be a dick! At what point did people bypass the Golden Rule? Further, and on point, not everything that you say (or write) is protected speech…but so many people forget that or have apparently never been taught that lesson in school. In my best Mr. Mackey voice from South Park “Bullying is bad…mmmmkay. Harassing someone is bad…mmmmkay. Lying and making up stories is bad…mmmmkay.“ Sure there are exceptions – satire and the like…and that seems all pretty self explanatory to me…but perhaps what I consider common sense isn’t so common?

While the shift has been going on for some time it has only been in the last five years that I have really noticed the change. Perhaps because I now deal with on a daily basis whether it be for work or I have it thrown in my face every time I read any thread, on any post, on pretty much any topic. True, I could not read…but the inquisitive social scientist mind I have won’t allow me to simply just dismiss it. As I see it, there seems to be a drastic increase of people who literally take offense to everything. At the same time there is an equally drastic increase of people who think being a keyboard warrior troll is somehow productive and funny; and somewhere in the gap between the two extremes are those who can find a bit of humor in some good old fashioned ribbing but know when things have gone too far and won’t engage in those activities. You know they types that I am I am talking about. They are the ones who literally post the “I’m just here for the comments” meme to a thread to show some level of participation without taking a side… Why is that? How has all of this come to be? Why does everyone want websites that allow third-party content to be the “moral police”? Even if sites were to start being the “moral police” where does one draw the line in the sand? Shouldn’t society, as a whole, have a duty to raise awareness and police their own conduct? Is it a fruitless endeavor to try and get people to police their own conduct or do people generally desire to behave in a positive manner but are just lacking in some basic knowledge and tools for real dispute resolution in today’s technological world? I mean, let’s face it…it’s not like many of us growing up had parents in this particular environment to draw upon for examples of how to handle these kinds of situations; heck, the game Oregon Trail was considered cool technology I was young let alone the internet.

Through this series of blogs under my self titled topic “Fighting Fair on the Internet” I will discuss my personal viewpoints on these questions in a balanced approach in hopes to help raise awareness on these issues; offer discussion points and/or, at least, some food for thought on the related issues; and provide some general legal commentary and tips for what I call “fighting fair on the internet” along the way. Of course, while I have some level of education in the social sciences, I certainly do not claim to be an expert…but I am fascinated by human nature and it seems to be such a very relevant and current issue in which I have had some level of experience with. Stick around friends…I anticipate this is going to be an interesting ride!

Cheers!

Anette

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Chronicles of the Yoga Pants Lawyer

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

First Amendment

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

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

California Assembly Bill 1678 designed to protect against age discrimination gets tagged by Ninth Circuit on First Amendment grounds: IMDb.com, Inc. v. Becerra

Section 230, the First Amendment, and You.

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

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

BACKGROUND: QUESTIONABLE DEFAMATION CASES AND COURT ORDERS

RED FLAGS THAT SHOULD CAUSE YOU PAUSE

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

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

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

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

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.)