Internet Archives - Page 29 of 30 - The National Law Forum

Internet Defamation—What Can You Do When You Are the Target?

Amy D. Cubbage of McBrayer, McGinnis, Leslie and Kirkland, PLLC recently had an article, Internet Defamation—What Can You Do When You Are the Target?, published in The National Law Review:

We’ve all seen them. Anonymous spewing hate-filled, defamatory statements on Facebook and Twitter, as well as in the comment pages of news stories on both local and national news. The commenters have a certain entertainment value, until you or your business are in their sights. So what do you do? The answer is not always so simple, especially when you don’t even know who is speaking.

Internet freedom has allowed for an unprecedented expansion in opportunities for the Average Joe to speak, but that expansion has come with a price for those defamed on the internet. In order to foster a free and expansive internet, in 1996 Congress enacted Section 230 of the Communications Decency Act, 47 U.S.C. § 230. Section 230 grants interactive internet service providers (such as Facebook, Yelp, YouTube, and Twitter) immunity from civil defamation claims for user-created content.

There are very few exceptions to Section 230 immunity, with the only one recognized in case law being a case in which provider Roommates.com directed the posts to a certain extent using drop-down menus. See Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9thCir. 2008). Providers have learned from Roommates.com’s example and are careful to maintain their Section 230 immunity.

What this means in simple terms is that if you or your business is defamed on Facebook or Twitter, you can’t sue Facebook or Twitter, and you can’t force Facebook or Twitter to remove the defamatory postings. Section 230 forces you to attempt to track down the user who originally posted the speech—often a virtual impossibility in this day and age when the vast majority of defamatory postings on the internet are done anonymously.

So what can you do? First, don’t give up on social media and its ability to deal with at least some of the problems. Interactive internet service providers are aware of the damage defamatory statements can do, and know that they risk losing their Section 230 immunity if they don’t self-police to a certain extent. All interactive internet service providers have terms of service, and the majority ban defamatory and harassing speech. Most will delete the offending material upon a showing that the material is indeed defamatory (i.e., not protected opinion), and most providers include a function allowing you to report the post directly from the webpage, without the need to send a demand letter from an attorney.

Furthermore, interactive internet service providers realize that though anonymity enjoys protections under the First Amendment, it also feeds a great deal of the ugliness seen on the internet today. Facebook, for instance, requires posters to use their real names, and if Facebook is informed that a person is using a pseudonym, Facebook will disable the account. Likewise, news sites are increasingly requiring commenters to link their comments to their Facebook accounts in order to provide a measure of accountability that anonymous posts lacked. YouTube also recently began asking posters to use real names, though that is not currently a requirement. Not all interactive internet service providers eschew anonymity – Twitter and Tumblr still tout the user’s ability to post anonymously – but increasing numbers of providers are requiring that speakers stand behind their comments.

If you can’t get posts removed through the interactive internet service provider, you still have legal options available. Of course, quite often the best action at this point is no action. Often defamation lawsuits are counterproductive in that they simply bring more attention to the posts than if the posts are simply ignored. While difficult to do, sometimes ignoring a simply nasty post is the best policy.

If the post can’t be ignored but is not worth litigation, you can engage with the poster on the interactive site. If someone posts a negative review on Yelp, address the review and contest any factual misrepresentations. If someone posts on your Facebook wall or sends an angry or defamatory Tweet, address the poster’s concerns. You have the right to speak too, and quite often thoughtful, careful engagement is the best remedy.

Some posts are simply so egregious and damaging that they must be addressed in a court of law. If action is warranted, and you are lucky enough to have the name of the poster, you can pursue traditional legal avenues available to victims of defamatory speech.

If you do not have the name, however, if you want to take action you will need to file a civil defamation lawsuit naming as defendant a John Doe. Unfortunately, even though many interactive internet service providers will remove defamatory posts upon request, none will give up the names, email addresses, or IP addresses of posters without a subpoena. Once litigation is filed, you and your legal counsel will have subpoena power to require the interactive internet service provider to give up the names, emails and IP addresses associated with the poster. Normally the providers will still put up a fight even in light of a subpoena, but this is the only way available to obtain the identity of an anonymous poster so that you can hold them responsible for their defamatory speech.

While we have the right to free speech in the United States, our laws require us to take responsibility for what we say when we are wrong and our speech causes damage. In the case of internet-based speech, it may be difficult to vindicate your rights and hold speakers responsible, but with persistence and a clear understanding of how interactive internet service providers work you can protect your good name on the internet.

Domain Names and the First Amendment: The Latest Word

The National Law Review recently featured an article regarding Domain Names written by Tim Hyland of Ifrah Law:

The intersection of domain names and the First Amendment is not new. Indeed, in the early days of the domain name system, courts considered the issue of whether a domain name registrar could prohibit the registration of domain names on the basis of content – for instance, domain names containing profanities. See Nat’l A-1 Advertising, Inc. v. Network Solutions, Inc., 121 F. Supp. 2d 156 (D.N.H. 2000); Seven Words LLC v. Network Solutions, Inc., 260 F.3d 1089 (9th Cir. 2001). However, the U.S. Court of Appeals for the Fifth Circuit recently was confronted, in Gibson v. Texas Dep’t of Insurance, with a new twist on the First Amendment as it applies to domain names: whether a particular domain name is pure “commercial speech” (entitled to only limited First Amendment protection) or “expressive speech” (entitled to more extensive protection).

The Texas Labor Code prohibits the use together of the words and phrases “Texas,” and “Workers Compensation,” or similar abbreviations. Nonetheless, Gibson, a workers compensation lawyer in Texas, registered the domain name texasworkerscomplaw.com. On the associated website, Gibson discusses matters relating to Texas workers compensation law and, of course, advertises his law practice. The Texas Department of Insurance took offense to Gibson’s domain name, and sent Gibson a cease and desist letter. Gibson, being a lawyer, sued in federal court, alleging that the Texas Labor Code restrictions violated his constitutional rights.

The Fifth Circuit, in an interesting opinion, addressed the commercial speech/pure speech dichotomy inherent in domain names used by commercial enterprises, but artfully dodged the question of whether the domain name was in fact commercial speech. Instead, the court first analyzed whether, if the domain name was in fact commercial speech (which can under some circumstances be restricted), it was the sort of commercial speech that the Texas Department of Insurance could restrict.

The court found, correctly, that commercial speech can be restricted only if it is “inherently likely to deceive.” The state argued that Gibson’s domain name implied a connection with or approval of the state. The Fifth Circuit dispensed with the state’s argument, noting that since there was nothing to suggest that texasworkerscomplaw.com could not be viewed in a non-deceptive fashion (a truism), the state could not restrict the use of the domain name as commercial speech.

There is a second exception allowing a restriction on commercial speech: A state may regulate non-deceptive commercial speech if the restriction “advances a substantial state interest” and is narrowly tailored to serve that interest. On this issue, the Fifth Circuit sent the case back to the federal district court to develop a factual record. It seems unlikely that the Texas Department of Insurance will prevail in the end, as the statute on which its objection is based is vastly overreaching, and would prohibit anyone providing services relating to workers compensation in Texas from registering domain names that accurately describe what they do. For instance, a physician who performs workers compensation examinations could not register texasworkerscompdoc.com (as of this writing, this domain name is available for the taking).

Obviously, such a domain name is not misleading, and there is no legitimate basis upon which the state can restrict it. Domain names are often a form of speech. Just because they are a relatively new format of expression does not change this fact and give the government a basis to attempt to restrict their use.

Social Media: The New Harassment Landscape Continued

Benjamin L. Riddle of McBrayer, McGinnis, Leslie and Kirkland, PLLC, recently had an article featured in The National Law Review regarding Social Media and Harassment:

A recent government study uncovered that 23% of harassment victims were targeted through text messaging, email or other digital forms. Not so long ago, the only evidence human resources had to investigate in harassment claims were the face-to-face comments of the parties involved, making the truth sometimes difficult to determine. With a digital trail of comments to follow, the investigation of harassment claims no longer relies on hearsay, recollection and “he said, she said” testimony, because nothing can refute written proof.

Even though there are pitfalls in allowing employees to use social media in the workplace, there are also very positive effects. Giving employees the ability to interact via social media keeps morale high, and can be a platform for work related resources. The marketing benefits of social media connections alone can outweigh the risks. The main objective of a social media policy should not be to ban social media usage on the job, but to protect itself through clear and concise social media policies. For example, a company’s anti-harassment policy should include social media and clearly state that derogatory comments about co-workers are prohibited and should be reported. Employers should offer training, not only to managers and supervisors, but to all employees about what is appropriate for online postings, and what is not. Perhaps most importantly, as illustrated in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), employers have an obligation to investigate complaints and reports of suspect social media abuse just as it would with traditional harassment claims.

Crafting social media policies can be tricky business. Finding the right balance between being overly broad and infringing on worker’s rights is a struggle. Recently the National Labor Relations Board (NLRB) found that social media policy of Costco Wholesale Corporation violated Section 7 of the National Labor Relations Act because it too broadly limited employees’ on-line comments and conduct. Complete restriction is not the path to fairness and protection. Rather finding a balance in a carefully worded policy that provides examples and avenues for employees to safely report any suspect activity.

The laws concerning harassment, especially online, are complex due to the intersection of longstanding legal principles and with technological proliferation. The best course of action in a harassment claim will vary greatly depending on the circumstances of the case.

Italian Data Protection Authority’s Guide on Cloud Computing

The National Law Review recently published an article, Italian Data Protection Authority’s Guide on Cloud Computing, written by Martino Sforza of McDermott Will & Emery:

The Italian Data Protection Authority (DPA) has published a guide on cloud computing, “How to Protect Your Data Without Falling From a Cloud,” which contains useful recommendations on how to select and appoint cloud providers and vendors of data management and storage services. This is the first official guidance issued by the Italian DPA in response to the fast growing use of cloud services in Italy and it might be of particular interest to employers who outsource their data systems to cloud service providers. The guide offers an overview of the potential issues linked to the various types of cloud services, whether they are managed on public, private or hybrid clouds. Under Italian law, cloud providers are appointed as a data processors while employers act as data controllers and will be liable for any wrongdoing committed by the data processors. Employers are therefore well advised to negotiate appropriate terms for the management of the “cloud-based” data and make sure that adequate technical and organizational measures are in place in order to avoid possible loss or unauthorized disclosure.

Click here to read the full guide on the Italian DPA website.

Cyber Attacks Hit Major Banks. Is Your Business Next?

Roy E. Hadley, Jr. and Joan L. Long of Barnes & Thornburg LLP recently had an article regarding Cyber Attacks published in The National Law Review:

Over the past week, several websites belonging to some of the largest banks in the country have been hacked in what experts are calling one of the “biggest cyber attacks they’ve ever seen.” As this CNN Money article points out, the websites “have all suffered day-long slowdowns and been sporadically unreachable for many customers.”

According to security experts, the “denial of service” attacks, which began on Sept. 19, are the largest ever recorded.

For all businesses, denial of service attacks are a growing and more menacing threat. Your customers can’t access your website and can’t buy your goods and services. This can be catastrophic to your company. So the question remains: What have you done to protect your business?

The CNN Money article can be read in its entirety clicking on the link below.

CNN Money – “Major banks hit with biggest cyberattacks in history”

Apple Shareholders Request Information From Board on Privacy/Security Risk

The National Law Review recently published an article, Apple Shareholders Request Information From Board on Privacy/Security Risk, by Amy Malone of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.:

This week, Apple shareholders requested that its Board of Directors publish a report explaining how the board oversees privacy and data security risks. The proposal, which is available here, was prompted by concern that recent issues such as the unauthorized access to iPhone users’ address books and the release of one million Unique Device IDs could place the company’s growth opportunities at risk.

The shareholder proposal references a recent study conducted by Carnegie Mellon University’s Cylab that made various recommendations to boards including, annual reviews of privacy and security programs to gage effectiveness and identify gaps and requiring regular privacy and security reports from management. The interest in privacy and security as risk management issues at both the shareholder and board level is increasing. A recent study conducted by Corporate Board Member & FTI Consulting, Inc. surveyed 11,340 corporate directors and 1,957 general counsel regarding legal risks on their radar. For the first time in the 12 years since the study has been conducted, data security was noted as the most prevalent concern among both directors (48 percent) and general counsel (55 percent). This level of concern has almost doubled in the last four years. For instance, in 2008, only 25 percent of directors and 23 percent of general counsel identified data security as an area of great concern. Moreover, 33 percent of general counsel surveyed believe their board is not effective at managing cyber risk. This is one of the lowest ratings among the 13 risk management areas surveyed.

When asked whether their company had a plan in place to manage a data breach should one occur, only 42 percent of directors said their company had a formal Incident Response Plan. Twenty-seven percent responded that their company had no such plan and 31 percent were uncertain. Despite acknowledging such unpreparedness, 77 percent of directors and general counsel still believe their company is prepared to handle a data breach. There is a serious concern, however, given the disconnect between having written response plans and the perception of preparedness. Apple shareholders are recognizing that disconnect and apparently want to ensure that its Board has adequately addressed it. The proposal will be voted on at Apple’s 2013 Annual Meeting.

Who owns your Twitter account?

Ryan C. Daugherty of McBrayer, McGinnis, Leslie and Kirkland, PLLC recently had an article about Twitter published in The National Law Review:

As more and more employees are tasked with — or even hired for the express purpose of — tweeting on behalf of their employer, it is important to think about ownership of the twitter account from which they tweet. A twitter account can be an important asset to a business or organization because the account (and the owner thereof) amasses followers who can become customers, fans and/or contributors. Those followers can also share the marketing and informative content your company or organization chooses to share with others by re-tweeting, liking or quoting your tweets, or by old-fashioned word-of-mouth. If they suddenly disappear, it may take significant time and effort to amass those followers again, and some you may never get back.

That is exactly what happened to a popular mobile phone company, PhoneDog Media. Noah Kravitz, created a twitter account on behalf of his employer, utilizing the handle @PhoneDog_Noah. From this account, he tweeted regularly regarding work and personal issues. Eventually he amassed over 17,000 followers over four years. At the time, PhoneDog did not have any policies in place that articulated whether Mr. Kravitz or PhoneDog owned the twitter account.

When Mr. Kravitz left his employment to join a competitor, he did not just abandon the twitter account and he did not provide the password to his successor at PhoneDog. Instead he simply changed his handle to @noahkravitz and continued using the account, maintaining his own personal and professional communications with his 17,000 followers.

In July 2010, PhoneDog filed suit against Kravitz, alleging misappropriation of trade secrets, interference with economic advantage and conversion. PhoneDog values its damages at $2.50 per follower per month (for eight months that Kravitz used the account for his own benefit), which amounts to $340,000.00 in damages. Regarding this value, PhoneDog has issued the following statement: “The costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media L.L.C. We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands.”

Kravitz tells a different story. He maintains that PhoneDog initially allowed him to maintain the account, asking him in exchange to tweet from time-to-time, and that he upheld his part of the bargain.

A U.S. District Court sitting in the Northern District of California has allowed Phone Dog’s claims, for the most part, to proceed on the merits. The Court recognized the twitter account at issue as a valuable property right. As this matter continues to be litigated it will be interesting to watch what value is ultimately placed on twitter followers, and who is ultimately granted ownership of the account. The case has potential implications for a number of employees who tweet on behalf of their employers, including newspapers and magazine writers who utilize their own likeness to amass readership via twitter.

In light of PhoneDog v. Kravitz, it may be time to look at whether your company or organization could benefit from a written policy with delineates who owns twitter handles and other social media accounts utilized by your employees to market your products or services.

AntiSec Hackers Strike Again

An article by Cynthia J. Larose of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding AntiSec Hackers was recently published in The National Law Review:

AntiSec – the hacker group that is the “merger” of Anonymous and Lulzsec – claims to have obtained the unique device identifiers (UDIDs) from 12 million Apple iPhone and iPad users by breaching an FBI computer, and have published more than 1 million of them.

Details of the hack can be found at ZdNet , Slate, and The Washington Post.According to the hackers, the alleged hack was intended to publicize the existence of some kind of secret FBI tracking project, also raising an embarrassing question of security for the FBI.

If you want to check whether your Apple UDID was in the compromised file, The NextWeb has developed a nifty quick check tool that you can see here.

Category: Internet

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