Communications Decency Act

5.  Using Images Without Permission is No Monkey Business

From the Wikimedia Commons website

This was one of the more interesting stories of the year – does the photographer who set up everything to allow for a monkey to take a selfie own the copyright to that selfie?  This year we learned that no, the photographer does not.

 

 

 

4.  Infographic: The Use of Images From The Web on Your Site, Newspaper or Broadcast – Enough Said:

3.  The Law on Unpaid Interns – This post makes the list almost every year because I repost the guest post by Michael Kelsheimer of the Texas Employer Handbook every year as tech start-ups look to hire unpaid interns.  It’s a little more complicated than you may think.

2. #SMH-butnotacontestorasweepstakes – Check your online promotion hashtag or face scrutiny from the FTC – This post covered the surprise investigation of the Wandering Sole contest by Cole Haan.  The FTC basically said if you are going to have customers “endorse” your products by and through a contest, you better make sure the connection between the endorsement and contest is disclosed.  The legality of online contests is a popular topic with an older post Is Your Online Sweepstakes or Contest Legal still remaining popular.

1.  When Online Behavior Crosses the Line – The Law on Threats, Libel and Just Being Rude – Online defamation and related topics continue to be popular.  In fact, this post from 2012, remains one of the most popular on the site, How to Identify the Anonymous Online Defamer.  My suspicion is that SEO on these topics leads to more page views.  Nevertheless, it continues to be a very important issue for individuals and businesses and will likely continue in 2015.

 

A Houston area woman has sued Facebook asking for $123 million because Facebook was slow to take down a fake a profile created by her ex-boyfriend with pornographic images.

You can see the story here

http://www.youtube.com/watch?v=GvJzYGu548o

 

The plaintiff sued Facebook and the ex-boyfriend for negligence, breach of contract, gross negligence, intentional infliction of emotional distress, invasion of privacy and defamation.  The request for $123 million is based on $.10 for every Facebook user.  You can read the amended petition here–Ali v. Facebook petition.

My guess is this case will likely be removed to federal court (both defendants are out of state) and then summarily dismissed as to Facebook.  As regular readers should know by now, website operators like Facebook are not liable for the content created by others under the Section 230 of the Communications Decency Act.  It provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This federal law preempts any state laws to the contrary: “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

Although sympathetic to the plight of the plaintiff, Section 230 unquestionably (and may result in sanctions against the plaintiff) immunizes Facebook from the negligence, invasion of privacy, intentional infliction of emotional distress and defamation claims.

It appears the plaintiff is heavily relying upon the fact it took Facebook a long time to take the fake profile down.  Facebook’s community guidelines do prohibit fake profiles. Facebook says it will take down posts and profiles in violation of the guidelines, but it never contractually commits to the users it will quickly police the site.  In fact, Facebook expressly says it will not guarantee an expedient removal stating:

If you see something on Facebook that you believe violates our terms, you should report it to us. Please keep in mind that reporting a piece of content does not guarantee that it will be removed from the site.

It is therefore questionable whether there is any contractual obligation on Facebook to take down offensive or fake profiles.  Regardless, most courts do not allow plaintiffs to artfully plead around the Communications Decency Act and have poured out similar breach of contract claims.

We will keep an eye on this case.  You can listen to my interview with KRLD Radio in Dallas about the case here. facebook lawsuit with Mitch Carr – KRLD

 

 

Last month, the Sixth Circuit ruled that website operators are not liable for content provided by others (User Generated Content or UGC) because of Section 230 immunity under the Communications Decency Act in the Jones v. Dirty World Entertainment decision.

Based on the history of the CDA, that should be no surprise. However, internet lawyers were watching this case closely because a federal judge let a defamation case go to trial and this could have created a hole in the CDA defense.  Alas, the court of appeals ruled the way most experts expected and the world can return to normal.

We posted about the trial court’s decision before.  Last summer, a jury found TheDirty.com “encouraged the development of what is offensive” and was therefore liable for the defamatory posts about former Cincinnati Bengals cheerleader Sarah Jones. The jury awarded Jones $38,000 in actual damages and $300,000 in punitive damages.

As a refresher, Section 230 of the CDA provides: ”[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Because the websites are not the publisher or speaker, the sites can’t be liable for defamation. Most courts immediately dismiss website operators from defamation suits when the claim is based on UGC.

Jones sued Dirty World Entertainment Recordings which owns TheDirty.com. The site, as expected, immediately filed a motion to dismiss the complaint because the claims were based primarily on the UGC. The trial judge denied the motion arguing the defendant purposefully seeks out and encourages defamatory content. The court wrote “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” shows that the site “specifically encouraged development of what is offensive about the content.”

The court of appeals said the trial court erred when it held The Dirty was the “creator” or “developer” of the offensive content and when the trial court allowed a “encouragement test” that would cause a website to lose the CDA immunity.

The Sixth Circuit instead implemented the more accepted material contribution test requiring evidence the website operator was “responsible, in whole or in part, for the creation or development” of the defamatory content.  Based on this test, the appellate court found the website did not “author” the statements, pay for the content and did not require defamatory content to use the site.  The court also confirmed there was no liability for selecting the content or refusing to edit the content.

What does it mean?

The CDA has been a very effective tool for website operators.  Imagine if Facebook or YouTube could be sued for defamation.  Those sites would not exist.  With the good, comes the like of The Dirty.  There is an old saying that “bad facts make bad law.”  That almost happened in this case. TheDirty.com asks people to “submit dirt.” The submission form has entries for the “dirt,” and provides a link to upload photographs.  More reputable websites, don’t have this feature.  But, if The Dirty is protected, then you should have no worries that your more mainstream site will also be protected.  If there is going to be any changes to allow for liability for those who “encourage” defamation, the change will have to come from the state house and not the court house.

 

With the short Thanksgiving week, I thought we would touch on a few interesting stories developing over the last couple of weeks.

Photographer gets $1 million+ verdict from AFP and Getty for copied Twitpics

In my three part series on using images from the web for your news stories, we talked about the Morel v. Agence France-Press case.  Agence France-Press, the Washington Post and Getty used images of the Haitian earthquake put on Twitter by photographer Daniel Morel.  The Washington Post settled, but the case went to trial last week against AFP and Getty.  AFP thought they had permission from the photographer to use the images, but they did not get permission from the right person.

Previously, a judge rejected AFP’s argument that it could use the images because they were put up on Twitter. The Twitter terms of service did not provide that the photographer gave his rights in the images away or grant anyone else the right to use the images outside of Twitter.  In the trial, it turns out AFP did not follow their internal guidelines on the use of images or take immediate corrective action.  The jury awarded the upper end of the statutory damages.

If you have policies, follow them.  If you make a mistake, you fix it as quick as you can. You can read about the case here and here.

Engineering gift for girls’ video spreads on Facebook – lawsuit follows.

I have a daughter.  I liked this commercial.

http://www.youtube.com/watch?v=UFpe3Up9T_g

I assumed they had the Beastie Boys’ permission.  Apparently, they did not and the Beastie Boys sent a copyright cease and desist letter.  The people at Goldiebox fought back and filed a suit asking the court to declare the parties’ rights.   Is it a parody or do the Beastie Boys have to do this to make sure more people don’t use their songs in commercials?  You can read more about the case here with some legal analysis from the EFF here.  At least Goldiebox will get some more attention with the lawsuit at the beginning of the holiday shopping season.

Want to criticize me, it will cost you!

KlearGear’s terms of service state:

“In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.”

A Utah couple criticized KlearGear on RipOff Report.  Soon thereafter, KlearGear sent the couple a bill for $3,500.  KlearGear never sued, but did report the couple as delinquent to the credit reporting agencies.  We have talked about being proactive, but not too proactive, when it comes to online complaints.  Since the news of this broke, KlearGear has shut down its Facebook page and its Twitter feed to hide from the blow back.  You can read more here, here and here.  This is not the kind of press you want before the shopping season.

Update 11/27/13 –  a lawyer is now representing the couple and has sent a demand to KlearGear to remove the notation with the credit agencies or face a Fair Credit Reporting Act lawsuit.  Read about it here.

Reputable companies line up to support TheDirty.com

Finally, we update you on the Jones v. TheDirty case we have talked about before.  This is the suit by a former Cincinnati Bengals cheerleader against the website TheDirty.   A Kentucky judge allowed the case to proceed against the rumor and trash site despite Section 230 of the Communications Decency Act which normally provides immunity for website operators based on user generated content.  The jury awarded $380,000 and TheDirty.com appealed.

While some may believe the ends justified the means against this particular defendant, the refusal to dismiss this case flies in the face of almost every other Section 230 case.  In this case, the court wrote “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” shows that the site “specifically encouraged development of what is offensive about the content.”  TheDirty.com asks people to “submit dirt.” Their submission form has entries for the “dirt,” and provides a link to upload photographs. The court seized on the fact that in response to the post about Jones, the site operator wrote “I love how the Dirty Army has a war mentality.”  Thus, no dismissal by the judge.

Section 230 has its place.  Imagine if Facebook, Google, or YouTube could be sued or had to police all of the user generated content.  I don’t think those services would exist.  That’s why many of them have filed amicus briefs with the Sixth Court of Appeals urging the court to reverse the ruling and dismiss the claims.  You can read more here about how and why the likes of Amazon, Google, LinkedIn, Google and Microsoft are asking for the reversal.

 

Everyone supports the prevention of sexual predators texting illicit material to people under 17.  Everyone knows that revenge porn is a scourge on public decency.  But, can the law do anything about it?  Should it?

Texas Throws Out Law Banning Explicit Online Communications With Minors.

Yesterday, the Texas Court of Criminal Appeals (our highest court that hears criminal cases) reversed the conviction of a 53-year-old man who was charged with the third degree felony of communicating in a sexually explicit manner with a person whom he believed to be a minor with an intent to arouse or gratify his sexual desire.  You can read about the case here and read the court’s decision here.

The overturned law, Texas Penal Code 33.021(b)(1) states:

A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

To be clear, you cannot solicit a minor for sex (conduct), but sending indecent, but not obscene materials (protected speech) is not illegal.  The court said criminal laws “may protect children from suspected sexual predators before they ever express any intent to commit illegal sexual acts, but it prohibits the dissemination of a vast array of constitutionally protected speech and materials.”  The court also noted there are several other statutes that criminalize other inappropriate conduct with minors.

For the constitutional lawyers out there, the court determined the  “sexually explicit communications” provision is facially unconstitutional because it is content-based speech regulation that could not withstand the strict scrutiny analysis.  Under that test, there needs to be a compelling state interest and the restriction on speech must be narrowly tailored.

While there is a compelling state interest to protect minors from sexual predators, the law covers merely indecent speech which is constitutionally protected.  In light of the many other laws that protect children (solicitation, child pornography, obscenity, harassment), the court said the restriction was too broad.

Subsection (b) covers a whole cornucopia of “titillating talk” or “dirty talk.” But it also includes sexually explicit literature such as “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cressida.” It includes sexually explicit television shows, movies, and performances such as “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl, and Miley Cyrus’s “twerking”* during the 2013 MTV Video Music Awards. It includes sexually explicit art such as “The Rape of the Sabine Women,” “Venus De Milo,” “the Naked Maja,” or Japanese Shunga. Communications and materials that, in some manner, “relate to” sexual conduct comprise much of the art, literature, and entertainment of the world from the time of the Greek myths extolling Zeus’s sexual prowess, through the ribald plays of the Renaissance, to today’s Hollywood movies and cable TV shows.

*I will leave it for someone else to determine whether this is the first reference to “twerking” to make it into case law — a sign that the fad needs to go.

The prosecutors say they may appeal to the U.S. Supreme Court.

Revenge Porn – a perplexing topic for legislators

The American Bar Association recently wrote an excellent article on revenge porn you can read here.  For the uninitiated, revenge porn is when the ex publishes what were supposed to be private nude pictures for the world to see often including full names, addresses, phone numbers and links to social media profiles.  There is a whole cottage industry bubbling up of websites who encourage posters to provide this information.

As a victim, you can bring civil claims like invasion of privacy, intentional infliction of emotional distress and copyright claims if you took a selfie because the copyright usually belongs to the photographer and not the subject.  But, these claims are expensive to bring and there are no guaranties because a lot of people blame the victim for having nude pictures in the first place.

Meanwhile, it is hard to sue the websites where these pictures are downloaded because Section 230 of the Communications Decency Act gives immunity to websites based on claims related to user generated content.

California passed a law last month that seeks to punish “Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.

Professor Goldman on his Technology and Marketing Law Blog points out the faults of the law which include: (i) it does not apply to selfies; (ii) it does not apply to redistribution or websites which could have Section 230 issues; and (iii) the difficulty in proving beyond a reasonable doubt the parties’ expectations of privacy or the intent of the accused.

While having the intent to cause severe emotional distress may avoid First Amendment scrutiny, over broad laws would cover the publishing of Anthony Weiner’s infamous photos. Here is a Wired article by Sarah Jeong arguing that criminal laws may not be the answer.

While there are some class action lawsuits against some of the sites that encourage this behavior that we will keep an eye on, one of the best weapons may be to shine the light on the scum who engage in revenge porn using the same social media tools and the let the markets take care of the websites.

UPDATE – NOVEMBER 1 – Ask a question and the Internet answers.  Professor Goldman directed me to one of his earlier tweets:

 

TheDirty.com is not exactly deserving of sympathy.  Much like Playboy and Hustler pushed the boundaries of the First Amendment in the past, rumor sites like TheDirty.com are pushing the limits of Section 230 immunity for online defamation under the Communications Decency Act.

A judge and jury in Kentucky apparently have had enough.  This week, a jury found TheDirty.com “encouraged the development of what is offensive” and was therefore liable for the defamatory posts about former Cincinnati Bengals cheerleader Sarah Jones. The jury awarded Jones $38,000 in actual damages and $300,000 in punitive damages.

As a refresher, Section 230 of the CDA provides:  “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  Because the websites are not the publisher or speaker, the sites can’t be liable for defamation.  Most courts immediately dismiss website operators from defamation suits when the claim is based on user generated content known as UGC.

Although subjects of defamatory posts hate the CDA, the law is good.  There would be no Google, YouTube, Twitter of Facebook if these sites had to defend, let alone be held liable for, each defamatory post by their users.

Jones sued Dirty World Entertainment Recordings which owns TheDirty.com.  The site, as expected, immediately filed a motion to dismiss the complaint because all claims were based on the UGC.   The trial judge denied the motion arguing the defendant purposefully seeks out and encourages defamatory content.   The court wrote “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” shows that the site “specifically encouraged development of what is offensive about the content.”  Therefore, the summary judgment was denied.  With TheDirty.com as a defendant, it is not surprising the jury ruled in favor of Jones.

If you have had the unfortunate reason to visit TheDirty.com, you know the judge is correct in that they do everything they can to encourage defamatory and offensive content. I have argued before that the CDA should be amended to allow for claims against sites like this that encourage defamation.  I always thought the change would come through the legislative process rather than judicial fiat.  Not surprisingly, TheDirty.com is appealing. You can read more about the case here.

What does it mean?

If you run Facebook, the local newspaper site, or a community site regarding butterflies, you still have nothing to worry about.  If you purposefully run an inflammatory site, you need to pay attention to what the court of appeals does with this case.

TheDirty.com asks people to “submit dirt.”  Their submission form has entries for the “dirt,” and provides a link to upload photographs.  The court seized on the fact that in response to the post about Jones, the site operator wrote “I love how the Dirty Army has a war mentality.”  Facebook and the Christian Science Monitor website don’t do this.

The CDA is usually a slam dunk defense for websites that are sued over UGC.  Plaintiffs first tried to argue the sites actually “created” the content.  Now, plaintiffs will argue the sites are “encouraging” the defamation.  While a good policy, I am not sure it will hold up on appeal without a change to the statute by Congress.

So, what about sites like RipOffReport and PissedConsumer.com?  Is the next line of attack that they “encourage” defamatory content?  I would not be surprised if a plaintiff is making that argument right now in response to a motion to dismiss.

We will keep our eye on the appeal.

The general legal advice to website operators who allowed User Generated Content (UGC) in the form of comments, videos or pictures used to be relatively easy.  The Digital Millennium Copyright Act protected you from copyright and Section 230 of the Communication Decency Act protected you from defamation and other liability.  Recent developments are bringing a little more grey into what was previously a black and white world.  Good news for lawyers; bad news for business.

The DMCA

The DMCA provides web hosts and internet service providers a “safe harbor” from copyright infringement claims resulting from content provided from others if certain procedures are followed. If the safe harbor qualifications are met, only the customer or user can be liable and not the actual website operator.

To qualify for the safe harbor protection, the site must: (1) notify the customers of its policy; (2) follow proper notice and take down procedures; (3) designate a copyright agent with the U.S. Copyright Office; (4) not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network.

For a new web-based start-up that is going to have UGC, taking advantage of the DMCA is a no brainer.

Was that Sly and the Family Stone in the Background?

A recent decision against music-sharing website Grooveshark suggests that sound recordings prior to 1972 may not be covered by DMCA safe harbor protections.  Universal Music Group sued Grooveshark in New York state court for copyright infringement.  The trigger legal response is that the DMCA means Grooveshark is immune.

Easy, case dismissed.  Then, the New York appellate court reversed the dismissal late last month.  The legal issue hinges on whether the DMCA provides for a “safe harbor” for sound recordings before 1972 because these recordings are governed by state law and not U.S. copyright law or the DMCA.

If you want the legal details which focus on the definition of copyright, you can read this post from Professor Goldman’s Technology and Marketing Law Blog.  The simple answer is the DMCA needs to be fixed by Congress.  This recent decision directly conflicts with another prior decision so it is likely there will be further appeals that may take several years to resolve absent Congressional action.

What you need to know if you have a website with UGC sound recordings is that you may have a problem.  Is it feasible for you to determine whether the uploaded sound recording is Isaac Hayes’ Theme from Shaft (1971) . . .

Marvin Gayes’ Let’s Get it On (1973) . . .

or Don McLean’s American Pie which was recorded in 1971, but became a hit in 1972?

http://www.youtube.com/watch?v=Y0Y_XRiJsCI

If you start pre-screening for pre-1972 sound recordings do you now have knowledge that the material or activity is infringing or of the fact that the infringing material exists on your network taking you outside of the DMCA safe harbor?

The good news is this case appears to be the outlier.  As long as you know and are willing to accept the risks, you probably do not need to make any wholesale changes.  You have the recent pro-DMCA case in Viacom vs. YouTube, a federal New York decision and a Ninth Circuit Court of Appeals decision that reaches the exact opposite result.

At least I don’t have to worry about defamatory UGC because of Section 230, right?

Section 230 of the Communications Decency Act provides immunity to websites for defamation and related claims based UGC.  It states:

no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

This is the law that prevents Facebook from being sued relentlessly for alleged defamatory posts and also allows sites like RipOff Report and The Dirty to survive.  Based on Section 230, we generally advise sites not to worry about liability for anonymous commenters – at least for now.

The United Kingdom recently passed the Defamation Act 2013 which sets up a notice and take down process for website operators to protect themselves from UGC defamation claims in the UK.  Basically, a plaintiff cannot sue unless the plaintiff sends notice to the website and the website refuses to take it down.

Although ripe for abuse, it does not sound too bad until you get to the part of the law that says websites can only take advantage of this protection if the plaintiff can identify the person who actually posted the offending content forcing websites to authenticate its members.  There goes anonymity.  You can read more details on the law here.

It does restrict “libel tourism” so the local pizza shop in Sugar Land can’t take advantage of this against Yelp for the review by the interloper in New Territory.  But, if the offended person can convince a court in the UK the case should be there, you could be subject to a UK judgment.

So, should you require authentication of all users?  Can you set up your site so that all users from the UK have to authenticate their identities?

The answers are no longer so easy.  For example, what do you do if a UK citizen slanders Roberta Flack on your American-based website while uploading a copy of The First Time Ever I Saw Your Face which was originally a 1957 folk song but recorded by Flack originally in 1969, but re-released in 1972 when it became a number one hit?

It could make your head spin, but that’s why lawyers make the big bucks, right?

 

After looking at the most popular posts from 2012 in our last edition, today we look at what are likely going to be the big trends for 2013 in internet and marketing law.  

Privacy and COPPA – Although this issue is not likely to dominate the general business population, privacy and COPPA will continue to dominate the media’s coverage of internet law issues — just look at Instagram’s latest dustup.  Right before the new year, the FTC officially passed their COPPA regulations.  Although the changes have been in the works for almost a year, it will take a while for companies covered by the Children’s Online Privacy Protection Act – generally websites targeted or directed to users under 13 – to comply.  Surprisingly, respected folks like Nickelodeon have had COPPA issues and the FTC is watching the mobile app industry

Cyber-Security – An issue likely to catch people off guard is cyber security legislation that may be written broad enough to cover more than just the major telecoms.  Last year, efforts like the Cyber Intelligence Sharing and Protection Act (CISPA) and the Cybersecurity Act of 2012 failed to become law.  Both the CSA and CISPA drew critics mainly related to personal privacy.  The President may simply act by executive order.  The business question remains how broad will any laws be, what sites and service providers will have to comply, what will that mean and how much will that cost?  For more, David Gewirtz outlines the 14 Global Cybersecurity Challenges for 2013 on ZDNet.

Software and Tech Patent Reform – Whenever a programmer finds out I am a lawyer, I instantly get a tirade about our broken patent system.  I’m guessing Apple, Samsung and Motorola would agree.  In the well-covered battles,, the only winners appear to be the lawyers.  Although I don’t practice patent law (it is not a field where one dabbles, so I leave that to my colleague David Henry), I have a hard time deciphering what was to be learned from those expensive battles and what developers should do.   Maybe there is some hope for sensible patent reform

Amending the Communications Decency Act – The CDA is the law that prevents people from suing the likes of Yelp and RipOff Report for reviews generated by users.  It certainly makes sense not to allow lawsuits against Facebook and Google for defamation from other people’s content which would cripple those services.  But online defamation remains a hot issue and more people are fighting back.  I’m not sure if there will be any changes as the law is applied to consumer review sites, but what about loosening the law as it applies to sites whose whole sole purpose is to slander and then extort?  Sites that call people whores with photos and run SEO’ed pure gossip sites of private individuals, but then offer “reputational protection” services for a fee to remove the materials.  I purposefully don’t mention names or link to them so you won’t go check them out.  Instead, if you are interested, go to a good advocacy group like CiviliNation.   

The New Advertising Model – The FTC may push harder on Do Not Track legislation that could interrupt behavioral or targeting online advertising this year.  Facebook and everyone else is still trying to figure out mobile marketing.  I waxed philosophically at the end of last year about where advertising and user generated content may be going.  (Are the YouTube commercials you can’t escape getting longer and do I want to wait to see a 30 second video I am already skeptical about?)  Kirk Cheyfitz of PandoDaily says the best online ads of 2012 were not sctually ads.  There are bright minds trying to figure this out and I expect by the end of the year, we will talking about one of them and a new product, service or idea we haven’t heard of before.

The State of Texas may find out and it may be more applicable to your site than you think.  In early filing for the 2013 legislative session, Democratic state Senator Leticia Van de Putte proposed a bill aimed at stopping at stopping human trafficking.  The entire text is here.

It allows for human trafficking victims to bring civil suits against the wrongdoers including websites, that allow advertisements promoting the compelled sex trade.  Specifically, it states a website can be liable if it:

publishes an advertisement that the [website] knows or reasonably should know constitutes promotion of  prostitution or aggravated prostitution and the publication of the advertisement results in compelling prostitution with respect to the victim. 

The Bill and Section 230

I’ll parse through the language below, but first I want to discuss how this law may interact with Section 230 of the Communications Decency Act.  Section 230 provides the operators of websites with immunity from any suits caused by the content created by others.  It states:

no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

It usually shields sites from defamation claims, but it has been applied to almost all claims that stem from the content  created by others.

So what happens if a website simply allows anyone to create ads, specifically adult services ads without having any say as to the content?  Would the CDA trump this Texas proposal?  Online adult listing companies have already prevailed on several related suits in MissouriWashington and Illinois.  If Texas passes the law, it is likely to legislate its way into a lawsuit. 

Numerous local and state officials have attempted to crack down on at least one known adult-listing service without much success.  The passage of the law in Texas could be a symbolic statement increasing the fervor for Congress to make changes to the CDA.  The CDA already expressly excludes liability for federal criminal laws including child pornography.  Thus, Congress could carve out a similar exemption as it relates to human trafficking.

The Language of the Texas Bill 

If the proposed law were to survive CDA and other challenges, it could present some interesting trial issues.  First, you have to parse through the definitions.  “Promotion of prostitution” is essentially pimping for one person.  “Aggravated promotion of prostitution” is running a pimping enterprise of more than one prostitute.  So, to be liable, the media company would have to know, or reasonably show know, that the advertisement is for promotion of prostitution (i.e., pimping). 

A successful plaintiff would not have to show, however, that the website operator knew the pimp was engaging in “compelling prostitution.”  Compelled prostitution means that through force or threat of force, you force someone to commit prostitution or cause a minor to commit prostitution–the human trafficking aspect.

While crass, the law essentially means that an advertisement for a “reputable pimp” who does not engage in “compelling prostitution” would be OK.  But, if you think that the advertising pimp is “reputable” and they turn out not to be because they force people or use minors, the website would be in trouble. 

Also interesting is that if you are the actual prostitute and you advertise, then the media company cannot be held liable because you are not engaging in “promotion of prostitution.”   

How would this apply to my site?

You may be thinking that I don’t run an adult classified listing site, so while interesting, I don’t care.  If you run any interactive site that allows for user generated content or messages, you may want to think again.  Under this provision, “advertisement” is defined to include communications that promote a commercial service on websites “operated for a commercial purpose.”  Read broadly, that could apply to every website that makes any money regardless of whether you accept classified listings or allow users to advertise, as we normally think of the term, on your site.  In other words, the “advertisement” that creates liability, could be a comment a user posted on your blog that makes some money.

So, if a pimp takes to Facebook and posts a free message promoting human trafficking, could Facebook be held liable?  Their liability would all come down to what did Facebook know or should it have known?

Human trafficking is a serious issue.  According to reports, adult classified that may involve adult trafficking is also serious business.  Without action from Congress, any efforts by Texas or other states to crack down on online advertising is likely to lead straight to the courthouse.

In my last three posts, we covered online defamation from the business owner’s perspective.  Today, we look at it from the consumer’s perspective.

The local NBC affiliate in Houston interviewed me and others for a story about it you can watch here.

 

 

The way the story was edited, it almost appeared I support suing consumers when “sounding off crosses the line when it goes beyond personal and turns factual.”  It really should be that when it goes beyond opinion and you state facts that are not true, you can get sued. 

An example I used in the interview not aired was if you said I was a lousy lawyer, I couldn’t sue you for that opinion.  But, if you said I stole your money or was even a fraudster or a criminal (things that can be proven), I might have a claim.

It’s almost a Hobson’s Choice for the consumer.  From my own personal experience, I prefer reviews that state why the customer was not pleased.  I want to know why you think they are horrible with specifics which is a way you can cross the line and get in trouble if you stretch the truth.  

And this goes without saying, it is certainly a bad idea to write a fake review about your competitor.

Finally, it’s not all bad for consumers.  As discussed in my series and in this post, Texas’ version of the anti-SLAPP should act as a deterrent to any companies who overstep their bounds by wrongfully suing a  consumer over a review.

It was interesting to be juxtaposed with Ed Magedson of RipOff Report when at the end we basically agreed that if you simply state your opinion, you should be safe. 

If this was a point-counterpoint, I might respond to Mr. Magedson that although I am as big a fan of the First Amendment as the next guy, RipOff Report is no saint and hasn’t won all of its cases on pure First Amendment grounds.  Instead, RipOff Report thrives because of Section 230 of the Communications Decency Act which prevents you from suing the website operator for the content posted there by others.  The merits of that immunity can be debated another day.