Google Maps Case Raises Section 230 Questions

Some courts have begun to question whether Congress could have anticipated the current scope of the Internet in 1996, when it immunized websites from liability for third party content regardless of whether the site makes any effort to monitor the content or ensure its accuracy.  Still, as discussed in FVLD’s recent Legal Update, courts have left the issue in the hands of Congress, leaving plaintiffs brave (or wealthy) enough to challenge Section 230 to seek workarounds.

One such recent lawsuit suggests that businesses concerned about their e-reputations may face problems other than Yelp reviews.  The plaintiff in Serbian Crown, Virginia, Inc. v. Google, Inc. blamed its restaurant’s closing on Google Maps users manipulating its listing, so that Serbs seeking specialties like lion and antelope meat believed the restaurant was closed weekends.  Although doubters may suggest that the restaurant failed because of its narrow niche or because unappetizing reviews prompted readers to venture elsewhere for emu, Serbian Crown had reportedly been in business for decades in an area with little foot traffic prior to the appearance of the erroneous Google Maps listing.  A Wired article about the lawsuit suggests that the allegations are consistent with numerous other instances of competitors sabotaging businesses’ Google Maps listings to gain an advantage.

Serbian Crown brought a negligence claim and a claim for false advertising under the federal Lanham Act.  It contended that Google uses its public listings as a “lead-in for purposes of selling advertising” to businesses, and that Google “knew or should have known” that allowing users to post false information regarding a restaurant’s hours “would pose a substantial danger of economic harm to” Serbian Crown.  Given that Yelp has survived allegations that it manipulated its ratings to reward advertisers at the expense of others, Google’s business motives are unlikely to affect the outcome for Section 230 purposes.

Predictably, Google filed a motion to dismiss the lawsuit, citing Section 230 with respect to the negligence claims and arguing that, among other things, Serbian Crown lacks standing to allege false advertising under the Lanham Act because Google was not Serbian Crown’s competitor.  Perhaps realizing that establishing negligence or even willful disregard by Google will likely not suffice under Section 230, Serbian Crown voluntarily dismissed its negligence claim.  Its response brief, however, correctly noted that the recent Supreme Court case, Lexmark International, Inc. v. Static Control Components, Inc., rejected Google’s argument that false advertising claims under the Lanham Act are only available to direct competitors.

Google’s reply brief apologizes for missing the Lexmark case but argues that Serbian Crown’s claim still must fail because it cannot show that the erroneous listing caused its damages, and because the listing is not actionable “commercial speech” under the federal Lanham Act since it did not advertise a product or service.  Google also argues that Section 230 bars the Lanham Act claim in addition to the negligence claim, although the court could ignore this argument since it was not raised in Google’s initial brief.  Section 230’s immunity does not extend to intellectual property claims, and the Lanham Act is an intellectual property (trademark) statute, but Google argues that Serbian Crown’s purported cause of action did not relate to intellectual property but rather deceptive advertising.

Although Serbian Crown still faces significant obstacles, especially establishing that the listing qualified as an advertisement, it will be interesting to see whether this court or others allow Lexmark to operate as a Section 230 workaround.  Until then, a business’s best option when it comes to Google Maps may be to simply claim its own listing, so that it can take control of the listed address, hours of operation, and so on.   A consultant for Serbian Crown (the owner did not own a computer and had never used Google) eventually tried this, but by that time it was allegedly too late, and the restaurant could not recover.

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New York’s Highest Court Strikes Anti-Cyberbullying Law

The New York Court of Appeals in People v. Marquan M. has struck down a local law that criminalized cyberbullying.  The court agreed with a high school student who had been charged under the law that the law was overbroad and therefore violated the First Amendment.  The student had been charged with cyberbullying after he created a Facebook page to anonymously post photos of his classmates with offensive and graphic sexual comments.

The Albany County law defined cyberbullying as “any act of communicating… by mechanical or electronic means… with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse … or otherwise inflict significant emotional harm on another person.”  Even though the court assumed that the “First Amendment permits the prohibition of cyberbullying directed at children,” the court found that the law was overbroad because it criminalized types of constitutionally protected speech that went far beyond the cyberbullying of children.   The court stated that the law, as written, criminalized “any act of communicating … with no legitimate … purpose … with the intent to harass [or] annoy … another person.”  The court observed that this could include telephone conversations, ham radio transmissions, or even telegrams.  The court further stated that the law could criminalize speech such as an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult. The court concluded that this would violate the First Amendment, which protects annoying and embarrassing speech.

Rather than holding all regulation of cyberbullying unconstitutional, the court found only that the specific Albany County law at issue was poorly written and overbroad.  According to the Cyberbullying Research Center, 20 states currently have cyberbullying laws, with others potentially in the works.  Illinois expanded its school bullying prevention law in 2010 to include communications made electronically (i.e., cyberbullying).  Effective June 26, 2014, the Illinois bullying prevention law also now includes a disclaimer that it is not intended to infringe upon First Amendment rights.  While Illinois’ cyberbullying statute is narrower in scope than the law struck down in Marquan M., another statute more generally regulating “harassment through electronic communications” of both children and adults prohibits, among other things “[m]aking any comment, request, suggestion, or proposal which is obscene with an intent to offend” or “harassing” someone under 13 years of age.  It remains to be seen whether other cyberbullying and e-harassment laws will withstand courts’ scrutiny.

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Google Removes Search Results After EU’s “Right to be Forgotten” Ruling

Google has started to remove individuals’ search results from its European websites due to the “right to be forgotten” ruling by the European Court of Justice (ECJ) last month. Within weeks of the ECJ’s ruling, Google has already received more than 41,000 requests to remove information through its online form.

On May 13, 2014, the ECJ held that an individual’s fundamental right to privacy includes the “right to the protection of personal data,” and the “right to be forgotten” in Google Spain v. González. In its opinion, the ECJ acknowledged Google, as a search engine operator, may have legitimate economic interests and that the general public may have an interest in finding information. The ECJ concluded, however, that such interests can be overridden by the right to privacy with respect to an individual’s personal data and the right to be forgotten.

The ECJ found that the right to be forgotten means that where search result information “appears … to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by [Google], the information and links concerned in the list of results must be erased.”

The ECJ ordered Google to comply with individuals’ requests for removal of links containing personal data by removing them from the search results of a Google search for the individual’s name. The ECJ further ruled that Google must remove the personal information even when including the information would otherwise be legal.

That being said, U.S. privacy law likely will not recognize a “right to be forgotten” any time soon. Moreover, Section 230 of the Communications Decency Act (CDA) generally provides immunity to computer service providers who publish information provided by others. Further, the First Amendment generally prohibits prior restraints of publication, and a U.S. plaintiff is unlikely to obtain an order requiring Google to remove truthful information.

It is worth noting that the CDA’s immunity does not extend to intellectual property claims.  Many states recognize a “right of publicity,” or a right to control the commercial use of one’s identity, which is sometimes classified as an intellectual property right. Some district courts have suggested that service providers should not be immunized by the CDA from claims alleging violations of the plaintiff’s right of publicity. Still, a publicity plaintiff would likely have trouble convincing a U.S. court that a Google result constitutes a commercial use of his or her identity or that publicity protections should trump the public interest in availability of information. We have previously written about one such plaintiff who unsuccessfully sued Yahoo! for trademark violations and later unsuccessfully sued Google for right of publicity violations because search results linked her name to male sexual enhancement medications.

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Court Rejects Porn Troll; Jury Still out on Troll Porn

A federal appellate court rebuffed an attempt by a “porno-trolling collective” to obtain identifying information regarding hundreds of individuals who may have downloaded copyrighted adult films. The plaintiff purchases copyrights in pornographic films and then issues subpoenas to internet service providers, seeking the identities of subscribers for the accounts reflecting infringing downloads. The court determined that the company had no basis to believe that those it subpoenaed resided in the judicial district where it filed its lawsuit. Apparently, some of the subpoenaed ISPs did not even offer services in the District of Columbia.

The court noted that the law firm behind the suit would generally seek to negotiate a settlement after identifying an alleged infringer, and “was highly successful because of statutory copyright damages, the potentially embarrassing subject matter, and the high cost of litigation.” If anyone sought to litigate rather than settle, the court explained, the firm would simply dismiss the case and move on to the next alleged infringer. The court’s description of the troll’s “modus operandi” is reminiscent of Righthaven – the company that made a business of purchasing copyright claims (but often not the actual copyrights) from newspapers and then suing bloggers who quoted from the copyrighted stories. Some defendants prevailed on “fair use” or other defenses, but many others likely settled to avoid legal fees, potentially without knowing their rights under the copyright laws and the First Amendment.

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“Parody” Websites Transferred in NAF Arbitration

A National Arbitration Forum arbitration panel ordered the “chicagasuntimes.com” domain name transferred to Sun-Times Media despite the registrant’s “parody” defense. See Sun-Times Media IP, LLC v. WUITAS, Inc. d/b/a ABILICOM / Manager Domain, FA 1525208 (Nat. Arb. Forum Nov. 24, 2013). The Sun-Times filed a “typosquatting” Complaint under ICANN’s Uniform Domain Name Dispute Resolution Policy but the registrant, WUITAS, Inc., argued that the domain name resolved to a protected “parody” of the Chicago Sun-Times newspaper, headed: “CHICAGA SUN-TIMES: Nuze, Sperts, Weetha, an’ Bitcharys translerated inta Chicaga Gangsta.” The site, however, included pop up advertising from “Ad Choices” and pay-per-click hyperlinks to third-party websites.

WUITAS explained that it had purposefully chosen the disputed domain name with the deliberate misspelling to comport with the “theme” of its website, which was to parody the Chicago Sun-Times website by translating it into Ebonics (called “Gangsta”) and that “Respondent famously maintains over 100 similar sites.” The NAF Panel, however, agreed with the Sun-Times that the “parody” was simply an infringing derivative work and:

“Whether that is done for parody or not (and whether or not that action could properly be described as parody) is . . . irrelevant since without Complainant’s permission it is not good faith behavior to mimic Complainant’s trademark, take copyright or other material originating with Complainant and translate it, and then offer that translated material at a revenue generating location.”

After the Sun-Times discovered two more typosquatting domain names, “chicagasuntimez.com” and “chicagosuntimez.com”, a new NAF panel found Respondent to be a “serial cybersquatter” and ordered transfer of those domain registrations as well. Sun-Times Media IP, LLC v. Manager Domain/WUITAS, Inc. d/b/a ABILICOM/PrivacyProtect.org , Claim Number: FA1402001542793 (Nat. Arb. Forum March 22, 2014). In the interests of full disclosure, Funkhouser Vegosen Liebman & Dunn Ltd. – the law firm behind Post or Perish – represented the Sun-Times.

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Courts .Gripe About Section 230 Immunity

Online review site Yelp recently continued its winning streak against businesses attempting to hold the site liable for allegedly defamatory content posted by users. Courts have consistently held that Yelp does not forfeit its right to immunity for third party content under Section 230 of the Communications Decency Act by choosing which reviews to display and which reviews to count in its “star rating” system. The latest such case, involving a negative review of a Washington locksmith, is Kimzey v. Yelp, which cited previous appellate cases and held that the star rating system “does not transform [Yelp] into a developer of the underlying misinformation.”

A Connecticut appellate court also recently dismissed a defamation claim against NBC under Section 230. The court in Vasquez v. Buhl held that a CNBC website was not liable for merely linking to allegedly defamatory content, even though the text of the link — to an article written by third party financial reporter Teri Buhl — “endorsed” the article by stating “I don’t want to steal Buhl’s thunder, so click on the report for the big reveal.” The court rejected plaintiff’s argument that NBC forfeited Section 230’s protection because Buhl did not “provide” the content to NBC but rather NBC found, linked to and endorsed it. Distinguishing recent opinions finding Section 230 inapplicable, the appellate court explained that NBC’s after the fact endorsement that did not “develop” the offending content:

The plaintiff has not alleged any actions, individually or in combination, from which to conclude that the defendant ‘‘materially contributed,’’ ‘‘prompted,’’ ‘‘specifically encouraged,’’ ‘‘apparently requested,’’ or ‘‘actively solicited’’ the defamatory statements in Buhl’s articles. Rather, the actions alleged by the plaintiff are fairly characterized by him to have ‘‘amplified,’’ ‘‘endorsed,’’ and ‘‘adopted’’ those statements.

The court, however, included a lengthy footnote discussing the potential for abuse of expansive Section 230 immunity and questioning whether “the main policy reasons underlying the original enactment of §230 remain relevant,” but concluded that its “hands are tied” until Congress amends the statute.

While no amendment appears to be on the horizon, custom domain names being issued by the Internet Corporation for Assigned Names and Numbers (ICANN) may further test Section 230’s scope. Sen. Jay Rockefeller recently wrote to ICANN to express concerns that the domain “dot-sucks” will be used to shake down companies to purchase “[companyname].sucks” domains to preempt defamatory gripe sites. Although Vasquez held that endorsing already existing third party content in the context of a hyperlink has no effect on Section 230 immunity, some courts have held that prompting or encouraging users to post unlawful content runs afoul of Section 230. Assuming custom domains like dot-sucks (or dot-gripe, another custom domain) are approved by ICANN, litigants may allege that the operators of such sites forfeit their Section 230 protection by soliciting defamation.

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Yelp Goes on Offense in Suit Against Law Firm

After some recent defensive victories that tested the limits of its immunity under the Communications Decency Act, the popular review site Yelp has gone on offense, suing a law firm for using its employees to post fake reviews on Yelp’s sites. 

The lawsuit alleges that Yelp checked court records to confirm that the posters were not clients of McMillan Law Group as they claimed.  Moreover, Yelp alleges that the posts were created from an IP address linked to the law firm and that, in addition to posting its own fake reviews, the firm “participated in a circle of San Diego lawyers who trade positive reviews.” 

One might then ask why Yelp targeted this particular law firm.  The firm suspects that the suit was in retaliation for its own recent victory in a small claims lawsuit against Yelp, which reportedly alleged that Yelp failed to deliver the results it promised when the firm agreed to purchase advertising.   The small claims court’s ruling was later vacated (days after Yelp sued the law firm) because the matter should have been arbitrated. 

Regardless of its motives, and even assuming its Terms of Service create an enforceable contract, or that Yelp has standing to allege unfair competition claims, Yelp may face an uphill battle establishing that it suffered damages as a result of the law firm’s alleged conduct. 

Although it is uncertain whether Yelp will continue this practice of suing posters suspected of abusing their account privileges, posters of false Yelp reviews also risk being sued for defamation.  A recent appellate court opinion from California in the case Sanders v. Walsh affirmed a judgment in favor of Cheryl Sanders, daughter of Barbara Sanders, a cancer patient who had returned a wig she bought from Walsh’s company, Wiggin Out Salons.  Continue reading

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Appellate Court Allows Google Street View Class Action to Proceed

A federal appellate court declined to dismiss a class action lawsuit against Google alleging that it violated the Federal Wiretap Act and similar state laws by collecting unencrypted Wi-Fi data while gathering images for Street View.

Between 2007 and 2010, Google’s Street View cars used sensors to record Wi-Fi networks’ activity in order to enhance its “location-based” services, but also picked up personal data transmitted over unencrypted networks, including emails and passwords.  Google later issued an apology.

The appellate court in Joffe v. Google, Inc., however, agreed with the lower court that Google’s defenses applied to radio communications – meaning auditory broadcasts – and not to data transmitted over a Wi-Fi network.  Further, the intercepted data was not “readily accessible to the general public” as required to be exempt under the Act.

Although class members might have trouble quantifying damages suffered as a result of Google’s Street View-ing, the Wiretap Act allows for statutory damages, which could stack up considering the number of people affected.  The appellate court’s opinion – and the settlement that it may bring about – is likely to embolden potential plaintiffs to pursue claims based on novel privacy issues that do not fit neatly into boxes created by pre-Internet laws.

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State AGs Seek to Limit Online Immunity

Citing concerns about sex trafficking, Attorneys General from 47 states (all minus Virginia, Wisconsin, and Connecticut) have signed a letter asking Congress to amend Section 230 of the Communications Decency Act, which immunizes websites from liability for content posted by third parties.  Attempts to hold websites like craigslist liable for hosting solicitations for prostitution have previously failed under Section 230 (although craigslist eventually voluntarily took down its Adult Services section).

While Section 230 currently exempts certain federal laws from its immunity, the proposed amendment would provide that Section 230 “shall not be construed to impair the enforcement of . . . any . .  . Federal or State criminal statute.”   Since service providers cannot customize their content to each state in which someone might access the Internet, this could essentially make the laws of the most restrictive state the law of the land.  This is not to mention the sheer number of state laws out there.

Moreover, the proposed amendment is not limited to state laws regarding sex trafficking.  Many states, for example, have laws on the books criminalizing libel (although they are rarely enforced).  Anyone who has read an anonymous reader comment thread can imagine the implications if news outlets were liable for every defamatory comment posted by a third party.  Contrary to current law, review sites like Yelp could be responsible for verifying the accuracy of reviewers’ critical statements.       Continue reading

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Feds Struggle to Define Journalism

The Electronic Frontier Foundation (EFF) notes that the Department of Justice’s recent guidelines for investigations involving the news media may signal a trend towards limiting protections afforded to journalists to exclude many bloggers.

The DOJ’s Domestic Investigation and Operations Guide limits the instances in which the Department will issue search warrants or subpoenas to journalists.  The guidelines, however, exclude those who merely “post information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace” unless they otherwise fit the definition of “news media.”

Although MySpace users are honored to even get a mention, other social media users have expressed concern.  The definition goes on to exclude “persons and entities that simply make information available” as opposed to one who “gathers information of potential interest to a segment of the general public, uses editorial skills to turn raw materials into a distinct work, and distributes that work to an audience, as a journalism professional.”  It further notes that “businesses, law firms, and trade associations offer newsletters or have websites; these are not considered news media.”

The EFF compares the guidelines with recent federal shield bills that limit coverage to persons “regularly” engaging in journalism for “financial gain and livelihood.”  Continue reading

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Two Setbacks for Online Review Victims

Faced with a unjustifiably hostile online review, the first impulse of many small businesses is to sue either the author or the website for defamation or some similar tort.  Two recent court decisions, however, demonstrate just how difficult it may be to recover against either class of defendant.

In Brompton Building, LLC v. Yelp!, Inc., an Illinois property manager subpoenaed Yelp to determine the identity of the author of a review under the name “Diana Z.”  Diana’s review claimed, among other things, that the manager was not responsive to maintenance requests and “illegally charge[s] tenants late fees for their rent” and concluded with the observation that, after her interactions with the landlord, “contracting herpes doesn’t seem as horrible.”    Continue reading

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Instagram Reverses Revised Privacy Policy; Court Sides With Twitpic Photog

The Chicago Sun-Times explains Instagram’s recent revisions to its privacy policy, which the popular photo-sharing service scaled back after last month’s changes led to user backlash, prominently featuring Kim Kardashian and her loyal followers.  After Instagram was acquired by Facebook, it changed its policy to allow Instagram or its advertisers to display users’ content and information without consent or compensation.  In the wake of complaints, the current policy reads, in relevant part:

We may share User Content and your information (including but not limited to, information from cookies, log files, device identifiers, location data, and usage data) with businesses that are legally part of the same group of companies that Instagram is part of, or that become part of that group (“Affiliates”). Affiliates may use this information to help provide, understand, and improve the Service (including by providing analytics) and Affiliates’ own services (including by providing you with better and more relevant experiences). But these Affiliates will honor the choices you make about who can see your photos. Continue reading

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Court Orders Customer to Stop Yelping

A Virginia judge has issued an injunction ordering a woman to stop posting critical reviews on websites Yelp and Angie’s List regarding a contractor’s work on her home.

The customer, Jane Perez, allegedly failed to pay the company, Dietz Development, LLC, for the work it performed and demanded that the company perform additional work for free.  When the company declined to do so, she posted that they had damaged her house, stolen her jewelry, performed shoddy work, and falsified her bills, among other accusations, and stated that she had prevailed in defending a lawsuit by the company.  The court reportedly required her to delete posts regarding the jewelry theft and lawsuit and prohibited her from repeating them.

The plaintiffs argued that their odds of prevailing in their defamation suit were strong, and that they would be irreparably harmed without the injunction.  In non-speech cases, such findings might suffice to justify an injunction against conduct but the First Amendment bars prohibitions on future speech – or “prior restraints” – absent extraordinary circumstances, e.g., imminent threats to national security (if leaking of the Pentagon Papers did not justify a court-ordered prior restraint it is difficult to argue that a Yelp review would qualify).  The accepted remedy is to sue for monetary damages after the fact rather than employ courts as censors.   Continue reading

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Texting’s 20th Birthday: Time to Update your Company’s Policies?

When Canadian engineer Neil Papworth sent the first text message 20 years ago, he had no way of knowing that texting would evolve into one of the world’s most prominent means of communication.  He also had no way of knowing that it would become a major cause of automobile accidents.  FVLD Members Damon Dunn and Jon Vegosen have written extensively for Bloomberg Law Reports and other publications about companies’ liability risks when their employees text and drive.  State legislators continue to propose bills to enact or strengthen legislation to punish texting while driving.

Employers should consider celebrating the birthday of the text message by revisiting their policies and practices on texting while driving.

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NLRB: Nice Companies Finish Last

The National Labor Relations Board (NLRB) has decided that a policy encouraging employees of an Illinois BMW dealership to be courteous to one another violated the National Labor Relations Act (NLRA).  The NLRA prohibits punishing employees for discussing working conditions and, according to the NLRB, the policy did not make clear enough that it did not cover such discussions.

An employee of Karl Knauz Motors who was fired for a Facebook post challenged the handbook rule, which stated that “Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite, and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the dealership.”

The NLRB’s primary objection was to the last sentence prohibiting language that would injure the dealership’s reputation.

A reasonable employee who wishes to avoid discipline or discharge will surely pay careful attention and exercise caution when he is told what lines he may not safely cross at work . . . Reasonable employees would believe that even “courteous, polite, and friendly” expressions of disagreement with the Respondent’s employment practices or terms and conditions of employment risk being deemed “disrespectful” or damaging to the Respondent’s image or reputation.

Continue reading

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