Internet Defamation and Cybersquatting [Podcast]

Posted November 30, 2012 in Internet Law Podcasts by

 

Matt:  Welcome to Lawyers.com Radio. Your legal solutions start right here. We’ll help you understand your legal issue, find a lawyer in your area, and suggest legal forms for legal self-help.

I’m Matt Plessner and today we’re going to cover the latest trends in Internet law and to help us talk about that we have attorney Enrico Schaefer from the Traverse Legal, PLC, a law firm specializing in Internet law issues, cybersqautting, Internet defamation and trademark issues on the web.  

 

Internet Defamation

Matt:  First of all, Enrico, Internet defamation and online attacks to reputation are big Internet law issues. What’s the latest on that front?

Enrico:   There’s always a lot going on in this area because although defamation law and libel and slander law have been around for a long time, the principles are very challenging to apply for Internet-related activity, for online activity. One of the big issues that we’re seeing right now is what’s called the single publication rule.

One of the challenges in Internet defamation law is if someone posts something on a website, but you don’t see it for years, and then all of a sudden it pops up on Google search, can you go back and sue that person for defamation by filing a defamation lawsuit in court? The answer depends on the statute of limitations. Every cause of action, including defamation, has a statute of limitations, which says you must file the lawsuit within so many years from some date, for example, the moment a person hits you, or in defamation law the time that they published the defamatory statement.

 

The Single Publication Rule and the Exception

In the Internet space, publication is much more tricky in certain ways because content gets replicated and websites change.  But what people need to know is that the single publication law essentially says that when someone who posts something that’s allegedly defamatory about you, when they post that onto the website, that day starts the statute of limitations, which is usually one or two years depending on the state, so if you don’t discover that publication for one to two years you may not be able to do anything about it.

Now there’s an exception to that. The single publication rule will apply unless the statements are substantively altered or added to or the website operator directs that statement to a new audience. So for instance, republishing a statement on Facebook or linking to it from Facebook, these types of things are they types of issues that courts are struggling with.

What does it mean to alter, to add, or direct to a new audience?  I will tell you that the bar there can be fairly high.  For instance, there was a recent case where the website operator changed the whole design of their website, but didn’t change the post, and the court said that that was not a change to the publication itself, and therefore the statute of limitations has run and the person who sued and had filed an Internet defamation lawsuit was out of luck. That person couldn’t go back and do anything about it.

Matt:  What happens if this posting or a website that you’re talking about is copied multiple times?

Enrico:  One of the things that can happen is someone might take that post on that Web page and repost it somewhere else. That may be a new publication. They might take and start to issue press releases or Facebook posts about that post in such a way that it creates the possibility of making the argument that the statute of limitations begins to run again.

 

Act Quickly To Protect Yourself Against Defamation

But the main point is this, if you do not act quickly enough you will lose your legal rights to sue even if the statement that was made was defamatory about you. So there are two things that you ought to be thinking about. One is you have to monitor your online presence.  You can set Google alerts for all of your company names, your brands, and your personal names that are important because you need to see what people are saying about you on the Internet as soon as possible, so that you can do something about it.

The next thing you need to understand, Matt, is that if you do see that someone has posted what you believe to be a defamatory comment about you on a website, a blog, or on Facebook, or on Twitter, you need to contact an attorney right away because you may not have a lot of time to be able to understand the issue and then do something about it.

 

Dealing with Cyber-Savvy Geeks

Matt:  There are those cyber-savvy geeks that you always hear about that can do things like, for example, write something defamatory on a website or social media, and put privacy settings on it so that the party being defamed cannot see it from their IP address and things like that. Are there laws to protect these sort of things?

Enrico:  That’s an interesting issue that the courts are struggling with. Let’s take a simple example like a bulletin board service where the content and the bulletin board is password-protected, and so the website operator has made those pages such that they won’t be indexed by Google and that they can’t be seen by anyone unless you’re a registered user. In those situations, there is a concept called  a discovery rule.

If you could not have reasonably discovered the defamatory statement, the statute of limitations might not start to run until you discovered it. So there are exceptions. That’s why it’s important to get a lawyer who specializes not only in defamation law, but Internet defamation law if something like this happens. The answers aren’t always clear but a good Internet defamation law attorney will be able to know what the issues are that need to be reviewed. 

 

CyberSquatting

Matt:  Let’s talk a little bit about cybersquatting, the bad faith registration of a domain name in which you incorporate somebody else’s trademark. That seems very straightforward.  Is it?

iStockphoto/Thinkstock

Enrico:   In general, it is. You can’t register someone else’s personal name or trademark or something that’s reasonably similar as a domain name. So you can’t go try and siphon off someone else’s traffic by registering a similar domain name. However, the issue is always whether or not someone registered that domain name incorporating your trademark in bad faith or with a bad faith intent to profit.

We’re seeing some really big judgments against people engaged in cybersquatting. Plaintiffs who are filing Anti-cybersquatting Consumer Protection Act (ACPA) lawsuits against cybersquatters have been largely successful, and we’re seeing judgments of hundreds of thousands of dollars or millions of dollars. We received two judgments in the last few months, one for hundreds of thousands and one for millions of dollars against cybersquatters.

So it’s still a big risk out there. You don’t want to be a cybersquatter.

 

Contributory Cybersquatting

Another trend is something called contributory cybersquatting. The person who registers the domain name is always the target, but now plaintiffs who are filing these cybersquatting lawsuits are also naming the company that’s providing the software and that delivers the ads on those cybersquatting pages, the companies used to register the domain names, the GoDaddys of the world, and the companies that are in any way involved with the activity that’s going on the website.

Contributory cybersquatting means that the company wasn’t the one that registered the domain name but was integral to the monetization, the stealing of traffic, the monetization of that traffic from that domain. They knew or had reason to know that their software or their service was being used for that unlawful purpose. So that’s a big issue. You’ve got to be careful if you’re providing software, web hosting or domain registration services to people who are engaged in cybersquatting.

 

Registering a Domain Name

The last thing out there is this concept of registration of a domain name. The ACPA says it’s unlawful to register, use, or traffic in a domain name, which incorporates someone else’s trademark if you’ve got the bad faith intent to profit. The big thing going on right now is what does registered mean? There’s a lot of variation amongst the courts, but some courts have said that registration is the very first, essentially the creation date of the DNS (domain name system) record.

So what that means is the very first person who registered the domain name has to have had bad faith at that moment, even if the domain name is sold or transferred later. That doesn’t get you off the hook if you then use the domain name in a way that violates the statute or try to sell the domain name, violating the statute. But this does have the potential to limit the rights of trademark owners.

Matt:  Enrico, while we’re talking about registration, how similar are two domain names allowed to be? Like for example, in a personal sense, my business is called Solid Sound (singular) Music, and it’s a DJ service. Say in Lansing, Michigan, for example, an hour away, somebody opened a Solid Sounds Music, and it’s a record store. Could this be an issue?

Enrico:  Well, that sounds to me like that’d be a pretty good case because the adding of an S really has little impact on the analysis. Trademarks protect not only the literal words and the spelling, but also anything that is similar enough such that a consumer might be confused.

And yes, Delta could be an airline and a faucet. However, you’re talking about two companies that are in the similar market of music and sound. Certainly that would be an issue that a good cybersquatting law attorney would say, on both sides, “You could win, you could lose.” There are going to be some factors that will determine the outcome, but it’s certainly within the range of issues that are legitimate.

 

Web Agreements

Matt:  Now the terms and usage of other Web agreements are always there in the footer of a website. No one looks at them. Are Web agreements even important?

Enrico:  Yes, they really are. This is a big trend in Internet law right now as courts grapple with what is the contract essentially between the website owner and the people who come to the website. The website agreements, the terms of service, the terms of use, the privacy agreement, those are the contracts that the court is going to look at to see what is the deal made between the website owner and the website visitor.

From the owner’s point of view, you need to make sure your website agreements are actually matching the business model, so you need to be able to get the right to do the things that you’re doing on your website through your website agreements. If you are gathering information and reselling that data to third parties, your website agreement better say that you have the right to do that.

From the visitor’s point of view, you should be reading these website agreements. There are websites out there that are doing very questionable things with you, your data, your emails, your registration, planting cookies when you come to their site, and then tracking you without your knowledge.

Those things oftentimes are really dramatic and people are like, they can’t do that. Well, the answer is to go to the terms of service and website agreements and see if they actually can. Now, that doesn’t mean that even if it’s in the terms of service the website owner will always win, but they will win most of the time.

So from the website visitor’s point of view you need to be savvy, you need to understand what the terms of service are for the websites you like best and for the websites you visit. Website owners, you need to make sure that your website agreements cover you from liabilities which would cause potentially someone to be able to shut down your website or sue you for lots of money because you did something that wasn’t in the terms of service or privacy agreement.

Matt:  What does a good Web agreement usually cover or entail, Enrico?

Enrico:  A good agreement always covers your business model. There’s a lot of variation. A lot of people want to go cut and paste website agreements and put them on their website. That’s a terrible idea. If you don’t have any money at all to pay an attorney, you should still make sure that your website agreement matches your business model.

If you’re gaining certain personal information from users who are registering for your website, you better make sure that your website agreement is advising of that and telling the person who’s  providing this information to your website what you can and cannot do with it. You don’t want people suing you in a class action lawsuit and potentially representing everyone who has been to your website, essentially trying to sue your company out of business. Those things need to be accounted for in your website agreements. So they’re really important. 

Matt:  So what you’re saying is that everything on your Web agreement has to be you-specific.

Enrico:  Absolutely. We have a whole matrix we run through to identify what types of issues you’re going to deal with in your business model on your website and then we know what types of language we need to propose to the client to consider, based on their risk tolerance and customer relationships.

Some websites just want to cover themselves against anything and be able to do anything they want with the data. Other website operators want to build relationships with their visitors and are very careful about what it is they not only say they can do, but what they, in fact, do with information. So they’re looking to have a really balanced and fair website agreement because they want people to think kindly of them. It’s part of their good will.  It depends on your risk tolerance, your relationship with your visitors and what your business model demands.

Matt:  Well, Enrico, once again, thanks for talking with us today.

Enrico:  Not a problem, Matt. Have a great day.

Matt:  Join us next time on Lawyers.com Radio. Today’s show is sponsored by Traverse Internet Law, an operation of the Traverse Legal Office in Traverse City, Michigan.

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