Legal Issues

by Mike Masnick

Is Complying With A Cease And Desist An Automatic Admission Of Guilt?

from the doesn't-seem-right dept

These days, any time anyone sees something online about themselves or their company that they don't like, the first thing they often do is have their lawyers send off a cease-and-desist nastygram. If you're in the online content business, it's hard not to get one sooner or later. They can look pretty scary the first few times you get one. However, cease-and-desists mean pretty much nothing. They're just a lawyer trying to scare you with the threat of a lawsuit. They include all sorts of scary language, and often have demands and timeframes that are impossible to meet (we once got one that was sent to the wrong address and referenced an email they had supposedly sent to an email address that doesn't exist -- by the time we got it, the date to meet their demands was already a month in the past). It's often a silly tactic. In our case, most cease-and-desist letters are over completely bogus issues, or, at worst, over information where there may have been a factual error. Instead of having expensive lawyers rush out a nastygram, a simple email or comment with a "hey, you got that wrong, here's the real facts" would have worked much better. However, lawyers do what lawyers do, and so the cease and desists go out.

On the receiving end, many lawyers suggest to C&D recipients that they just take down the content immediately, whether or not the complaint has any merit. It's a way of limiting damages. However, a new court case shows that some courts are bizarrely interpreting such an action to be the equivalent of a contract that you won't put the content back up. It's almost as if they see taking down the content as an admission of guilt. In this case, that's been filed by the folks at Public Citizen, the victim of a botched Lasik surgery put up a website criticizing the doctors who performed it. They threatened to sue, and he removed a lot of the content. He later put some new content up, after determining what content he believed was legal. The doctors claim that his removal of the content was effectively a contract that he would not criticize the doctors online any further -- and he somehow broke that contract in putting up new info. A Philadelphia court agreed, and granted an injunction stopping the guy from criticizing the doctors, citing the removal of the content along with some emails between the parties. As Public Citizen notes in filing the appeal, this seems to be a violation of First Amendment rights, as the guy never expressly agreed to give up his right to free speech when he simply removed the content following a legal threat.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Jean Thibaudeau, Jun 29th, 2006 @ 1:47am

    Business as usual

    It's the same dumb thing for businesses. Let's say you're a CEO and you face a lawsuit of about a million. It would be careful and good accountability to make a reserve of 1 million in your balance sheet. But, court law see that as almost a consent of guilt, so nobody does it.

    reply to this | link to this | view in thread ]

  2. identicon
    moe, Jun 29th, 2006 @ 3:58am

    What is in the emails?

    Of course, complying with a C&D order isn't an admission of guilt. But, you mentioned, "citing the removal of the content along with some emails between the parties," -- the content of those emails may be the make-or-break for the courts decision.

    reply to this | link to this | view in thread ]

  3. identicon
    Jay Fude, Jun 29th, 2006 @ 4:33am


    I'm confused, this is a court, yes? I've had some law classes, and one of them was business law, which covered contracts, heavily. For a contract to even exist, there must be a couple things. The two glaring things that are missing are: A meeting of minds, i.e. both parties know what they are contracting. The other thing is called consideration, a legal term meaning money or other benefit to the other party. If this was truly a contract, the promise of taking down the web site must have been rewarded with consideration. Did the webmaster receive pay from the doctors to make this a valid contract? Doubtful. So how the hell can the court even say there was a contract. see for complete definition of a contract.

    reply to this | link to this | view in thread ]

  4. identicon
    Ben, Jun 29th, 2006 @ 5:52am


    Just because the law says something doesn't mean much to a court anymore. We have a constitutional right to bear arms and to defend our lives and property, but some courts will allow lawsuits by a criminal who is injured by someone while breaking into a house. Law and legal definitions mean so little to many courts now.

    reply to this | link to this | view in thread ]

  5. identicon
    Xaethos, Jun 29th, 2006 @ 6:00am

    Email as contract

    If the court decides that an email is enough to form a contract, I suppose a reply to the C&D would suffice. Something on the lines of:

    "Dear Scary Lawyers
    In the spirit of being helpful, I shall temporarily remove the content from my site. When I determine your case is completely invalid, however, I shall put it up again.

    Still, something like this should be assumed. We're not children playing if-you-don't-tell-me-it-means-you-don't-know.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Jun 29th, 2006 @ 6:10am

    Sounds like the real issue there is free speech. I guess no one's allowed to speak out against those doctors. SIEG HEIL!!!

    reply to this | link to this | view in thread ]

  7. identicon
    Mike J, Jun 29th, 2006 @ 6:31am

    lawyers will destroy us all

    I just wanted to coment on the "rewarded with consideration" comment. There was technically consideration if you take into account they said remove the content or we will sue. the reward was the removal of the pending lawsuit, that was their compensation for removing the content the scary lawyers removed the case against them. Putting the content back up was in compliance with the first ammendment as was the first posting of the information his mistake was taking it down and not trying to fight them in the first place.

    Without the ability to post true and honest statements on the internet that will remove our free speach, that will restrict the comments like "dont use castcom cable they are too expensive and they keep raising their prices" and putting up a website with prices and rates of increase without increase in their cost or quality of service.

    But seriously if they keep up tactics like this no one will want to warn others anymore about bad services and thats what makes the internet a useful tool, ask others hey I was planing on doing something can anyone tell me if its a good idea or not. Its a tool that connects us to people that have had the same experiences, gone thru the same financial risks etc. and if lawerskum want to stop negative statements why dont they just make buisness operate in a good buisness maner and stop screwing people then there will be no need to defend negative publicity!!!!!!!

    Im out, have fun and safe posting everyone.

    reply to this | link to this | view in thread ]

  8. identicon
    ebrke, Jun 29th, 2006 @ 6:45am

    " . . . thats what makes the internet a useful tool, ask others hey I was planing on doing something can anyone tell me if its a good idea or not."

    And that is why they don't want consumers to be able to do it.

    reply to this | link to this | view in thread ]

  9. identicon
    Working Hardly, Jun 29th, 2006 @ 7:46am

    Why don't these Lasik doc's spend the money on more training, instead of on lawyers.

    reply to this | link to this | view in thread ]

  10. identicon
    SPR, Jun 29th, 2006 @ 9:01am


    Just as surely as Tom Delay's resignation from Congress was an admission of guilt.

    reply to this | link to this | view in thread ]

  11. identicon
    Beck, Jun 29th, 2006 @ 9:13am

    Let's Help the Guy Out

    Pennsylvania resident Dominic Morgan is not allowed to mention on his Web site ( that doctors Herbert Nevyas and/or Anita Nevyas-Wallace botched his lasik surgey and left him blind. He is not allowed to mention their names anywhere on the Internet.

    However, I am not similarly enjoined from writing about it here (or anywhere else for that matter).

    reply to this | link to this | view in thread ]

  12. identicon
    jeff, Jun 29th, 2006 @ 9:38am

    just remember...

    ...that when your government does shit like this to you, terrorism works.

    reply to this | link to this | view in thread ]

  13. identicon
    Sean, Jun 29th, 2006 @ 9:55am


    So if you are in the city and some one comes up behind you and "threatens" you say with a lighter that they say is a gun and asks for your money. So you give it to him he leaves you call the cops they get the guy you go to court to press charges ect. They should be able to get away with it saying that is is a contract since it did have both things a contract needed and verbal contracts can hold up it court. 1 both parties know what they are contracting 2 the other party got something one gets money the other keeps the same amount of holes in there body they were born with.

    reply to this | link to this | view in thread ]

  14. identicon
    anonymous coward, Jun 29th, 2006 @ 10:00am

    I guess Herbert Nevyas and/or Anita Nevyas-Wallace have never heard of the Streisand effect. They should add that to the cirriculum at Bob's Discount School of Lasik Training.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, Jun 29th, 2006 @ 10:31am

    Re: Let's Help the Guy Out

    It's quite likely only a matter of time before it hits Slashdot and Digg, at which point any hopes of keeping it under wraps are gone...

    And this case is yet another reason why I would NEVER, ever have a jury trail if I were innocent of anything. Most people who end up on juries seem to be people to incompetent to get themselves out of serving.

    reply to this | link to this | view in thread ]

  16. identicon
    Zeroth404, Jun 29th, 2006 @ 12:10pm


    Its pussy-footing around your rights if you're innocent.

    reply to this | link to this | view in thread ]

  17. identicon
    anonymous, Jun 30th, 2006 @ 1:00pm

    Re: Re: Let's Help the Guy Out

    "Most people who end up on juries seem to be people to incompetent to get themselves out of serving."

    I served a month on a Grand Jury. It was pretty awful conditions being on a Jury. Juries are made up of: lots of older retired women, a couple male union workers, several younger women who are on break from college or just graduated, sometimes teachers & nurses, and maybe one unemployed person.

    Also although our jury room was very multi-cultural when we were all called up. By the time everyone was done with their excuses to the judge to get out of jury duty, the juries both ended up mostly white, mostly female with only a few multi-cultural people on them.

    From what I've seen juries know nothing about the law(of course) but they are intelligent, stable overall. I also saw that there were a few otherwise level-headed jury members who did let emotion rule when it came to their voting...ignoring hard facts or lack of facts in a few cases that seemed to push their emotional buttons.

    Serving on a jury is like being in lock down and giving up your right to dignity and respect. I guess that's why I don't really blame those who try to get out of it. Oh and for the priviledge of being on a jury you get to pay your own parking, buy lunches at expensive places downtown (they don't provide fridges for you to even bring your own lunch), you sit for hours in an uncomfortable chair in a windowless room, you don't make any money, they show you a drepressing breakroom that you almost never get to use anyway, and you get way behind on all the work that you have to do at your real job. Meanwhile you see the judge just once and he tells you that you are providing a community service but the whole treatment you get from the jury-handling staff is one of treating you like a child or criminal yourself.

    reply to this | link to this | view in thread ]

  18. identicon
    Dom Morgan, Jul 2nd, 2006 @ 10:14am

    There was NO contract and/or agreement

    edited to remove doctors names (of course):

    Stein & Silverman, PC
    230 S. Broad St.
    Philadelphia, PA 19102
    Attn: Leon Silverman

    August 1, 2003

    Mr. Silverman,

    With regards to the certified letter dated July 30, 2003 pertaining to my website LasikSucks4u, I have conformed to your requests insofar as to remove any stated libelous reference to the xxxxxx’ and their practice only. I will not remove the website in its entirety, and will be updating this site or others with facts of my care, treatment, history, all of the legal issues pertaining to my case and all necessary documentation substantiating those facts within the legal guidelines as allowed by law and the First Amendment which grants me freedom of speech.

    Although the courts ruled no causation as to the damages done to me in my case against the xxxxxx’, they do not state the truths. Regardless of your representation of the xxxxxx’ and their business, they still did this to me, and no one will stop me from telling the truth. I did not want nor agree to any confidentiality pertaining to my case, and will expose and report the xxxxxx’ as to the damages they’ve inflicted on me, as well as the wrongdoings they’ve done regarding their investigational laser. If you were to have read the whole website, not just what pertained to the xxxxxx’, maybe you would actually understand it. Incidentally, some pages to the website which was posted were not the actual pages I intended to post to this site. I have just learned how to design these things (barely) and have run into a few problems, accidentally posting the wrong ones. I do not have the necessary experience with java, and believe it or not, I have visual problems.

    I find it disgusting you people represent the xxxxxx’ knowing full well their history. They ruined my life as well as others. That is the truth! Does the money really mean that much? Apparently my health and welfare does not.

    As far as legal representation by Mr. Steven Friedman, any further contact you may require can be done with me directly.


    Dominic J Morgan

    I believe the judge's decision was wrong, as does Public Citizen and the ACLU.


    reply to this | link to this | view in thread ]

  19. identicon
    Dom Morgan, Mar 18th, 2007 @ 8:23pm

    Is complying an automatic admission of guilt?

    NO! And the Pennsylvania Superior Court agees:

    As previously mentioned, I sent a letter of intent to Nevyas' attorney. I followed through with it, and after almost 17 months of having my 1st Amendment rights denied, will still abide by my letter. The truth will prevail!

    Thanks to all who have given moral support through my website

    reply to this | link to this | view in thread ]

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