San Fernando Valley Los Angeles Attorneys
Navigation Two
Phone Number

Entries in internet matters (3)

Monday
Jun222015

When Bad Things Happen to Good People...On the Internet

Business Litigation Attorney EncinoLitigation Attorney

 

by David Gurnick

818.907.3285

 

The internet has generated countless new ways to communicate and share thinking. Some posted information is negative, which can still be useful when messages are truthful, in good taste, and constructive. But some negative posts are false and abusive.

Some ways and places that negative comments get posted are: 

  • Legal Solutions Revenge ReviewsComments on social media like Facebook or Twitter.

  • Negative comments on review sites, like Yelp, ConsumerAffairs.com, TripAdvisor.com or RipoffReport.com.

  • Negative websites, like disney-sucks.com, paypalsucks.com, allstateinsurancesucks.com, verizonpathetic.com, or untied.com.

  • Negative posts will appear soon on new .sucks domains, which recently became available.

  • Revenge posts arising from personal and business relationships.

Avoid Knee-Jerk Reactions

There are numerous ways to react to negative comments on the internet. Sometimes it is better to ignore the comment. A tweet or Facebook post, for example, may come and go quickly, replaced by other comments and updates. In contrast, a response may generate more negative comments.

After Toys R Us sent a cease and desist letter to an individual who used Roadkills-R-Us on the internet, the recipient posted the chain of correspondence, and created a satirical website. These have stayed online for years. It might have been better for the company to not respond.

Another possible reaction is to encourage others who are satisfied or have good things to say, to leave positive feedback online. Those comments help move negative messages down in prominence.

When a post is too negative or problematic to ignore, some legal steps can be considered.

Anonymous comments on public forums or message boards present a particular challenge. This is because federal law protects their hosts. The Communications Decency Act ("CDA") makes a forum or message board operator immune from liability for content created by third parties.

Congress passed the CDA to promote unfettered, unregulated free speech on the Internet.  There is no need to protect speech everyone likes. CDA protection is for negative, hostile speech.

But CDA immunity does not prevent all relief for someone who is victimized by falsehoods, libel, slander, defamation or other Internet abuse. Some courses of action are available for victims.

When a false or harassing post appears, a wise step is to print it or make a screen shot, as a record of the content. This is important because the comments may be changed or deleted before relief can be obtained.

Consider the nature of the site where the improper statement appears, and whether the message may be supplanted or lowered in prominence by later posts, making it unnecessary to take action.

If necessary to respond, consider whether to do so publicly or privately or both. Sometimes a useful combination is a brief public reply, calmly refuting the false statement, and a thoughtful private response. Sometimes a grievance can be resolved by private communication. An unhappy customer may be willing to remove the prior comment, or post a further comment that the matter was resolved.

A cease and desist letter may be appropriate. Such letters may need to be stern and firm. But sometimes a lighter tone is useful. Jack Daniels, the famous whiskey distiller, sent one of the nicer cease and desist letters, an example worth following in some circumstances.

For remarks that exceed the bounds of propriety, it is sometimes possible to contact the website operator and ask that the comment be removed.

Some hosts will cooperate, whether as a matter of policy, or courtesy or goodwill. But many sites that host forums will not cooperate in removing content. For example, ripoffreport.com and consumeraffairs.com claim they will not remove any post whatsoever.

Internet Defamation & Libel

A web host’s immunity from liability does not protect people who post false and defamatory messages. They may be sued for defamation.

Charles Schwab, the well-known founder of Charles Schwab Corporation, brought a libel suit over statements in the website www.chuck-you.com. Currently (June 2015), the case is pending in a California Superior Court. In 2011 a medical school in Antigua, obtained an injunction in  a U.S. court against a former student who was defaming the school on the internet.

Bringing a claim is more challenging when speakers post anonymously. Courts have upheld a First Amendment right to speak anonymously. But the First Amendment does not protect defamatory speech. So trying to stay anonymous does not always work.

Internet connections are assigned a numeric Internet Protocol address. When posting online, the host server logs the originator's IP address. Sometimes, the numeric address can be obtained by subpoena to the host website and internet service provider. This process may expose the identity of whoever made an offending comment.

In one case a town official sought a subpoena to identify the anonymous poster of defamatory statements on a website. The Delaware Supreme Court ruled the plaintiff must try to notify and give the anonymous speaker a chance to oppose the subpoena request. The plaintiff was required to also show the court he could prove defamation. These are not easy procedures, but they provide a course of action that may expose anonymous speakers so they can be sued.

More recently, a New Jersey court agreed to issue subpoenas so a hospital could identify perpetrator(s) who hacked into its intranet and sent defamatory emails to employees. In 2012 a couple in Texas won a judgment of more than $13 million against (originally) anonymous posters who defamed them on an internet forum.

Other Remedies for Haters & Trolls

Some other courses of action include posting other content on the internet, using some of the same key words that are in the offending comment, so that search engine results will generate the later posted content; and asking Google to remove content pursuant to Google's removal policies

Similarly, some sites that post comments have policies or procedures addressing removal of inappropriate content. Ripoffreport.com, as an example, has an arbitration procedure. For a substantial fee, which obviously generates revenue, they will conduct an arbitration to determine if content should be removed. The ethics of this policy are questionable, but the cost is less than full blown litigation. A number of third party companies offer to assist in removing offending content, though at this time the effectiveness of these services is unclear.

For content that contains any threatening message, it may be appropriate to notify police authorities.

David Gurnick is a Litigation Attorney at our firm.  

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Apr112013

Why Register a Domain Name? Intellectual Property Protection to Start

Business LitigationSan Fernando Valley Business Litigation Lawyer

by Nicholas Kanter
818.907.3289

Business Litigation Google+ 

 

A political organization recently learned the hard way that possession, including possession of intellectual property, is nine-tenths of the law.

In January, after helping President Obama win reelection, Obama for America announced it was switching focus to a grass-roots organization and changing its name to Organizing for Action. The announcement was made before OFA registered the domain, www.organizingforaction.net.

On the day of the announcement, an individual named Derek Bovard registered www.organizingforaction.net.  Initially, Mr. Bovard reportedly set the domain to redirect to the National Rifle Association’s website. Currently, the OFA website redirects to Dr. Benjamin Carson’s speech at the National Prayer Breakfast.

OFA filed a complaint with the National Arbitration Forum [the complaint was filed in accordance with Internet Corporation for Assigned Names and Numbers’ (ICANN’s) Uniform Domain Name Dispute Resolution Policy] seeking an order transferring the domain name from Mr. Bovard to OFA.  In support of its complaint, OFA alleged:

  1. It owned trademark rights in the name Organizing for Action;

  2. Mr. Bovard’s www.organizingforaction.net is confusingly similar to OFA’s trademark;

  3. Mr. Bovard has no legitimate right or interest in the trademark; and

  4. Mr. Bovard registered the domain name in bad faith.

The arbitration panel found in favor of Mr. Bovard, concluding that OFA did not prove that it established trademark rights in its name prior to Mr. Bovard’s registration of the domain.

This makes sense as trademark rights are based on use, and OFA apparently did not use the Organizing for Action name before Mr. Bovard’s domain was registered. In fact, Mr. Bovard argued that he registered the domain at 5:46 a.m. on January 18, 2013, approximately nine hours before OFA legally become a group. Accordingly, the panel denied OFA’s request to transfer the domain name.

What should OFA have done differently? Clearly, before announcing the name change, OFA should have registered the domain. Unfortunately, OFA learned that conceptualizing a name is not the same as securing property rights in the name.

 

Nicholas Kanter is a Shareholder in our Business Litigation Practice Group. You may reach him via email: nkanter@lewitthackman.com. 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Thursday
Mar292012

Social Networking and Recruiting - Should Employers Ask for Facebook Passwords?

Lawyer for EmployerWage and Hour Defense

by Nicole Kamm

818.907.3235

 

Many employers these days are incorporating policies on social networking in their employee handbooks. Usually the policies address whether or not employees can use work computers and other devices to access personal accounts such as Facebook, Twitter, etc.

But according to a recent article from the Associated Press, there is a growing trend in which Human Resources professionals are screening applicants through their social media accounts by asking for passwords to Facebook and other personal pages, or requesting applicants log into their Facebook accounts on a company computer. Some recruiters are also asking applicants to add them as a friend on the social network.

This practice appears to be particularly common in the law enforcement, government or security sectors, though employers in other industries (such as retailer Sears) are now asking as well.

While the law does not currently address the direct implications of social media use in recruiting, there are a number of pending court cases involving social media and applicants/employees that should provide some guidance to employers. Some states, such as Illinois and Maryland, are also attempting to pass legislation that would prohibit employers from asking for an applicant's social media login and password.

There is the additional concern that requesting an applicant’s password violates Facebook’s Terms of Service, which states: “You will not share your password…let anyone else access your account, or do anything else that might jeopardize the security of your account.”  Further, while employers generally can’t ask applicants about certain protected categories, such as race, religion, age, sexual preference, marital status, or disability, gaining access to a social media site would likely reveal such information without employers having to directly ask for it.

While an applicant may lawfully refuse a password request, in today’s economy, many choose not to so as not to risk losing the job opportunity.

So what is an employer to do?

 

The DOs and DON'Ts of Social Networking and Recruiting

 

According to a study commissioned by Microsoft and conducted by market research company Cross-Tab, about 70 percent of HR representatives report rejecting an applicant because of information found online. Many of the companies the representatives recruit for actually mandate online screening of candidates as part of the hiring process.

Employers using social media to s­creen job-seekers are advised: 

  1. If you use social media in your recruiting, use it consistently (i.e., conduct the same searches at the same point in the process for every applicant). 
  2. Don't create an internet alias to gain access to a candidate's personal profile. In other words, don't set up a John or Jane Doe account to Facebook "friend" your applicants. 
  3. Keep a record of your search by printing the page or saving a screen shot, especially if the search reveals something which raises questions about the candidate.
  4. Notify applicants that you will be reviewing any and all public social media accounts. 
  5. If you perform a background check, make sure you comply with the Federal Fair Credit and Reporting Act, as well as state regulations. 

Use any information you obtain lawfully, and not to make any final employment decisions. 

Nicole Kamm is an Employment Defense Attorney in the San Fernando Valley. You may reach her by calling 818.990.2120, or via e:mail: nkamm@lewitthackman.com

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120