Dislike or Defamation – Rules about Online Reviews

https://www.flickr.com/photos/jesper/269194762

John and Jesper | Thumbs Down by Jesper Rønn-Jensen from Flickr (Creative Commons License)

When it comes to online review sites like Yelp and TripAdvisor, it may be difficult to do to determine when a reviewer is a legally sharing their dissatisfaction about you and when they are out-and-out defaming you. The former is legally protected speech that requires damage control; and the latter may require a cease-and-desist letter or a lawsuit.

One of the best things of out the Internet is that it gives Joe Average people a platform to share their thoughts. Review sites like Yelp and TripAdvisor let multiple people share their experiences with a business that others can read and the business owners can respond to reviews within this forum. They can give you an idea of what to expect before you arrive and whether a particular place will fulfill your needs or expectations. I find it highly valuable, and when I’m satisfied with the service I received from a company, I often asked them where I can leave positive feedback for them online.

When a company sucks, I don’t hesitate to share those thoughts either. I believe that friends don’t give friends bad referrals, and that there is no problem with calling out a business that does a particularly bad job. But there is a right way and a wrong way to do it.

1. Stick to the Facts: Unless you have a nondisclosure agreement that prevents you from sharing in your experience, there shouldn’t be a problem if you simply state the facts of your experience – i.e., the delivery people were 2 hours late, your food was cold when it arrived, the clerk apologized for not having the item you wanted.

2. Share your Feelings: Share how you felt during the experience – you were pleased that the restaurant comped the meal that you sent back, you were angry that you missed an appointment while you were waiting for the delivery guys, you were shocked that the clerk stared at your chest instead of looking you in the eye when he/she spoke to you.

3. Be Accurate: Federal law requires you to be truthful and accurate when giving a review. Avoid half-truths and insinuations. There should be no doubt in the reader’s mind between what you wrote and what you meant. This law also requires you to disclose when you are compensated for providing your opinion – such as getting free products or paid for providing a review. (The penalty for violating this rule is a fine for up to $11,000.)

In general, be thoughtful about what you post online and reading each review carefully before you hit “post” or “save.” If you are making a statement that sounds like a fact, make sure that it is verifiable. So that means you can’t say that a particular restaurant gave you food poisoning unless you can present hard evidence (like a doctor’s note) that that particular meal is what made you sick. Otherwise, you might be better off calling or email laying the manager directly and explaining that you were sick shortly after eating at that restaurant and that they might want to make sure all employees are complying with the rules to avoid foodborne illnesses.

If you believe and online review may have crossed the line from expressing dissatisfaction to defaming a person or the company, contact a social media attorney to review the situation and advise you of your options. With so many people sharing their opinions and experiences on a multitude of platforms, this is an issue that is not going away any time soon. If you want to talk more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

If Someone Sends you a Photo of Themselves, Do you Own It?

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Frequently I hear questions like, “If someone emails or texts me a photo of themselves, does it become my property?” Many people in this situation want to know if they own the photo and what they are allowed to do with it.

The answer to “Do I own the photo?” is “Yes” and “No.” Yes, you do own a copy of the photograph by virtue of the fact that someone gave it to you. However, owning a copy of a photograph does not mean that you own the copyright in the image, which is why you can’t do whatever you want with the picture. If the person who sent you a photo intended to give you the copyright as well, the copyright assignment would have to be in writing.

Think of getting a photo via email or text message like it getting a postcard in the mail. The postcard was addressed to you so you now own it, which means it you can look at it, put it on your refrigerator, and if the message doesn’t contain something that any reasonable person would know the sender would expect to be kept private – you could show it to others. However, you cannot make photocopies of the postcard and sell it or send it to others without the copyright holder’s permission.

Keeping this in mind, it should be obvious that the fact that someone sent you a photograph does not give you permission to do whatever you want with it. You would have to get permission from the copyright holder to post it online, and if it’s an image the sender would expect you to keep private, merely showing it to others could be illegal. If the photo in question is an explicit image, showing it to others could violate your state’s revenge porn law, which may be a felony.

With few exceptions (like child pornography) having a photo is not illegal but what you do with it could be. Therefore, if someone sends you a photo of themselves, you may keep it for your personal viewing pleasure but it could be illegal to share it with others.

This is an area of law that is still evolving. Since mobile devices come equipped with cameras, it’s important for everyone who has one is mindful of their dos and don’ts regarding sending and receiving images. If you want to talk more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

What’s Up with the Cactus-Cams in Paradise Valley?

Four Peaks Seen Through Cactus Goal Posts by Alan Levine from Flickr (Creative Commons License)

Four Peaks Seen Through Cactus Goal Posts by Alan Levine from Flickr (Creative Commons License)

If you’re at an intersection in Paradise Valley and you see a saguaro cactus that looks fake, it probably is.

Paradise Valley recently installed three fake cacti that contain cameras that will be snapping photos of every license plate that goes by. Ken Burke, Paradise Valley’s City Manager said the images will be compared against the “hot list” which includes cars that are reported stolen or part in Amber Alerts. The city said the images that are not connect to any investigations will be destroyed after 180 days.

I’m a bit skeptical of this reasoning for the cameras. According to the Maricopa County Attorney’s Office, vehicle thefts have been steadily declining in recent years. And according to the official Amber Alert website, there was only 1 Amber Alert in Arizona in 2011, the most recent year for which a report was released. I wonder if they installed them to search for cars that are related to crimes or people with warrants.

And what about privacy? The law has firmly established that you have no expectation of privacy in anything you do in public, including where you go in your car. The U.S. Supreme Court ruled that the police need a warrant to put a GPS on your vehicle. Snapping your photo every time you drive through a particular intersection isn’t as extreme as tracking your every move, but it could be used to track patterns of behavior.

On its face, this looks like a waste of time and money, but I would be curious to hear an update about these cameras in six months. I would want to know how many crimes they’ve helped solve and if they’re being used for additional tasks.

Privacy issues aren’t going away any time soon. If you want to chat more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

Can Someone Post Your Personal Information Online?

Graffiti by Alberto Garcia from Flickr (Creative Commons License)

Graffiti by Alberto Garcia from Flickr (Creative Commons License)

This is a question I’ve been getting more frequently lately – people asking about the legalities of posting another person’s personal information on the Internet, sometimes referred to as doxing. And of course as any regular reader would know, the answer to every legal question is, “It depends.”

If you have shared your information with others in a public place whether it’s through a directory like the white pages or informally through social media, there may be nothing you can do to stop somebody from sharing information that you have previously freely shared with the public. Please note, regardless of your privacy settings, there is no expectation of privacy in anything you post on social media. It may be very easy for someone to piece together your name, your hobbies, where you work, what city you live in, and information about your family from posts and pictures you posted online. Look how easy it was for Jack Vale to surprise and frighten people based on what they posted on Instagram.

Conversely, there may be situations where somebody releases your private personal information, such as your unlisted phone number, your social security number, or other information that any reasonable person would know you would want to remain confidential. You are state may have a law against the public release of private information that you could use to get compensation from the person who shared your information. Depending on the circumstances and your local laws, sharing your personal information may be a type of harassment. If you think you’ve been the victim of cyberharassment, please contact your local law enforcement agency for assistance.

My advice is, “Think before you post.” Never put anything on the internet that you wouldn’t put on the front page of the newspaper. This rule applies even if you think you’re posting anonymously or with an alter ego because there is always a risk that you could be unmasked. In addition to being careful about what you post online, be careful about what information you share with others both verbally and in writing. Also be careful about who you let use your computer or phone if you have information on it that you don’t want to get out, or else you might find yourself in a similar situation as a kind teacher who let students use her cell phone. They repaid her kindness by sharing the intimate photos they found on it.

If you are interested in the dos and don’ts regarding privacy and the internet, please check out my book The Legal Side of Blogging: How Not to Get Sued, Fired, Arrested, or Killed. You can also connect with me on TwitterFacebookLinkedIn, or send me an email.

Why is it Hard to Remove a Post from The Dirty?

Clubbin' by rudlavibizon from Flickr (Creative Commons License)

Clubbin’ by rudlavibizon from Flickr (Creative Commons License)

For those of you who don’t know, The Dirty is a website where a person can post “dirt” about another person. It’s a website where you can post celebrity sightings, make fun of people, and call out somebody for cheating on you, etc. The purpose of the site, from what I can tell, is to provide people a forum to post truthful stories and others can read and post comments about them.

As a social media attorney, I regularly get calls and emails from people who claim there is a false post about them on The Dirty or a similar site and they want me to get it removed. Many of these people don’t want to get the police involved, file a lawsuit, or pay a lot of money to make this happen. I think a lot of them hope that a letter from a lawyer would be sufficient to get a post removed. Sometimes that works, but sometimes that is not the case – especially when it comes to The Dirty.

The people who run The Dirty and that their attorney understand the First Amendment. They tell their users only to post truthful information, but for the most part, they can’t tell when someone is telling the truth or not in a post. If the poster says what they wrote is true and the person they wrote about says it’s not, how would the people who run the website know who is telling the truth? The Dirty gets thousands of requests from people claiming that a post on the site contains lies about them. With few exceptions, they won’t remove a post simply because you asked them to.

I’ve never met The Dirty’s attorney in person, but we’ve exchanged several emails. My conversations with him tell me that he is a kind and thoughtful man and also a very good attorney. He won’t tell his clients to remove a post just because a person is upset that a story about them is on the site or because he gets a demand letter from that person’s attorney; however, he will comply with court orders to remove material, which usually requires some type of injunction or prevailing in a defamation, invasion of privacy, or similar lawsuit. The Dirty also appears to have respectful policies related to revenge porn and false posts about an individual having an STD.

When I meet with someone when I meet with someone who claims to be the victim of defamation and/or invasion of privacy on one of the sites, I often have to inform Michael and that the law doesn’t care about what they believe or even what they know; the law cares about what you can prove. When it’s a case of he said v. she said, there is often not much I can do. Yes, my client could sue for defamation; however, if the other party doesn’t have any money, it’s usually not worth pursuing.

If my client feels like they are the victim of cyberharassment or revenge porn, I refer them to the police. Cyberharassment and revenge porn are crimes and there is a lot more information that law enforcement can get from a website related to a criminal case than a lawyer can get access to during a civil lawsuit.

If you feel like your rights have been violated in an internet post, please contact a social media attorney in your community for assistance. If you want additional information about defamation, privacy, and the internet, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. You can always send me an email if you ever have questions, and please stay connected with me on TwitterLinkedInFacebook, and YouTube.

Google Reverses Ban on Porn on Blogger Sites

Censored by Peter Massas from Flickr (Creative Commons License)

Censored by Peter Massas from Flickr (Creative Commons License)

Last month Google announced an upcoming change in its terms of service that would ban all pornography from Blogger sites. (Blogger is Google’s blogging platform.) This change would have been retroactive and impacted some users who have used Blogger to post sexually explicit material for over 10 years. Users reacted hard and fast, saying that posting pornographic material on their sites is an expression of their identities.

Within days, Google made a second announcement saying that they won’t ban all porn on Blogger sites but rather they will be more diligent about their existing policy banned “commercial porn,” meaning porn that is posted online for significant commercial gain. If you have a Blogger site and you want to sexually explicit material, you’re required to mark those posts as “adult” so Google can put them behind an “adult content” warning page.

I found the initial announcement banning porn on Blogger puzzling. Why would Google, a company that serves an international community of amazing creative people, consider such a conservative policy change? I’m a huge advocate for preventing sexual victimization, child pornography, and revenge porn but those are very different issues than the voluntary creation of legal adult content, produced by adults for an adult audience. Blogger is a blogging platform so I assume most people have little or no financial gain from running their sites.

This is a topic where each person may have a slightly different belief regarding what is art and what is pornography based on personal and cultural differences. In the conservative U.S., a topless woman is considered explicit but in other countries, topless models (men and women) are used in mainstream advertising and anyone can go topless at the beach. Google made the right decision in regards to this by requiring everyone who uses Blogger to mark their material as “adult” and the consumers can decide for themselves what they’ll read and view and what they will block from their children’s access with parental controls.

Companies like Google that provide services to a worldwide audience have to decide how policies should be written, which appears to be a challenging task. I’m pleased to see in this instance that Google listened to its users and the culture of the internet in general and repealed this ban.

If you want to talk more about free speech, censorship, and the internet, please connect with me on Twitter, Facebook, LinkedIn, or send me an email.

Top Three Legal Tips for Dad Bloggers from Dad 2.0 Summit

Awesome Bo-Gos at the Dad 2.0 Summit 2015

Awesome Bo-Gos at the Dad 2.0 Summit 2015

I had an awesome time at Dad 2.0 Summit – an awesome conference for dads who blog. I was invited to the conference to hang out in the Knowledge Bar during the breaks to talk with people about the legal dos and don’ts when it comes to their blogs. One gentleman asked me what three tips I’d give to the conference’s audience. Here’s what I said.

1. Be Thoughtful about what Images you Use on your Site.
Unfortunately, a lot of people think they can use any image they find online as long as they give an attribution and a link back to the original. What you’re likely doing is committing copyright infringement and telling the artist what you did. I recommend getting permission from the person to use their image or only use Creative Commons images for your site. I only use images that come with the license that lets me modify and commercialize them.  For more information about this topic, check out this post and/or watch this video.

2. Register your Trademarks.
This is my soapbox issue for the year for bloggers, vloggers, and podcasters – register your trademarks! If you don’t, someone else can start using it, register it with the U.S. Patent and Trademark Office and they could essentially shut down your site. You’d have to decide whether to fight them for it or rebrand. It’s easier and cheaper to protect yourself by registering your brand first. Then that way you’ve secured your rights to your name, logo, and slogan everywhere in the U.S. For more information about this topic, check out this post and/or watch this video.

3. When you get Free Products or Write Sponsored Posts, Disclose It.
Federal law requires you to only give true and accurate reviews when you do product reviews and you must disclose when you are compensated for giving your opinion. You have to tell your audience when you get products for free, participate in campaigns for compensation, or have sponsors. This rule applies to blogs, review sites, and anywhere you post on social media when you’re compensated for doing so. For more information about this topic, check out this post.

The laws regarding blogging and social media are still developing so it’s important that you stay abreast of changes as they occur when they apply to you. I will do my best to create content on developments in social media and internet law. If you’re looking for a resource that reviews the laws that apply to bloggers, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. You can always send me an email if you ever have questions, and please stay connected with me on Twitter, LinkedIn, Facebook, and YouTube.

If I don’t see you before then, I look forward to re-connecting with you at Dad 2.0 Summit next year!

Does Your Business Need Cyber Liability Insurance?

Guilty Viewing Pleasures: Hackers by Ingrid Richter from Flickr (Creative Commons License)

Guilty Viewing Pleasures: Hackers by Ingrid Richter from Flickr (Creative Commons License)

Anthem Health Insurance was victim the latest cyber attack to hit the news. Approximately 80 million customers’ health records were compromised by this security breach. When you hear about these hacking stories, do they make you wonder about your company’s security system? Do you assume that you probably have nothing to worry about because hackers are only interested in big companies like Target?

I attended a workshop last month about cyber liability insurance where the presenter said that a 2011 study revealed that 95% of all credit card breaches were against small businesses. We only tend to hear about the security breaches involving bigger companies but any size company could be at risk. Data breaches can occur through hacking, theft by unauthorized access , employee errors, and stolen or lost paper or electronic files, laptops, smartphones, flash drives.

Any business that handles or stores private business, customer, or employee data should consider getting insurance to cover them if a data breach occurs. This data includes social security numbers, bank account information, credit card numbers, driver’s license numbers, and email address. Additionally, you should take a look at your company’s policies and procedures related to data security. Are you taking the following precautions?

  • Secure sensitive data
  • Restrict access to data
  • Dispose of data properly – i.e., wipe laptops before donating them, shred paper files
  • Use effective passwords
  • Use encryption and secure remote access
  • Make sure your employees understand how to protect data and why it’s important

There are many benefits of having cyber liability insurance. Your provider should offer risk management services to help prevent a data breach from occurring. If a breach occurs, they will can professional assistance for damage control and regulatory compliance as well as cover the response expenses for mailing notification letters, credit monitoring services, and public relations. Your cyber liability insurance policy can also cover your defense and liability expenses if you are sued because of the breach.

This is a serious issue that can affect any company that uses the internet for business or commerce. If you have a traditional business liability insurance policy, read the terms carefully; it may not cover cyber liability. If you need a cyber liability insurance policy, contact a cyber liability insurance specialist to discuss your needs and options.

If you have questions or want to chat more about these issues, feel free to connect with me on TwitterFacebookLinkedIn, or you can send me an email.

Man Convicted of Running a Revenge Porn Site – What This Means For You

Cell Block D by Sean Toyer from Flickr (Creative Commons License)

Cell Block D by Sean Toyer from Flickr (Creative Commons License)

Last week a San Diego court convicted 28 year-old Kevin Bollaert of 27 felony charges including identity theft and extortion for running multiple revenge porn websites. He could face up to 20 years in prison. Here’s how the sites worked: people would post nude photos of their former lovers (often with the victim’s name, city, and a link to their Facebook profile) and the victims could get the images removed, if they paid a fee. These sites have since been taken down.

Prosecutors described Bollaert’s sites as a business based on blackmail. At the trial, several victims testified that they were humiliated and faced other repercussions because their images were posted on these sites without their consent. This appears to be the first conviction for an operator of a revenge porn website, but hopefully it will not be the last. The article did not state whether any of the people who posted the revenge porn images in question have also faced criminal charges or civil lawsuits.

This case should serve as a warning to anyone who is operating a similar website. If you encourage people to post revenge porn and charging the people in the images to get them removed, there is now legal president that this is a type of extortion.

This is also a legal gray area. It’s one thing to create a platform where people can post images and stories on your site, activities that are often protected by the First Amendment and copyright laws; but the person creating the posts could cross the line into invasion of privacy, cyberharassment, and revenge porn depending on the material posted. Depending on the circumstances, the owner of the site could also face criminal or civil liability, but often times simply providing a platform is not enough to hold the site’s owner responsible for what other’s posts unless there is additional evidence that implicates them.

I’ve been getting more questions recently about people who are being threatened with revenge porn where the image or video hasn’t been posted yet. Sometimes I’m unsure if it’s a situation where the would-be poster is saying, “I’m going to post your nude photos online” or trying to use the images as way to manipulate the person by saying, “If you don’t do XYZ, I’m going to post your nude photos online.” I’m conversing with the Phoenix Police Department about this issue to better advise my clients who are in this situation.

If you suspect you’re the victim of revenge porn, call your local law enforcement agency. I do not blame the victims in these situations, but I caution people, especially young people to think before they create or send sexually explicit material. If any of this content is released on the internet, you have no control over who might see it, share it, download it and even if you can get the original removed, it could still be out there on other sites. When in doubt, don’t send naked selfies, take intimate photos in the bedroom, or create sex videos. If you’re thinking about posting revenge porn, don’t.

If you have questions or want to chat more about these issues, feel free to connect with me on TwitterFacebookLinkedIn, or you can send me an email.