around the bar
May 5, 2010

Challenge Online Comments at Your Own Risk

When it comes to defamation suits about online comments, no one wins, according to Laurence Wilson, general counsel of the San Francisco-based Yelp!

Wilson told a panel, “Astroturfing, Take-Downs and Anonymous Commentary: Protecting (and Enhancing) Reputation,” during the _ Business Law Section 2010 Spring Meeting that defending against online defamation often ricochets back on the victim.

Other panelists included First Amendment lawyer and editor of the blog, The Legal Satyricon, Marc Randazza and San Francisco marketing and strategy consultant Terra Terwilliger.  Josh King, vice president for business development at AVVO, served as moderator.

Wilson mentioned the case of a chiropractor who had nearly 50 reviews on Yelp! for an online rating of 4.5 out of five.  One person wrote a negative review and the chiropractor sued. “Emotion takes over,” Wilson said, “It’s the Streisand effect.”

He was referring to Barbra Streisand’s suit against a photographer who took aerial images to document coastal erosion for the California Coastal Records Project. One of the 12,000 images in the project included Streisand’s home. She sued to have the photo taken down from the web.  Publicity generated by her suit produced nearly a half million hits on the previously little-visited site.

Yelp! Wilson said, encourages posters to use their real names and photos.  “Anonymous comments don’t have the same weight.”

Terwillger agreed.  “Authenticity is critical on the web.  Every day it’s more and more clear that anonymous comments are suspect.”

“I write a lot of mean things,” said Randazza. “Some people tell me I was unfair.  I give them the opportunity to rebut, but no one has ever taken me up on my offer.”

Terwilliger pointed to the case where a tenant of Chicago’s Horizon Group Management tweeted about mold in her apartment to her 20 followers and the company sued her for libel.  The story in June 2009 hit as high as No. 3 on Twitter’s list of trending topics and made the front page of Digg.com in which users rate the top news of the day.

“Moldy apartment, not so interesting,” said Terwilliger.  “Landlord suing because you mention mold, very interesting.” She said the case is a textbook of what not to do.

Wilson said he has learned of some groups of doctors that manage their online image by asking patients to sign waivers saying that if they write a review on an online, the copyright is assigned to the physician.  If there is an unfavorable review, the doctor files a DMCA (Digital Millennium Copyright Act) take-down notice and the site has to remove the comment.

The DMCA of 1998 limits the liability of online services for copyright infringement by their users if they take down the material in question when notified.  The act, which implements two World Intellectual Property Treaties of 1996, also criminalizes production and dissemination of technology or services that circumvent digital rights management measures used to control access to copyrighted works.

The panel discussed the suit by North Face against South Butt, a parody product line developed by a 19-year-old student to pay for his education. The question for a company to ask is whether it is strengthening its brand or damaging its image, offered Terwilliger.

Regarding astroturfing, or purposefully posting positive comments or reviews to promote a business, Wilson said that Yelp! actively tries to find and suppress fake reviews. The practice is falling into disfavor, especially after the successful suit against Lifestyle Lift by the New York State Attorney General that resulted in a $300,000 verdict in favor of the state.  It was the first suit specifically for astroturfing.

King said he expected to see continued enforcement against the practice.

Terwilliger said it is important to remind clients to ask whether a tactic is grass roots or astroturfing. The issue involves control. “Do you allow or not allow comments on blogs? More and more organizations are not allowing comments.”

Whether comments or reviews, King suggests that the correct response is the one that shows you’re paying attention.

Learn More About:  Business LawTechnology Law