2H 2015 Quick Links, Part 8 (Consumer Reviews, Google)
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Consumer Reviews
* In the hotel industry, “social media postings are resulting in additional capital expenditures as owners become more aware of and respond to criticisms and unfavorable comments. This effect became significant starting around 2012 and continues to increase.” Related article.
* Boston Globe: A Boston restaurant tries to contractually suppress diners’ negative reviews. Another reason we need a federal law banning businesses from attempting such tactics.
* Lucille M. Ponte, Protecting Brand Image or Gaming the System? Consumer ‘Gag’ Contracts in an Age of Crowdsourced Ratings and Reviews, 7. Wm. & Mary Bus. L. Rev __ (2015, Forthcoming), March 16, 2015
* FTC v. Roca Labs. Complaint alleges that using Gag contracts is unfair trade practice.
* Marketing Land: Amazon Sues 1,114 Fiverr Users For Offering To Write Fake Product Reviews
* SunEnergy1, LLC v. Brown, 2015 WL 7776625 (Del. Superior Ct. Nov. 30, 2015):
The content of the reviews on Glassdoor.com are such that it should be obvious to any reasonable person that the authors (all listed as current or former employees) are using the website as a vehicle to express their personal opinions about the company in question. Additionally, the context in which the comments are posted lends further support to this conclusion. Glassdoor.com is a website for employment and company evaluation–it is not a news website (e.g. WSJ.com or NYT.com) where there is an expectation of objective reporting and journalistic standards. Nor is it a website where a person would go to find detailed factual information about a company such as earnings reports and SEC filings. It is quite evident to the Court that Glassdoor.com is a website where people go to express their personal opinions having worked for a company–not a website where a reasonable person would go looking for objective facts and information about a company.
Finally, the Court will turn to the actual statements in the December 15, 2013 review. First, the title of the review, “This is a terrible place to work,” sets the tone for the rest of the review. Words such as “best,” “worst” and “terrible” are undeniably subjective assessments. It is readily apparent that the author of this review is unhappy about his or her time at SunEnergy1 and has the proverbial axe to grind–no reasonable person would think otherwise. The fact that the author is a “former employee” who wished to remain anonymous only cements this conclusion. Even when viewed in the light most favorable to Plaintiffs, the content of the review is simply nothing more than a rant by a former employee, citing anecdotal evidence, about why he or she thinks it is a terrible place to work. The author makes no objectively provable factual assertions. For every negative thing the author states, another poster could state the opposite with equal conviction and neither would be a provable fact. Furthermore, the only objective statement that could arguably be taken as a provable fact is whether or not the walls of an office “down the hall” actually shake if a person pounds on the CEO’s desk. Even if true, this fact is irrelevant as it is not a defamatory statement about Plaintiffs.
* Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc., No. 4D13-3916 (Fla. Dist. Ct. App. June 4, 2015). Allowing a FDUTPA claim to proceed when “Caribbean Cruise alleged that BBB represents it conducts an investigation into the businesses it grades, but does not; it uses sixteen factors to determine a grade, but does not; and the complaints it uses are from customers, when some are not. Caribbean Cruise also alleged that BBB hides information from the public, in the form of not disclosing how BBB’s accreditation process affects the grades of businesses.”
* Failed defamation lawsuit over negative eBay feedback leads to $19k fee award to defendants.
* Teleread: RIP: Prolific Amazon reviewer Harriet Klausner (1952-2015)
* Bloomberg: Google’s $6 Billion Miscalculation on the EU:
Whatever goodwill it had stored up [in Europe], Google started to lose in 2014, in the aftermath of the Snowden affair. Several of the leaked NSA documents revealed how Google and other companies had given the spy agency access to users’ accounts. Google said it was following the law and fought the NSA practice, but the damage was done….
“We don’t want to be a digital colony of the U.S. Internet giants,” said former French Economy Minister Arnaud Montebourg in an interview last year. “What’s at stake is our sovereignty itself.”
* Duffy v Google Inc., [2015] SASC 170 (S. Austr. Sup. Ct. Oct. 27, 2015):
1. The defendant was a publisher of allegedly defamatory paragraphs on its websites and a republisher via hyperlinks to the Ripoff Report webpages the subject of those paragraphs being those for which the plaintiff sues and of which the plaintiff gave notification and which the defendant failed to remove within a reasonable time. This applies to the first four Ripoff Report webpages and the paragraphs referring to them and several paragraphs referring to secondary websites’
2. The defendant published to Ms Palumbo in mid and late 2010 paragraphs relating to the first and second Ripoff Report webpages and republished the webpages themselves and in 2012 the Autocomplete words “Janice Duffy Psychic Stalker”…
4. The defendant published to substantial numbers of persons unknown in Australia the first and second Ripoff Report webpages and republished the webpages themselves. The defendant also published two paragraphs relating to Complaints Board webpages, one paragraph relating to a 123 People webpage and the Autocomplete words “Janice Duffy Psychic Stalker”
5. The paragraphs relating to the first and second Ripoff Report webpages and the webpages themselves and the paragraph relating to the 123 People webpage gave rise variously to imputations that the plaintiff stalks psychics, obsessively and persistently harasses psychics; fraudulently and/or maliciously accesses other people’s electronic emails and materials; spreads lies; threatens and manipulates other people; is an embarrassment to her profession; misused her work email address for private purposes and engaged in criminal conduct. These imputations were defamatory of the plaintiff
A good example of how laws in other Commonwealth countries differ from the US due to the First Amendment, Section 230 and more. See, e.g., Zhang v. Baidu.
* Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265 (B.C. Ct. App. June 11, 2015):
Summary: The plaintiffs alleged that the defendants designed and sold counterfeit versions of their product. They sued for trademark infringement and unlawful appropriation of trade secrets, and obtained injunctions prohibiting the defendants from carrying on their business. The defendants continued to carry on business, but did so in a clandestine manner using a variety of websites, and relying on web search engines to direct customers to those sites. The plaintiffs successfully applied to the court for an injunction prohibiting Google, which operates the world’s most popular search engine, from delivering search results pointing to the defendants’ websites. Google appealed, arguing that the injunction was beyond the jurisdiction of the court, that it improperly operated against an innocent non-party to the litigation and that it had an impermissible extraterritorial reach. Held: Appeal dismissed. Under the Court Jurisdiction and Proceedings Transfer Act, territorial competence over the action between the plaintiffs and defendants was sufficient to establish territorial competence over the injunction application. Google does not have resident employees, business offices, or servers in the Province, but its activities in gathering data through web crawling software, in distributing targeted advertising to users in British Columbia, and in selling advertising to British Columbia businesses are sufficient to uphold the chambers judge’s finding that it does business in the Province. The court, therefore, had in personam jurisdiction over Google. In the circumstances, it was permissible to seek relief against Google, even though it was not a party to the litigation. The injunction did not violate principles of comity.
* Techdirt: Study Of Spain’s ‘Google Tax’ On News Shows How Much Damage It Has Done. It’s terrible when European regulators prioritize “hurting Google” as a policy “win” instead of actually finding ways to benefit their constituents’ interests.
* NY Times: European Firms Team Up to Target Google in Civil Lawsuits
* Spy Phone Labs LLC v. Google, Inc., 2015 WL 4773159 (D. N.J. August 13, 2015). The “Spy Phone” app had difficulties with how Google handled it and rival apps in Google Play. The court holds that the tortious interference claim is governed by Google’s agreement but the contributory trademark infringement claim is not. Because the claims are so closely linked, the court awards a venue transfer for both.
* Baldino’s Lock & Key Service, Inc. v. Google Inc., 2015 WL 7888322 (4th Cir. Dec. 4, 2015):
the district court correctly determined that Baldino’s failed to show that the Defendants made any representations. Rather, the locksmiths who generated the information that appeared on Defendants’ websites are solely responsible for making any faulty or misleading representations or descriptions of fact. Accordingly, the district court did not err in dismissing Baldino’s Lanham Act claim under Rule 12(b)(6).
* Law.com: Beneath Google’s Fight With Orrick, a Big Business. And it’s quite a disgusting business. Related blog post.