H1 2012 Quick Links, Part 5 (Consumer Reviews, Content Regulation, Miscellaneous)

By Eric Goldman

[This is the last of the quick links for now. Hope you’ve enjoyed them!]

Consumer Reviews

* Deeply troubling development: Vacation rental companies are inserting non-disparagement clauses into their contracts to suppress negative online reviews.

* Ascentive, LLC v. Opinion Corp., 2012 WL 1569573 (E.D.N.Y. May 3, 2012). Ascentive voluntarily dismissed its lawsuits against PissedConsumer without prejudice. Prior blog post.

* The FTC busted Spokeo for running an unintentional credit reporting agency and for self-promoting using fake reviews. FTC blog post #1 and #2. NY Times coverage.

* Ruby v. Freedom USA: A business paid money to settle up with a disgruntled customer conditioned on the customer removing his gripes from the Internet. In this motion, the business seeks to force the content takedowns.

* Reddit initially populated its site with content posted by its founders under fake accounts.

* Washington Post: More questions about the integrity of TripAdvisor reviews.

Content Regulation

* State v. Schmitz, 2012 WL 2499948 (Ohio App. Ct. June 29, 2012):

Schmitz argues that his identity fraud conviction is based on insufficient evidence because everyone knew the MySpace page he created actually belonged to him and not Kalb. According to Schmitz, he never intended to hold himself out as Kalb. He only used Kalb’s name as his “alter-ego.”… At trial, Schmitz admitted that he created the MySpace page and posted its entries. The MySpace exhibit the State introduced informs the reader on the top of the page that “[S]andy [K]alb has joined MySpace!” Farther down the page, the exhibit reads “sandy b nee elgar kalb’s MySpace Blog.” Moreover, every posted message on the page ends with “Posted by sandy b nee elgar kalb,” “Posted by sandy kalb,” or “Posted by Sandy Kalb nee Elgar.” None of the entries identify Schmitz as the author. Although the individuals who testified at trial knew that Kalb was not responsible for the content of the MySpace page, they reached that conclusion because they knew Kalb and were aware of the situation between Kalb and Smith. It would be reasonable for any person reading the page without the benefit of that additional information to assume Kalb authored one or more of the posts on the MySpace page. Viewing the evidence in a light most favorable to the State, a rational trier of fact could have found that the State proved the elements of identity fraud. Schmitz’ argument that his identity fraud conviction is based on insufficient evidence lacks merit.

Accord In re Rolando S.

* Summit Bank v. Rogers, 2012 WL 1925535 (Cal. App. Ct. May 29, 2012). Disparaging remarks on Craigslist about a bank are protected by CA’s anti-SLAPP law: “Public forum comment criticizing, or even periodically praising, the performance of public corporations have been found protected by the anti-SLAPP statute.” Along the way, the court invalidates a century-old criminal law against defaming a bank as unconstitutional. The court also indicates that some online venues may be harder to establish defamation:

because Rogers‘s alleged defamatory statements appeared in a section of the Craigslist Web site entitled “Rants and Raves,” the reader of the statements should be predisposed to view them with a certain amount of skepticism, and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts.

Accord: DiMeo v. Max and Finkel v. Dauber.

* Cincinnati Enquirer: Sarah Jones has been indicted for having sex with her underage student. Also, WLWT. The indictment.

Jones’ deposition in her lawsuit against TheDirty. Nevetheless, the appellate court rejected TheDirty’s interlocutory appeal. Prior blog post.

* ABA Journal: $900k judgment in Internet defamation case.

* Yoder v. University of Louisville, 2012 WL 1078819 (W.D. Ky. March 30, 2012). The First Amendment doesn’t protect a nursing student who violated a promise not to share patient data by posting about a patient to MySpace. Prior blog post. Accord Tatro v. University of Minnesota.

* Simmons v. Danhauer & Associates LLC, 2012 WL 1237795 (4th Cir. April 13, 2012). Affirming the dismissal of a lawsuit over online auction irregularities, but expressly declining to rely on 47 USC 230. Prior blog post.

* Obsidian Finance Group, LLC v. Cox, 2012 WL 1065484 (D. Or. March 27, 2012): “defendant had presented no evidence as to any single one of the characteristics which would tend to establish oneself as a member of the “media.” In addition, the uncontroverted evidence at trial was that after receiving a demand to stop posting what plaintiffs believed to be false and defamatory material on several websites, including allegations that Padrick had committed tax fraud, defendant offered “PR,” “search engine management,” and online reputation repair services to Obsidian Finance, for a price of $2,500 per month. Ex. 33. The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee. This feature, along with the absence of other media features, led me to conclude that defendant was not media.”

* Mehrban v. Daneshrad, 2012 WL 1493875 (Cal. App. Ct. April 30, 2012): “Mehrban’s claims relating to Daneshrad’s statements on the internet, on her blog, on radio programs and similar public fora, expressing her views on the merits of collaborative law (and how her own dissolution would have benefited from such an approach), are the primary basis for his complaint. Those statements concern a matter of public interest [for anti-SLAPP purposes].”

* I.P. v. State, 2012 Ark. App. 273, (Ark. App. Ct. April 18, 2012). Student disciplined for making the following Facebook post: “F**k shooting up the school, i’m going in there with f**king SHURIKENS: and f**king KATANAS! And NINJA REFLEXES!”

* Nate Anderson of Ars Technica took a deep look at a child porn sting operation.

* Bradburn v. North Cent. Regional Library Dist., 2012 WL 1200448 (E.D. Wash. April 10, 2012): “NCRL’s use of FortiGuard to filter its patrons’ Internet access and its decision to not disable the filter upon an adult patron’s request complies with the First Amendment.”

* American Civil Liberties Union of Illinois v. Alvarez, 2012 WL 1592618 (7th Cir. May 8, 2012). Illinois statute restricting the recording of interactions with police is unconstitutional.

* The ACLU and Shurtleff settled litigation over Utah’s baby-CDA law.

* Sino Clean Energy Inc. v. Little, 2012 WL 1849658 (N.Y. Sup. Ct. May 21, 2012). Jurisdictional ruling in a battle over a pseudonymous Internet blogger (AlfredLittle) who allegedly bashed the plaintiffs’ stock while short-selling the stock.


* Newsweek, the Ruthless Overlords of Silicon Valley: “Though Silicon Valley’s newest billionaires may anoint themselves the saints of American capitalism, they’re beginning to resemble something else entirely: robber barons. Behind the hoodies and flip-flops lurk businesspeople as rapacious as the black-suited and top-hatted industrialists of the late-19th century. ”

* Flint v Strava complaint: Biker’s heirs sue UGC site over user-uploaded bike navigation courses. Doesn’t 47 USC 230 preempt this claim?

* Direct Marketing Association v. Huber: Colorado’s efforts to require online retailers to report sales to Colorado residents for tax collection purposes violates the dormant commerce clause.

* The Atlantic: A Note to Congress: The United Nations Isn’t a Serious Threat to Internet Freedom—But You Are

* Larry Downes: Why CISPA Can’t Be Fixed. Prior blog post.

* Is there a difference in information retention when we read material electronically vs. on paper? As reported by Time, some social science suggests that electronic reading is less effective than reading on paper.

* Museum of Endangered Sounds.

* Profile of Mike Masnick.

* Some personal good news: earlier this year, the university promoted me from associate professor (with tenure) to full professor.