Tag: online

Domestic Violence: What is a Dating Relationship?

Several months into the COVID-19 pandemic, the daily lives of most people have changed in many ways. With many people still desiring to find companionship, dating websites and mobile applications have provided somewhat of a substitute for traditional in-person dates, which are no longer feasible during the pandemic.

What happens if the relationship you’ve developed in these virtual settings goes awry, and the continued virtual contact becomes unwanted, threatening, malicious, and/or harassing? Can you obtain a restraining order to prevent further contact?

The answer largely depends on whether your online relationship with this person is considered to be within the definition of a “dating relationship” under the New Jersey Prevention of Domestic Violence Act.

The New Jersey Prevention of Domestic Violence only provides protection for certain classes of relationships, defined as a spouse, former spouse, household member (whether presently or at any prior time), parties with a child in common, or parties with whom the victim has had a dating relationship.

Fortunately, recent case law has shown an evolution of the term “dating relationship” under the statute to account for the evolution of dating itself.

The case of C.C. v. J.A.H., decided by the New Jersey Appellate Division on June 11, 2020, took into consideration two individuals who had never experienced a traditional, in-person “date.” They never visited each other’s homes, or met each other’s friends or family members. They never engaged in sexual relations, kissed, or even held hands. What they did do, however, was exchange nearly 1,300 highly personal and intimate text messages over the course of several months. Eventually, when one of the parties tried to cease the contact and spurn any further relationship, the other party’s communications became threatening and malicious.

In this first case of its kind, the court held that these two individuals, who shared no other meaningful contact aside from these text messages, were in enough of a “dating relationship” to provide protection to the victim.

This case may have broadened the protections available to victims of domestic violence tremendously. If you are being threatened, harassed or otherwise are subjected to domestic violence, you may be able to obtain a Final Restraining Order to protect yourself.

COPYRIGHT © 2020, STARK & STARK

Troll Hunting: Practical Strategies for Businesses to Combat Anonymous Online Trolls

No matter the business you operate, modern commerce increasingly takes place online, rarely putting the consumer and your business face-to-face. A recent study revealed that approximately 80% of American consumers buy products online, and 74% of consumers think it is extremely or somewhat important to read online reviews before making a purchasing decision.[1]  The average consumer reviews three online sources for information before soliciting a local business, typically: a search engine, the business’s website, and a website containing reviews or testimonials.[2]  Small and local businesses are not immune to the internet’s influence, as nearly 40% of consumers seek out online testimonials, ratings, or reviews to evaluate when considering whether to engage a local business for products or services.[3]  In fact, consumers cite negative online ratings and reviews as the second greatest reason not to consider a local business for products or services, behind only high prices.[4]  

Because consumers consistently turn to online resources to determine whether to do business with you, managing your online reputation is an essential task. You must actively control information about your products, address negative reviews, optimize search engines, and improve your customers’ online experience. In fact, many companies employ full time personnel solely to manage their social media presence.

But monitoring your online reputation becomes even more critical when an anonymous user (aka a “troll”) begins posting harmful or false information. The danger lies in the very nature of the internet, as “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.”[5]  When that voice spreads false information, interferes with your business, or divulges your trade secrets, what can you do to identify the anonymous user and hold them liable for the harm caused?

Understanding The First Amendment and Anonymous Online Speech

To pursue a claim against an anonymous online user, you must first understand the First Amendment protection afforded online speech. Internet speech is generally granted the same protection as traditional offline speech; that is, most types of speech on the internet are protected to some degree.[6]

The right to free speech online also includes a right to remain anonymous.[7]  Far from being hostile to such online secrecy, the courts have held that careful safeguards to protect anonymous online speech are important to preserve “the robust exchange of ideas and allows individuals to express themselves freely without fear of economic or official retaliation [or] concern about social ostracism.”[8] 

As in the traditional offline arena, some categories of speech, such as fighting words, obscenities, and false statements, are not protected by the First Amendment.[9]  Thus, when trolls exploit the anonymous nature of the internet to post false or damaging information about you, they often exceed the First Amendment’s protections for anonymous online speech. For example, anonymous online users may step beyond the boundaries of protected speech by:

• Creating an email account to distribute your CEO’s sensitive personal emails to senior management.[10]

• Creating online accounts to conduct a smear campaign against you with the objective of inducing employees to quit.[11]

• Posting reviews about working for you that disclose confidential or trade secret information.[12]

• Creating a website using your name to complain about your business practices and post negative reviews.[13]

• Posting false reviews of you online by posing as a former customer.[14]

If not for the use of an anonymous online persona, each of these actions could be addressed by filing a lawsuit against the troll. However, anonymity adds a layer of complication as you must either first find a way to unmask the troll’s identity or stop the harmful conduct by some other means.

Strategies to Address Harmful Online Comments Short of Litigation

Before filing a lawsuit to unmask your troll, first consider whether less costly means might stop the conduct or remove the harmful comments. This approach typically depends on the voluntary compliance of companies hosting the content, and thus is not guaranteed to succeed. However, the low cost of this initial step makes it worth considering. Further, pursuing these strategies, whether successful or not, may cause the troll to stop harming you, or to remove the content voluntarily, thereby accomplishing the end goal.

One alternative to litigation is to determine whether the online statements violate the online service provider’s “Terms of Service.” For example, Facebook’s® Terms of Service prohibit users from posting content that “infringes or violates someone else’s rights or otherwise violates the law” and authorizes Facebook to “remove any content or information” posted on Facebook that “violates this Statement or our policies.”[15]  Twitter® also requires users to ensure that posts comply “with applicable laws, rules, and regulations” and permits Twitter to remove “any Content.”[16]  Large online service providers typically offer reporting platforms where you can report a violation of the terms of service and ask to have the false or harmful content removed.[17] Thus, where a post or comment violates the terms of service, a letter to the internet service provider bringing the issue to its attention may be all that’s needed to get the offending content removed.

Another option is to request that search engines, such as Google® or Bing®, “de-index” the page on which the comments appear. “De-indexing” is a request that the search engine voluntarily remove a website from its index, thereby ensuring it will not appear in response to a search about you. Most search engines retain the right to remove offensive content. For example Google’s ® Terms of Service state that Google “may review content to determine whether it is illegal or violates our policies, and . . . may remove or refuse to display content that we reasonably believe violates our policies or the law.”[18]  The result is that, while the website containing the false statement still exists, it can’t be accessed in response to a search. The effectiveness of this step depends on whether the content clearly violates the applicable terms of service or is blatantly unlawful, and a search engine may require a court order finding the content to be unlawful before it will agree to de-index the website.

A final alternative is to address the comments from a public relations perspective. You can choose to simply engage the troll in the online forum itself, to address the falsity of the comments or steer the

discussion in a more beneficial direction. However, this approach carries significant risk that your comments may be used against you, or may even incite a more passionate, negative response. Thus, this approach should be reserved for unique factual situations that justify a public relations response instead of a legal one.

Identifying the Anonymous Online User

If you cannot stop the harmful online comments through one of the strategies above, you should consider filing a lawsuit to identify the troll and assert the appropriate claims against them. First, however, you need to analyze the conduct and determine whether you have a legal claim against the anonymous user. If so, you can file a lawsuit against the troll and attempt to uncover his or her identity.

Step One: Determine Whether the Conduct is Actionable

The types of claims available to combat online misconduct are generally the same as those available in traditional offline situations.

The most common claim pursued against trolls is a claim for defamation. When a person publishes false, harmful statements of fact about your business ethics or financial integrity, they are likely liable for defamation.[19]  Libel—defamation in writing—consists of publishing a false written statement, either deliberately or with at least a negligent disregard for the truth.[20] 

In evaluating whether you have a claim for defamation, you must candidly consider whether there is any truth to the comments, as truth is an absolute defense.[21]  Likewise, opinions are not actionable. So, if the statements are arguably just opinion, as opposed to a statement of fact (or an opinion that could reasonably be interpreted as stating facts), the anonymous speaker will not be liable.[22]  Finally, you must evaluate whether you will be deemed a “public figure,” in full or in a limited capacity.[23]  If you are a public figure, whether limited or not, you will be required to prove that the speaker acted with “reckless disregard of the truth.” Because this is a higher standard than negligence, there is a greater likelihood that the troll will not ultimately be held liable for defamation.

In addition to defamation, there are a number of other claims that you may be able to pursue against your troll:

• If the user is directing its harmful comments at a vendor, business partner, or potential customer, the user may be liable to you for tortious interference with a contract or a business expectancy. To succeed, you must have a valid contract or business expectancy; the anonymous user must both know about it and interfere with it, so as to cause its breach or termination; and have no legal justification for doing so.[24]

• If the user publishes false information about your products or services, the user may be liable for trade libel or business/product disparagement. Each of these claims has similar elements, requiring proof that the anonymous user posted a false statement concerning your products or services to dissuade a potential customer from doing business with you.[25] 

• If the user is a competitor, and the comments contain false or misleading advertisements about your products or services, the user may also be liable for unfair competition under the Lanham Act.[26]  

• If the user posts information containing your trade secrets, the user may be liable under state or federal trade secret laws.[27]

• If the user is a former employee, or had a contractual relationship with you, then the online conduct may violate provisions of that contract, such as nondisclosure or non-compete provisions.

This list is not exhaustive and there may be other potential claims to assert against an anonymous online user.

Step Two: File An Anonymous Lawsuit to Unmask the Troll

Once you identify a viable claim or claims against the anonymous online user, the next step is to file a lawsuit to discover the troll’s identity.

Such a lawsuit is typically filed against an anonymous defendant—John Doe for example—and a subpoena is then issued to the service provider or to the website hosting the content requiring it to identify the user. The service provider or website will likely object, and you will need to ask the Court for an order compelling disclosure of the user’s identity.

There is no universal standard governing when a court will order the disclosure of an anonymous user’s identity. However, most courts apply one of two generally-accepted tests, both of which require a significant showing early in the case that you are likely to succeed on your claims.

The less stringent test requires that you allege facts that—assumed to be true—demonstrate that the anonymous user committed an act giving rise to civil liability.[28]   Because the Court is looking only at whether you have sufficiently alleged a valid claim, your initial complaint is the operative document that the court will consider. You must also demonstrate to the Court’s satisfaction that (1) you have identified the anonymous user and the user is subject to personal jurisdiction; (2) you have made a good faith effort to locate and identify the anonymous user; and (3) the discovery sought is sufficiently limited to identify the appropriate user or users.[29]  This test, or some variation of the test, is used in some Federal Courts—typically in cases involving less protected forms of speech, like commercial speech—and state courts in Wisconsin, and Illinois.[30]

Most jurisdictions apply the second, more stringent test, which requires you to present facts, in the form of admissible evidence or sworn testimony, establishing that you can prove each element of your claim.[31]  This test requires you to provide more than just the pleadings, typically in the form of a statement of facts with supporting documents and testimony. Most states employing this test also require some further steps as well, such as proof that you attempted to notify the anonymous user of the pending proceeding[32]  or satisfaction of an additional balancing test to justify unmasking the troll.[33]  Federal Courts, and many state courts—including Arizona, Kentucky, Michigan, New York, Pennsylvania, Texas, California, Maryland, New Hampshire, and the District of Columbia—have adopted some version of this more stringent test.[34]

If it is not obvious from the nature of the statements that they are actionable, some courts may also require an evidentiary showing that you can prove a valid claim before they will order the troll’s identity disclosed.[35] 

Thus, if you file a lawsuit to identify the anonymous user, you must be prepared to present the facts that support your claim much earlier than in traditional litigation. Since most states apply the more stringent “evidentiary” test, the best practice is to prepare to satisfy that test, even if the less stringent test might be applied.

The factual evidence necessary to compel disclosure of an anonymous user’s identity will likely include, at a minimum: (1) copies of the offending posts; (2) sufficient evidence to demonstrate the posts are false, unlawful, or violate the terms of an agreement; (3) sufficient evidence to show that the comments are directed at you, if necessary; and (4) evidence demonstrating that you have suffered damage as a result of the comments. You should be careful to save copies of the offending posts before alerting the anonymous user that action is being taken, in order to guard against any attempt to edit, delete, or restrict access to the comments.

Step Three: Sue The Troll!

Once you have an order compelling disclosure of the anonymous user’s identity, you can serve that order on the service provider or website and expect a response. However, the response may not always identify the user, but may only give you the user’s IP address or other electronic information. You may need to issue additional subpoenas to service providers in order to identify the user of the IP address and ultimately discover the anonymous user’s identity.

Despite having an order in hand compelling disclosure of the anonymous user’s identity, you may still face obstacles from the service provider or website. Typically, large companies that host comments online resist disclosure of their users’ personal information for as long as possible. Thus, they may raise objections to disclosure, justified or not, ranging from invocation of the Stored Communications Act to the Video Privacy Protection Act. But, with the order in hand, you should be able to dispose of these objections through letter-writing, involving the court only if necessary.

Once you know the identity of the anonymous user, you can now amend the lawsuit to substitute the appropriate person for “John Doe.” With an actual defendant named, you can then begin the lawsuit in earnest to hold the no-longer-anonymous user liable for trolling online.

Conclusion

The prospect of trying to identify an anonymous online user can be daunting. But, armed with an understanding of the First Amendment and the applicable procedure, you can readily evaluate whether an anonymous user has engaged in unlawful conduct and whether you can successfully hunt down the troll to hold him or her liable. Good hunting!

References:

[1] Pew Research Center, December, 2016, “Online Shopping and E-Commerce.”

[2] YP Marketing Solutions, 2016, “The Why Before the Buy.”

[3] Id.

[4] Id.

[5] Reno v. ACLU, 521 U.S. 844, 897, 117 S. Ct. 2329, 2344 (1997).

[6] In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011) (citing Meyer v. Grant, 486 U.S. 414, 422, 425, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988)).

[7] McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 342, 115 S. Ct. 1511, 1516 (1995) (“[A]n author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”); Anonymous Online Speakers, 661 F.3d at 1173 (“Although the Internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech—there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to online speech.”); Doe v. Reed, 561 U.S. 186, 218, n.4, 130 S. Ct. 2811, 2831 (2010) (recognizing that the freedom of speech “can be burdened by a law that exposes a speaker to harassment, changes the content of his speech, or prejudices others against his message”)

[8] Anonymous Online Speakers, 661 F.3d at 1173.

[9] Chaplinsky v. N.H., 315 U.S. 568, 571-72, 62 S. Ct. 766, 769 (1942).

[10] Mobilisa, Inc. v. Doe, 217 Ariz. 103, 106-7, ¶¶ 2-9, 170 P.3d 712, 715-16 (Ct. App. 2007).

[11] Anonymous Online Speakers, 661 F.3d at 1173.

[12] Glassdoor, Inc. v. Superior Court, 9 Cal. App. 5th 623, 626-27, 215 Cal. Rptr. 3d 395, 399-400 (Cal. App. 6th Dist. 2017).

[13] Salehoo Group, Ltd. v. ABC Co., 722 F. Supp. 2d 1210, 1212-13 (W.D. Wash. 2010)

[14] Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 62 Va. App. 678, 686-88, 752 S.E.2d 554, 557-58 (Va. Ct. App. 2014).

[15] https://www.facebook.com/terms.

[16] https://twitter.com/tos?lang=en.

[17] https://www.facebook.com/help/contact/191381691012854; https://support.twitter.com/articles/15789.

[18] https://www.google.com/intl/en-GB/policies/terms/.

[19] Seitz v. Rheem Mfg. Co., 544 F. Supp. 2d 901, 907 (D. Ariz. 2008) (“Although a corporation may maintain an action for libel, it has no personal reputation and may be libeled only by imputation about its financial soundness or business ethics.”).

[20] Desert Palm Surgical Group, P.L.C. v. Petta, 236 Ariz. 568, 579, ¶ 26, 343 P.3d 438, 449 (Ct. App. 2015).

[21] Read v. Phoenix Newspapers, 169 Ariz. 353, 355, 819 P.2d 939, 941 (1991) (“In a civil action for libel, the truth of the contents of the allegedly libelous statement is a complete defense.”)

[22] Yetman v. English, 168 Ariz. 71, 76, 811 P.2d 323, 328 (1991) (“The key inquiry is whether the challenged expression, however labeled by defendant, would reasonably appear to state or imply assertions of objective fact.”)

[23] Makaeff v. Trump Univ., LLC, 715 F.3d 254, 270 (9th Cir. 2013) (recognizing that a limited liability company can be an all-purpose public figure or a limited purpose public figure)

[24] Dube v. Likins, 216 Ariz. 406, 411, ¶ 8, 167 P.3d 93, 98 (Ct. App. June 28, 2007) (citing Miller v. Hehlen, 209 Ariz. 462, 471, ¶ 32, 104 P.3d 193, 202 (App. 2005)).

[25] W. Tech. v. Sverdrup & Parcel, Inc., 154 Ariz. 1, 4 (Ct. App. 1986)

[26] POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2234 (2014) (“The Lanham Act creates a cause of action for unfair competition through misleading advertising or labeling.”)

[27] 18 U.S.C. § 1836; A.R.S. § 44-401, et seq.

[28] Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999); see also Anonymous Online Speakers, 661 F.3d at 1177 (recognizing that “[t]he lowest bar that courts have used is the motion to dismiss or good faith standard.”).

[29] Id. at 578-80.

[30] Anonymous Online Speakers, 661 F.3d at 1176-77; Salehoo, 722 F. Supp. 2d at 1216 (finding that “the prima facie standard is appropriate in order to guarantee that the plaintiff has brought viable claims in connection with his or her attempt to unmask the anonymous defendant.”); Lassa v. Rongstad, 294 Wis. 2d 187, 215 (Wis. 2006) (applying the motion to dismiss standard before compelling disclosure of anonymous identity); Hadley v. Doe, 2015 IL 118000, ¶ 27 (Ill. 2015).

[31] John Doe No. 1 v. Cahill, 884 A.2d 451, 460 (Del. 2005)

[32] Cahill, 884 A.2d at 460; Mobilisa, 217 Ariz. at 110, ¶ 22; Solers, Inc. v. Doe, 977 A.2d 941, 954 (D.C. 2009); Doe v. Coleman, 497 S.W.3d 740, 747 (Ky. 2016); Ghanam v. Does, 303 Mich. App. 522, 541-42 (2014); Ottinger v. Non-Party The Journal News, 2008 N.Y. Misc. LEXIS 4579, **4-7 (N.Y. Sup. Ct. 2008); Pilchesky v. Gatelli, 12 A.3d 430, 442 (Pa. Super. Ct. 2011); In re Does 1-10, 242 S.W.3d 805, 821-23 (Tex. App. Texarkana 2007); Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1167-73 (2008); Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432, 457-58 (Md. 2009); Mortgage Specialists v. Implode-Explode Heavy Indus., 999 A.2d 184, 193, ¶ 13 (N.H. 2010).

[33] Mobilisa, 217 Ariz. at 112, ¶ 28; Coleman, 497 S.W.3d at 747; Ottinger, 2008 N.Y. Misc. LEXIS at **4-7; Brodie, 966 A.2d at 457-58;Mortgage Specialists, 999 A.2d at 193, ¶ 13.

[34] Mobilisa, 217 Ariz. at 112, ¶ 28; Solers, 977 A.2d at 954; Dendrite Intern., Inc. v. Doe No. 3, 342 N.J. Super. 134, 156-58 (2001); Ghanam, 303 Mich. App. at 541-42; Ottinger, 2008 N.Y. Misc. LEXIS at **4-7; Krinsky, 159 Cal. App. 4th at 1167-73; Brodie, 966 A.2d at 457-58;Mortgage Specialists, 999 A.2d at 193, ¶ 13.

[35] Glassdoor, 9 Cal. App. 5th at 636, 215 Cal. Rptr. 3d 395, 407.

This post was written by Kevin Heaphy of   2017 Ryley Carlock & Applewhite. A Professional Association

EU Investigating Geo-Blocking of Online Video Games

On May 6, 2015, the European Competition Commission released a new Digital Single Market Plan, and simultaneously launched a broad antitrust investigation into e-commerce.  The DSM plan, consisting of sixteen proposals, seeks to create a single digital European market where access to digital goods and services is unfettered across all 28 member states.  The European Competition Commission will investigate whether firms’ restrictions on cross-border online trade violate the EU competition laws, and attempt to remedy them through enforcement mechanisms.  High on the list is the geo-blocking of online content, including video games.  The impending probe will likely target some large U.S. technology companies.

Geo-blocking is a technical barrier that allows online merchants to charge different prices or restrict users’ access based on physical location or credit card information.  For example, a German resident may have to pay more for a pair of shoes purchased online from an Italian retailer than someone living in Italy.  With respect to gaming, the investigation will focus on the geo-blocking of video games that are sold online for use on personal computers.  The Digital Single Market plan is highly critical of geo-blocking―which it describes as violating the EU’s goal of free movement of commerce within its borders―and proposes to eliminate the practice altogether.  But the Competition Commission cannot seek to change a firm’s business practice unless it violates EU antitrust law, necessitating a rigorous investigation.

To determine whether certain geo-restricting practices are anticompetitive, the Commission will analyze game publishers’ business practices, probing into their contractual limitations on the distribution of online video games.  EU Competition Chief Margrethe Vestager said that geo-restrictions “are often the result of arrangements that are included in contracts between manufacturers and content owners on one side and their distributors on the other.”  Accordingly, the Commission is willing to go as far as “examining the clauses in their contracts.”  But the Commission also recognizes that companies use geo-blocking for legitimate and procompetitive reasons, like restricting information to paying customers and protecting copyrighted material.

The probe will begin with comprehensive questionnaires sent to companies involved in e-commerce within the EU and could potentially lead to formal inquiries and enforcement actions.  Commissioner Vestager hopes to have preliminary findings by mid-2016.

The probe may target large U.S. technology companies, especially if they are suspected of abusing their dominant position to restrict trade.  EU competition law places certain duties on companies that are “dominant” in their markets (a fairly low bar compared to US standards), and abuse of a dominant position can be illegal.  American technology companies tend to be larger and more successful than their European counterparts, so they may trigger the Commission’s scrutiny.  Accoring to Vestager, “every company that sells products online, including their suppliers and their technology providers, will be affected. Potentially, the scope will be very wide.”  On the gaming front, the probe may affect large online game developers.

The Commission hopes that the creation of a single digital market will boost European startups by making it easier for them to launch and grow quickly across borders, similar to the advantage American companies have to rapidly gain a national user base in the U.S.  “We want companies in Europe to use the Digital Single Market to scale up, not move out,” said Andrus Ansip, the EC’s Vice President of Digital Single Market.  So it’s not surprising that the proposal and investigation come on the heels of the EU’s crackdown on American tech giants, the re-opening of the Google investigation being the most recent example.  Indeed, some commentators have characterized the move as protectionist, given Europe’s recent concerns over the increasing power of large U.S. web companies.

The ramifications of the DSM plan are not yet clear, but game companies that use geo-blocking may have to look for other solutions in the future.

ARTICLE BY

Nadezhda Nikonova of Sheppard, Mullin, Richter & Hampton LLP

How to Build a Lead Generation Machine Online with Content Marketing (Part 2 of 2)

If you struggle with creating quality content for your website or blog, I’ve pulled together 8 best practices for content marketing to guide you.  If you missed the first four in the series of eight, see yesterday’s blog post here.

These are the second 4 of 8 best practices in content marketing:

Best Practice 5: Use video to give visitors a sense of who you are. Video is one of the best ways to improve your website conversion rates. I highly recommend you record several videos for your website: an overview of each major practice area your firm offers, a few case studies of typical clients you want to attract, a video introduction for each attorney, and reasons why people should hire you versus a competitor. You can also add videos from seminars or presentations you make to add more content to your site.

Best Practice 6: Take a position on a topic and frequently update your blog. When you begin a blog, you need to make sure that it is a topic you feel passionate about. Make sure that you will still be energized to write about the topic in six months or a year. You also need to make sure that there is an audience for your blog.

In order to keep your website and blog at the forefront of Google’s mind, you will need to post regularly. The most successful lead generation blogs post every day. If you aren’t willing to post new content at least a few times per week then you should seriously consider hiring someone to do the writing for you. In a survey of over 7,000 small businesses, Hubspot.com found companies that blog 15 or more times per month generate five times as much traffic as companies that don’t blog!

Best Practice 7: Add social media to your website to make it easier for people to share your content online. Most major websites people visit have fully integrated social media-whether its Facebook, LinkedIn or Twitter you want to make it easy for people to share your content with their friends and colleagues.

Best Practice 8: Keep your content consistent with your brand. If you’re an estate planning attorney, write about estate planning and rarely about anything else. Professional blogs need to remain professional. The tone, content and focus should demonstrate the type of attorney you are. If your office is more relaxed and friendly, then try to convey that in the tone of your blogs. If your firm is more traditional, that too should be apparent in the tone of your piece.

Your content also needs to stay relevant. If there is a major change in what area of law you practice in, then you should be discussing it right away on your blog. If there is a big ruling in your practice area that is causing a lot of questions or anxiety for clients and prospects and you are the last person to mention in on their website or blog, then chances are the readers will have moved on to someone who is more on top of things.

Conclusion. Content marketing is one of the best ways to build targeted traffic to your website and become recognized as a thought leader. However, it is a long-term strategy so set your expectations appropriately. Depending on the level of competition in your practice area, how well-established your website/blog is, which key terms you are targeting, and how frequently you update your blog it may take several months to start seeing some significant results.

Content Marketing

ARTICLE BY
Stephen Fairley

OF
The Rainmaker Institute

How to Build a Lead Generation Machine Online with Content Marketing (Part 1 of 2)

The Rainmaker Institute

If you are looking to drive more high quality traffic to your law firm’s website, one of the best ways to do so is via unique, high quality content on your blog.

lead generationIt is estimated that 95% of law firms already have a website, but too few attorneys are consistently generating quality leads from their online presence because they lack great content.

Google has made it increasingly difficult to rank high without putting a lot of quality content on your website.  If you want to continue ranking well on Google, which drives more qualified traffic to your website so you can generate more online leads, you must put more and more content on your website.

Here are the first 4 of 8 best practices in content marketing:

Best Practice 1: Create content prospects will connect with and will want to read. If your website is the first to pop up in a Google search, but a potential client reads your home page and finds it littered with meaningless legal jargon, then chances are they are going to move on to website number two. People hire attorneys they feel a connection with. If the viewer doesn’t connect with your website, then chances are they aren’t going to call you.

By creating content that viewers find informative and relevant, easy to digest and in multiple formats (like audio or video as well as written) you are encouraging them to spend more time on your site. By filling each page with informative and easy-to-understand language, an attorney is boosting their visibility on the web and converting browsers into believers.

Best Practice 2: Know the critical keywords prospects use to search. While Google is making sure the context fits the keywords, websites still need to focus on certain keywords. Start by making a list of at least 20-30 terms you believe an interested prospect might use to search for your kind of services. Then do your research.

I recommend two sites: Google Keyword Tool and WordTracker.com. You can find the first one simply by searching on Google for it. The terms definitely emphasize Google’s pay-per-click model, which is why I strongly recommend double checking your findings against the results from WordTracker.com. Use only one or two key terms per blog post and do not post duplicate content.

Best Practice 3: Make sure your blog is on the same domain/subdomain. I used to recommend having two different sites: your primary website and a separate blog site. Due to the recent changes in Google I now recommend keeping your blog on your website (use ABClaw.com/blog instead of blog.ABClaw.com). If you already have two separate sites don’t combine them unless they are less than six months old.

By integrating your blog and your website in one place, you can increase your rankings by adding more content via your blog. Topics for your blog can include recent cases you have handled, commenting on current events or stories in the media, answering frequently asked questions, and discuss aspects of the law.

Best Practice 4: Create geo-targeted pages. You need to write several pages for each city you want to target. For example, if you are a business litigation attorney in the East Valley of Phoenix, you want to have several pages of content focusing on each of the following cities: Phoenix, Tempe, Chandler, Scottsdale, Mesa, Gilbert, etc.

Do not make the mistake of only targeting Phoenix because every single other attorney is doing that. Put as many pages of content up there for the secondary cities. Even though you will not receive nearly as many hits for those cities the competition to rank on the first page of Google will be significantly less.

Come back here tomorrow where I will share the last 4 of 8 best practices for content marketing.

ARTICLE BY

Stephen Fairley
OF
The Rainmaker Institute

How to Build Trust Online by Being Human

The Rainmaker Institute

All you have to do is troll your own Facebook or LinkedIn account to know that there is LOTS of content online.

In fact, a recent post at Buffer.com noted that more content is published every day on Facebook than is found in every book published in human history!

Building Blocks with Trust

So how do you stand out from that enormous crowd and earn the trust you need to succeed with your social media marketing program?  Buffer provides these tips:

Use personal pronouns.  Using personal pronouns in your posts — I, we, you, me, etc. — and being more conversational elicits empathy from an audience, getting  you a better response.

Use simple words.  By using simple words, you can convey your idea in a way that people don’t have to think about before understanding it.  Big words and legalese will tend to alienate people, not draw them in.

Use stories.  Since the beginning of time, humans have communicated by telling stories and the propensity to listen to a story is ingrained in our DNA.  A Buffer study showed that adding a story to your blog post can increase readership by 300%.

Use contemporary culture references.  Weaving a pop culture reference or two into your post, especially if you’re able to add a celebrity name or two like Beyoncéor George Clooney (see how I did that?), helps boost readership and interest.

Use the Shaq Rule.  Shaquille O’Neal is a social media powerhouse, with a Twitter following of 8.5 million and 4.7 million Facebook fans.  His rule for posting is that 80% of his posts must be entertaining, 15% must be informative and only 5% should sell something.  People can sniff out a sales pitch online immediately, and just as quickly they are on to the next thing.

ARTICLE BY

Morgan Kennedy
OF
Covington & Burling LLP

The Effect of On-line Shopping on Retail Leases and Percentage Rent

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“Percentage Rent” is a familiar concept to retailers and landlords and has long formed a significant aspect of the business arrangement between commercial landlords and their retail tenants.  In a lease arrangement that includes percentage rent, a landlord may negotiate a relatively reduced base rent for the chance to have some “skin in the game” by agreeing to participate in a percentage of tenant’s revenue, through gross sales, when that revenue exceeds a certain threshold amount.  Tenants appreciate this arrangement because they pay percentage rent if they are doing well and their sales exceed that negotiated threshold level. Landlords appreciate this model because it compensates them for the costs they incur in creating and maintaining successful shopping centers with amenities, such as food courts and open spaces.  If a successful shopping center drives foot traffic to individual tenants that increases their sales, tenants are often willing to compensate landlords for their part in driving that foot traffic.  The concept really is a “rising tide lifts all boats” model, in which landlords and tenants work as partners.

The explosion of on-line shopping throws a wrench into this scheme.  With more people purchasing from retailers on-line, and more retailers encouraging customers to place orders on-line, how will retail leases with percentage rent provisions be affected? Many percentage rent leases are carefully crafted to limit the types of sales that count toward the revenue in which landlord shares, often by including as only those sales “made from the store.”  The question to consider: if a large percentage of a store’s sales are made on-line, can or should those sales be treated as made from, or initiated in that store, such that the landlord will be entitled to a percentage of such sales?

It is clear that out of stock items unavailable during a customer’s visit to a store, but ordered at the store and delivered directly to the customer’s home should be counted toward gross sales at that store and counted toward the percentage rent calculation.  Similarly, on-line sales made at a computer terminal in the store, or on-line sales made at the customer’s home and picked up at the store should also be counted.  It becomes much less clear when a customer never sets foot in the store itself in either placing an order or receiving goods.  It may be difficult for a landlord to assert their right to a percentage of an on-line sale made by a customer in their home where the merchandise is then delivered directly to that customer’s home where the transaction occurs without any contact with the store premises.

As traditional retail stores work to accurately account for on-line sales with their landlords, another issue has recently emerged.  Traditional on-line only merchants such as Amazon have seen a potential benefit of having a brick and mortar presence to market their business and may soon open physical locations.  The question of percentage rent may become even more difficult to account for when the store front is really merely a marketing device to drive customers to company websites.

A thoughtful balance should be found to properly compensate Landlords for the sales they are driving to retailers. At the same time, from tenant’s perspective retail leases must be carefully drafted to exclude sales that are not derived from a particular store.  If this balance is struck properly, landlord/tenant partnerships will be well positioned for success in the retail and commercial real estate markets.

Article By:

Geoffrey H. Smith
Of: 
Sherin and Lodgen LLP

California District Court Holds that Providing Cellphone Number for an Online Purchase Constitutes “Prior Express Consent” Under TCPA – Telephone Consumer Protection Act

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A federal district court in California recently ruled that a consumer who voluntarily provided a cellphone number in order to complete an online purchase gave “prior express consent” to receive a text message from the business’s vendors under the TCPA. See Baird v. Sabre, Inc., No. CV 13-999 SVW, 2014 WL 320205 (C.D. Cal. Jan. 28, 2014).

In Baird, the plaintiff booked flights through the Hawaiian Airlines website. In order to complete her purchase, the plaintiff provided her cellphone number. Several weeks later she received a text message from the airline’s vendor, Sabre, Inc., inviting the plaintiff to receive flight notification services by replying “yes.” The plaintiff did not respond and no further messages were sent. The plaintiff sued the vendor claiming that it violated the TCPA by sending the single text message.

The central issue in Baird was whether, by providing her cellphone number to the airline, the plaintiff gave “prior express consent” to receive autodialed calls from the vendor under the TCPA. In 1992, the FCC promulgated TCPA implementing rules, including a ruling that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C.R. 8752, 8769 ¶ 31 (1992) (“1992 FCC Order”). In support of this ruling, the FCC cited to a House Report stating that when a person provides their phone number to a business, “the called party has in essence requested the contact by providing the caller with their telephone number for use in normal business communications.” Id. (citing H.R.Rep. No. 102–317, at 13 (1991)).

The court found that, while the 1992 FCC Order “is not a model of clarity,” it shows that the “FCC intended to provide a definition of the term ‘prior express consent.’” Id. at *5. Under that definition, the court held that the plaintiff consented to being contacted on her cellphone by an automated dialing machine when she provided the number to Hawaiian Airlines during the online reservation process. Id. at *6. Under the existing TCPA jurisprudence, a text message is a “call.” Id. at *1. Furthermore, although the plaintiff only provided her cellphone number to the airline (and not to Sabre, Inc., the vendor), the court concluded that “[n]o reasonable consumer could believe that consenting to be contacted by an airline company about a scheduled flight requires that all communications be made by direct employees of the airline, but never by any contractors performing services for the airline.” Id. at *6. The Judge was likewise unmoved by the fact that the plaintiff was required to provide a phone number (though not necessarily a cellphone number) to complete the online ticket purchase. Indeed, the court observed that the affirmative act of providing her cellphone number was an inherently “voluntary” act and that, had the plaintiff objected, she could simply have chosen not to fly Hawaiian Airlines. Id.

Baird does not address the October 2013 TCPA regulatory amendments that require “prior express written consent” for certain types of calls made to cellular phones and residential lines (a topic that previously has been covered on this blog). See 47 CFR § 64.1200(a)(2), (3) (emphasis added). “Prior express written consent” is defined as “an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial prerecorded voice, and the telephone number to which the signatory authorized such advertisements or telemarketing messages to be delivered.” 47 CFR § 64.1200(f)(8). Whether the Baird rationale would help in a “prior express written consent” case likely would depend on the underlying facts such as whether the consumer/plaintiff agreed when making a purchase to be contacted by the merchant at the phone number provided, and whether the consumer/plaintiff provided an electronic signature. See 47 CFR § 64.1200(f)(8)(ii).

Nonetheless, Baird is a significant win for the TCPA defense bar and significantly reduces TCPA risk for the defendants making non-telemarketing calls (or texts) to cellphones using an automated dialer (for which “prior express consent” is the principal affirmative defense). If that cellphone number is given by the consumer voluntarily (and, given the expansive logic of Baird, we wonder when it could be considered “coerced”), the defendant has obtained express consent. Baird leaves open a number of questions worth watching, including how far removed the third-party contractor can be from the company to whom a cellphone number was voluntarily provided. Judge Wilson seemed to think it was obvious to the consumer that a third-party might be utilized by an airline to provide flight status information, but how far does that go? We’ll be watching.

Article By:

Of:

Drinker Biddle & Reath LLP

California Continues to Shape Privacy Standards: Song-Beverly Act Extended to Email Addresses

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Executive Summary: California retailer restricted from requiring a customer email address as part of a credit card transaction. We knew that asking for zip codes is intrusive personal questioning, and now asking for email has been added to the list.

California’s Song-Beverly Credit Card Act (Cal. Civ. Code Sec. 1747 et seq.) (“Song-Beverly Act” or “Act”) restricts businesses from requesting, or requiring, as a condition to accepting credit card payments that the card holder provide “personal identification information” that is written or recorded on the credit card transaction form or otherwise. “Personal identification information” means “information concerning the cardholder,other than information set forth on the credit card, and including, but not limited to, the card holder’s address and telephone number.” The California Supreme Court has previously ruled that zip codes are also “personal identification information” under the Song-Beverly Act. See Pineda (Jessica) v. Williams-Sonoma Stores, Inc., 2011 Cal. LEXIS 1502 (Cal. Feb. 10, 2011).

Recently, a United States federal district court in California expanded “personal identification information” to include email addresses in a decision denying retailer Nordstrom’s motion to dismiss claims it violated the Song-Beverly Act. The plaintiff sued Nordstrom for collecting his email address as part of a credit card transaction at one of its California stores in order to email him a receipt, then subsequently using his email address to send him frequent, unsolicited marketing emails. See Capp v. Nordstrom, Inc., 2013 U.S. Dist. LEXIS 151867, 2013 WL 5739102 (E.D. Cal. Oct. 21, 2013).

Raising a case of first impression under California law, Nordstrom claimed that email addresses are not “personal identification information” under the Song-Beverly Act, so the Act did not apply. The court disagreed with Nordstrom and found the opposite based on the California Supreme Court’s earlier ruling in Pineda. Nordstrom’s argument that email addresses can readily be changed, unlike zip codes, and consumers can have multiple email addresses was not persuasive. The court held that an email address regards a card holder in a more personal and specific way than a zip code. Unlike a zip code that refers to the general area where a card holder works or lives, email permits direct contact with the consumer and implicates their privacy interests. The court concluded that the collection of email addresses is contrary to the Song-Beverly Act’s purpose to guard against misuse of personal information for marketing purposes. In particular, the plaintiff’s allegation that his email address was collected to send him a receipt and then used to send him promotional emails directly implicates the protective purposes of the Act as interpreted in Pineda.

Pineda held that zip codes are personal information for purposes of the Song-Beverly Act, and therefore a brick and mortar retailer violated the Act when it requested and recorded such data. In the Pineda decision, the California Supreme Court found that zip codes, like the card holder’s address expressly called out as “personal identification information” under the Act, were unnecessary to completing the credit card transaction and inconsistent with the protective purpose of the Act. This is especially true when a zip code is collected to be used with the card holder’s name in order to locate the card holder’s address, permitting a retailer to locate indirectly what it is prohibited from obtaining directly under the Act.

Nordstrom also argued that the plaintiff’s claims under the Song-Beverly Act were preempted by the federal “Controlling the Assault of Non-Solicited Pornography and Marketing Act” (better known as the CAN-SPAM Act), but the court disagreed. While the CAN-SPAM Act contains a preemption provision, it only preempts state laws that regulate the manner in which email messages are sent and their content, both of which are not regulated under the Song-Beverly Act.

Retailer tip: The federal court issuing this most recent decision recommends waiting to request an email address (or a zip code) until after the consumer has the receipt from their credit card transaction in hand, and then sending the consumer emails only in conformance with the CAN-SPAM Act.

In the wake of Pineda, retailers faced class action lawsuits for requesting consumer zip codes at check out. This new decision could have a similar effect.

Article by:

Of:

Womble Carlyle Sandridge & Rice, PLLC

New Online Privacy Policy Requirements Take Effect January 1, 2014

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California Online Privacy Protection Act (CalOPPA)

Owners of websites, online services or mobile applications (apps) that can be accessed or used by California residents should ensure their compliance with the new amendments to the California Online Privacy Protection Act of 2003 (CalOPPA) by the law’s January 1, 2014 effective date.  The borderless nature of the Internet makes this law applicable to almost every website or online service and mobile application.  Accordingly, companies should review and revise their online privacy policies to ensure compliance with the new law and avoid potentially significant penalties.

Previously, CalOPPA required the owner of any website or online service operated for commercial purposes (an “operator”) that collects California residents’ personally identifiable information (PII) to conspicuously post a privacy policy that met certain content requirements, including identifying the types of PII collected and the categories of third parties with whom that information is shared. The new law requires that companies subject to CalOPPA provide the following additional disclosures in their privacy policies.

  • How an operator responds to “do not track” signals from Internet browsers and any other mechanism that provides consumers a choice regarding the collection of PII about an individual consumer’s online activities over time and across third-party websites and online services.  A company may satisfy this requirement by revising its privacy policy to include the new disclosures or by providing a clear and conspicuous hyperlink to a webpage that contains a description of any program or protocol the company follows to provide consumers a choice about tracking, including the effects of the consumer’s choice.
  • An affected company must disclose to users whether third parties may collect PII about a user’s online activities over time and across different websites when a consumer uses the operator’s website or online service. However, an operator is not required to disclose the identities of such third parties.

The California law does not require that operators honor a user’s “do not track” signals. Instead, operators must only provide users with a disclosure about how the website or mobile app will respond to such mechanisms. “Do not track” mechanisms are typically small pieces of code, similar to cookies, that signal to websites or mobile apps that the user does not want his or her website or app activities tracked by the operator, including through analytics tools, advertising networks, and other types of data collection and tracking practices.  Further, the Privacy Enforcement and Protection Unit of the California Office of the Attorney General recently stated that the required disclosures should not be limited to tracking simply for online behavioral advertising purposes, but those disclosures must extend to any other purpose for which online behavioral data is collected by a business’s website (e.g., market research, website analytics, website operations, fraud detection and prevention, or security).

A violation of the law can result in a civil fine of up to $2,500 per incident. The California Attorney General maintains that each noncompliant mobile app download constitutes a single violation and that each download may trigger a fine.

Given that most company websites will have California visitors, companies should consider taking the following steps to ensure compliance with the CalOPPA amendments by January 1, 2014:

  • Identify the tracking mechanisms in place on your company’s websites and online services, including (a) the specific types of PII collected by the tracking mechanism and (b) whether users have the option to control whether and how the mechanisms are used and how the website responses responds to “do not track” signals by seeking input from those familiar with your website, including (i) technicians and developers who understand the mechanics of how the website operates, including how it responds to “do not track signals,” (ii) financial and marketing personnel who understand how user PII is monetized, and (iii) any other stakeholders who access or handle user PII.
  •  Review the practices of any third parties that have the ability to track users on your website. To draft the new disclosures, you will need to understand how those third parties track your users and whether they are capable of doing so before or after the users leave your service.
  • Incorporate the information identified above to modify your online privacy policy to include the required behavioral tracking disclosures.
  • Retain the prior version of the policy in your records, including the date on which each version was posted to the site. The new version should have an updated effective date to distinguish it from the previous version.

Expansion of California’s Data Breach Notification Requirements

Under another new law taking effect on January 1, 2014, California will expand its data breach notification requirements by adding new types of information to the definition of “personal information” under California Civil Code §§ 1798.29 and 1798.82. The new law requires notification if a California resident’s personal information is compromised, and, as with CalOPPA, the breach notification requirements apply regardless of the location of the organization that sustains the breach.  Therefore, to the extent that your business collects and retains California residents’ PII, then the amended California breach notification law would apply.

Previously, the California law required notification of a data breach in the event of the unauthorized access to or disclosure of an individual’s name, in combination with that individual’s (i) Social Security number, (ii) driver’s license or California ID number, (iii) account, credit or debit card number, together with a security or access code, (iv) medical information, or (v) health information, where either the name or the other piece of information was not encrypted. Under the new definition, “personal information” will also include “[a] user name or email address, in combination with a password or security question and answer that would permit access to an online account.”

Accordingly, if your business or organization collects this type of information, then it should consider undertaking the following proactive measures to reduce the risk and magnitude of a potential data breach:

  • Periodically and systematically delete nonessential personal information. By deleting obsolete PII and other sensitive information, businesses can significantly reduce the risk of a breach.  Retaining such obsolete legacy PII serves no business purpose, but only adds unnecessary exposure and potential liability.
  • Conduct a PII inventory and perform a risk assessment of your security measures.  Identify what PII is being collected by your organization, where it is retained, who has access to the PII and  the security measures to protect the PII.  Ensuring that sufficient protections are in place may not prevent every incident, but they can reduce the possibility of an incident occurring in the first place and limit the disruption to your business if there is a breach.
  • Limit the disclosure of PII to third parties only when necessary to provide services or products. You can be equally responsible for a data breach notification if the person or entity who experiences the data breach was a third party who received PII from you. Any vendor or third party with whom you share PII should contractually represent and warrant that they have in place certain standards for protecting that information and agree to indemnify your company for any loss that results from a breach.

 

Article by:

Of:

Vedder Price