by Mike Masnick
Mon, Oct 17th 2016 1:05pm
by Tim Cushing
Wed, Oct 5th 2016 2:40pm
California Passes Asset Forfeiture Reform Bill That Closes Federal Loophole, Adds Conviction Requirement
from the another-win-after-years-of-losses dept
After years of civil asset forfeiture abuse, legislators are finally fighting back. Reform bills have been offered up all over the country. Unfortunately, very few of them have made it to state governors' desks intact. The DOJ itself has played an integral part in thwarting true forfeiture reform, but legislators are also battling powerful police unions and a law enforcement lobby that needs to do little more than say the words "drug dealer" to convince fence-straddlers to come down on their side.
New Mexico's legislature passed one of the most stringent forfeiture reform bills in the nation, only to see it ignored by local police departments who viewed it as applicable only to state law enforcement agencies. We'll see if the same thing happens in California, where another significant reform bill has just become law. Nick Wing of the Huffington Post reports:
California Gov. Jerry Brown (D) on Thursday signed a bill into law scaling back a controversial practice that allows police in the state to permanently seize people’s cash and property without obtaining a conviction or even charging someone with a crime.
Not only does the law contain a conviction requirement -- something that should greatly reduce the amount of abuse -- but it closes a loophole law enforcement agencies love using to route around state-level restrictions.
Beginning Jan. 1, 2017, police departments in California will be largely prohibited from transferring seized property to federal agencies in order to sidestep state conviction requirements. The legislation forbids the transfer of property, like vehicles and homes, and specifically raises the threshold on cash seizures, requiring the government to obtain a conviction before permanently confiscating any amount under $40,000. (The previous cap was $25,000.) For larger cash seizures, authorities must provide “clear and convincing” evidence of a connection to criminal activity before taking the money for good.
These restrictions should create additional barriers against misuse. High-dollar seizures are the exception, not the rule. Law enforcement agencies don't rake in cash from a few large busts a year. The greatest portion of this "income" derives from dozens or hundreds of smaller seizures. The lower dollar amounts ensure agencies will hold onto more money more often. The cost of challenging a seizure is often more than the amount seized -- a fact many law enforcement officers are all too aware of.
Survey results from the Drug Police Alliance show civil asset forfeiture is fairly widespread, with around 10 percent of residents in a number of California counties reporting that they know someone who’s had property confiscated by police without being convicted of a crime. And forfeiture trends in California don’t appear to have changed much since 1992, when 94 percent of state forfeitures involved seizures of $5,000 or less. Adjusted to 1992 levels, the average value of a forfeiture in California in 2013 was just $5,145.
This law puts some due process back into the forfeiture system, preventing agencies from running a rigged game which pits the government against the property seized and doing everything it can to keep the rightful owner from raising objections.
Of course, law enforcement officials and representatives are already complaining that the bill will turn California into Mexico.
There’s also a broader belief that the new law will encourage the criminal element to do business in California.
“The fact is that when you’re dealing with transnational criminal enterprises, one of the crippling things that you can do is seize their assets out from under them,” said John Lovell, a lobbyist for the California Narcotic Officers’ Association. “And that can be, in many cases, more efficacious than jailing a few members of that cartel.”
Except that years of drug warring and asset forfeiture haven't done anything to reduce the flow of drugs into the country. This fact is conveniently overlooked every time law enforcement agencies try to defend taking a few thousand dollars from a motorist passing through the state. The agencies that benefit from forfeiture have almost no interest in securing convictions -- a much longer, more expensive process that involves making more effort than claiming to smell marijuana before helping themselves to any cash they discover.
Agencies are also complaining about expected budget shortfalls, and without any seeming awareness that this is a mess of their own making. Effective budgets don't allow for highly-speculative projections. Agencies have no way of knowing from year-to-year how much they can truly expect to obtain through asset forfeiture. But they pencil in amounts anyway, turning this amount into a goal to chase, rather than a possible surplus that should only be counted when -- and if -- it actually arrives.
by Karl Bode
Thu, Sep 29th 2016 8:20am
from the tax-ALL-the-things dept
Legal or not, Chicago's push to impose a Netflix tax has opened the floodgates.
Earlier this year, the Pennsylvania legislature expanded the state's 6% sales tax to cover digital downloads and subscription services like Netflix and Hulu -- but also music, e-books, apps, online games, and ringtones. And now Pasadena, California, has joined the fun, applying its own 9.4% tax on streaming video providers such as Netflix, HBO Go and Hulu. In fact, Pasadena is one of 46 total California cities that are rushing to embrace the tax to help shore up city budget shortfalls. But much like Chicago, there are a number of groups ready to sue over the move, claiming these cities don't have the authority:
"Jon Coupal, president of the Howard Jarvis Taxpayers Association, called the tax “very suspect.” The association’s legal team is currently investigating the legality of the new interpretation of the tax.Pasadena, however, says that city laws have always provided it with the authority to tax cloud-based services:
"We will be taking a very close look at this,” Coupal said. “If we determine this is an extension of an existing tax, then under the Constitution, they need voter approval. They can put as much lipstick on this pig as they want, but the pig is still a tax increase."
"Pasadena’s Finance Director Matthew Hawkesworth made his determination Thursday that the tax applies to video games and streaming services similar to cable “regardless of the content of such video programming, or the technology used to deliver such services,” according to a memo to City Manager Steve Mermell.The efforts to tax all cloud services are creating an absolute legal minefield over determining exactly where a cloud-based transaction is taking place, when to apply said tax, and who intends to collect it. Who pays sales tax when an app developer in New York relies on a cloud computing provider in New Jersey, and sells to customers in Illinois? Nobody appears to know and the answer may differ state by state. But one thing's for sure: lawyers certainly won't be going to bed hungry as cities rush to cash in on the rise of the internet video revolution.
"It’s our interpretation because of our code, these types of video services have always been eligible to be taxable," Hawkesworth said. "The administrative ruling is instructing the various companies that offer video service that the tax includes their services as well, and it will be incumbent upon them to collect the tax and remit it to the city."
by Tim Cushing
Mon, Sep 26th 2016 10:40am
from the way-to-solve-the-problem,-jackasses dept
Actress Junie Hoang may have lost her legal battle against IMDb for revealing her age, but the California Assembly is ensuring she'll win the war. Hoang sued IMDb for $1 million, claiming the publication of facts without her permission had resulted in her being a victim of Hollywood ageism. IMDb won the lawsuit, but Governor Jerry Brown has just signed a bill into law that will prevent sites like IMDb from publishing actors' ages.
California Gov. Jerry Brown on Saturday signed legislation that requires certain entertainment sites, such as IMDb, to remove – or not post in the first place – an actor’s age or birthday upon request.
The law, which becomes effective January 1, applies to database sites that allow paid subscribers to post resumes, headshots or other information for prospective employers. Only a paying subscriber can make a removal or non-publication request. Although the legislation may be most critical for actors, it applies to all entertainment job categories.
Quotes from actors' guild representatives and "industry leaders" present this as a positive change. Supposedly the removal of this information will result in fewer actors and actresses from being passed over for roles because they're "too old." Ageism may be an industry-wide problem but the correct solution would be to change Hollywood culture, not tap dance across the First Amendment.
“We are disappointed that AB 1687 was signed into law today,” said Internet Association spokesman Noah Theran. “We remain concerned with the bill and the precedent it will set of suppressing factual information on the internet.”
Michael Beckerman, the association’s president and CEO, also wrote in August for THR, about his opposition to the law.
“Requiring the removal of factually accurate age information across websites suppresses free speech,” Beckerman wrote. “This is not a question of preventing salacious rumors; rather it is about the right to present basic facts that live in the public domain. Displaying such information isn’t a form of discrimination, and internet companies should not be punished for how people use public data.”
That's the problem with this law: it shoots the messenger rather than addresses the underlying problem. The government as a whole has passed many laws aimed at reducing discrimination, but in this case, the California assembly decided the onus should be on data aggregators that have absolutely nothing to do with the process of casting films.
It's unlikely this law will survive a Constitutional challenge, seeing as it prohibits the publication of facts. While any website can voluntarily choose to withhold this information, adding the government into the equation makes it a form of censorship.
The crafters of this law are claiming this speech suppression will benefit the little guy (and girl) the most:
[California Assemblyman Ian] Calderon said the law was more for actors and actresses not as well known as big stars.
“While age information for Hollywood’s biggest stars is readily available from other online sources, this bill is aimed at protecting lesser known actors and actresses competing for smaller roles,” Calderon said in the release. “These actors should not be excluded from auditioning simply based on their age.”
Calderon is correct. Actors should not be excluded simply because of their age. But that's a problem studios need to solve. And if they can't and legislators like himself still feel compelled to step in, the law should target discriminatory hiring practices, not IMDb and other sites like it.
by Mike Masnick
Thu, Aug 25th 2016 2:31pm
from the well-that's-interesting dept
Partnering with transit agencies like MARTA is a core part of our vision to build a sustainable transportation network. By helping fill the first and last miles between a passenger’s home and a MARTA station, we’re making it easier than ever to ride transit. We believe that when transit is within reach of everyone, our cities are more liveable, connected, and prosperous.Of course, it's not entirely clear what's really involved in the "partnership" beyond marketing. Yes, Lyft is offering discount vouchers, but only for 10 rides. And you could already use Lyft or Uber to do this without the partnership.
Where this potentially gets more interesting is the decision of Dublin, California, to look to Lyft and Uber as a substitute for public transportation by subsidizing rides via those companies instead of taking a bus.
In a first for California, a public transit agency next month plans to begin subsidizing fares of people who take private Uber and Lyft cars to local destinations rather than riding the bus.The local transit authority is even suggesting that this might change the way they set up routes and serve certain communities. In fact, they've already killed off one (little used) bus route, suggesting that this new partnership can help replace that route more efficiently.
Passengers ordering Uber or Lyft car trips within two test areas of Dublin will be eligible to get door-to-destination service at a big discount under a partnership between the ride-hailing companies and the Wheels public bus system in Dublin, Alameda and Pleasanton.
I can see why this might annoy some people -- and certainly those who don't trust big private companies like Uber and Lyft are going to complain. Similarly the bus driver's union rep is apparently pissed off. But this is still a really interesting experiment. If it allows municipalities to truly offer better, more efficient transportation and it's cheaper overall, then is it really a problem that some companies might also make some profits from it? It will be interesting to see how this experiment in Dublin works out and if other cities follow suit. And it seems like a much better idea than what's happening in Massachusetts, where the government has instituted a special tax on Lyft and Uber... and giving that money to the taxi companies who didn't innovate.
by Tim Cushing
Fri, Aug 5th 2016 4:10pm
from the both-sides-of-the-judicial-coin,-all-in-one-federal-district dept
The fallout from the FBI's surreptitious bugging of county courthouses in California has coalesced into two motions to suppress -- with two very different outcomes. What makes this even more interesting is that both decisions were issued in the same judicial district.
Judge Phyllis Hamilton denied a motion to suppress last week. While she had concerns about the location of the bugs used in the FBI's investigation of property auction price fixing, she reached the conclusion that the recording of conversations that occurred in a public area did not violate the defendants' expectation of privacy. The decision hinted Judge Hamilton would be hard pressed to find any conversation in public -- no matter what attempts were made to prevent bystanders from listening in -- worthy of an expectation of privacy.
Judge Charles Breyer, however, has reached the opposite conclusion. Breyer dug deeper into the location of the recording devices and questioned whether the FBI was crossing a line by placing them in areas where privileged conversations might occur.
In a decision [PDF] handed down on August 1, Judge Breyer has tossed 200 hours of recordings made by the FBI on the grounds that the eavesdropping violated the defendants' expectation of privacy. (via Joe Mullin at Ars Technica)
The volume of oral communications is relevant to whether the speaker has a reasonable expectation of privacy, as is the proximity or potential of other individuals to overhear the conversation. The key inquiry here, however, “is not whether it is conceivable that someone could eavesdrop on a conversation but whether it is reasonable to expect privacy.” The evidentiary record here confirms that Defendants did not speak at a volume loud enough for an undercover agent or an FBI cooperator to overhear them. Feb. 11 Tr. at 155:7–12 (reflecting that the lead FBI agent testified that “the key observation made in the early part of the case” was that the cooperator and undercover agent “could not hear” Defendants’ conversations).
The Court thus finds no evidence in the record establishing that bystanders overheard the conversations surreptitiously recorded on the twenty-eight days in question; it does, however, find ample evidence in the record that bystanders could not overhear those conversations. See, e.g., Feb. 11 Tr. at 155:7–12. This factor thus supports a reasonable expectation of privacy.
Unlike Judge Hamilton's case, the defendants took active steps to avoid being overheard -- something that should have been expected, considering the presence of competitors hoping to acquire foreclosed property as cheaply as possible. Not only that, but the FBI testified that its undercover informant somehow managed to get booted from the inside circle, meaning that the government's own man had some idea bidders weren't loudly proclaiming their bidding strategies to all and sundry.
Away goes 200 hours of recordings -- a lot of which apparently captured stuff the FBI didn't care about. Along with it might go the rest of the evidence, if the court comes to the conclusion it's been tainted by the government's bugs.
The court concludes that zero expectation of privacy Judge Hamilton hinted at in her decision may be the new normal in the future, but we aren't there quite yet.
With continuing advances in technology, private conversations may become anachronistic rituals reducing intimate encounters to silent exchanges of notes. But that day has not arrived. Until it does, our Fourth Amendment protections should be defined by traditional circumstances. The Court concludes that Defendants had (1) a subjective expectation of privacy in the conversations recorded by the stationary microphones at the San Mateo County Courthouse, and (2) that expectation was objectively reasonable.
Whether or not efforts to carve out privacy expectations in public spaces will be successful appears to come down to the judge presiding over the case. Hamilton's decision made some scary assumptions about communicating in public areas, but she also had testimony and recordings showing the defendants she dealt with made less effort to keep their conversations secret than those in front of Judge Breyer. This may have been the key difference between the two cases, but Hamilton would have raised fewer privacy concerns if she hadn't expanded her thought process to declare that the privacy-less future Judge Breyer only hinted at has already arrived.
by Mike Masnick
Thu, Aug 4th 2016 4:14pm
Good Ruling In California Protects Anonymity Of Online Critics -- Even When The Information Was False
from the anonymity-is-important dept
We've written a lot in the past about the importance of protecting anonymous speech online, so it's good to see a good ruling in California protecting the anonymity of an online critic (found via Eriq Gardner's story at The Hollywood Reporter). The story involves an anonymous email that was sent to a Sony exec and a producer working on the movie Goosebumps, raising some issues about a visual effects company, named Vitality, doing work on the film. There's a lot of background here that can get confusing so I'll try to detail it here as simply as possible:
- A few years ago, a special effects house named Hydraulx did visual effect work on a Sony Pictures film, Battle: Los Angeles.
- At the same time, Hydraulx was producing an entirely separate (non-Sony) film Skyline that had some similar plot points (aliens invade LA).
- There was a fairly public dispute in which Sony accused Hydraulx of a variety of things stemming from this apparent conflict of interest. Eventually that dispute was settled.
- Sony and the producers of Goosebumps hired a visual effects company named Vitality to work on the effects in that movie.
I hoped I might whistle-blow on Vitality Visual Effects and Hydraulx. I was surprised to see ‘Goosebumps’ on Vitalitys [sic] IMDB as Vitality is co-owned by Greg and Colin Strause of Hydraulx and I thought neither you nor Sony had a good relationship with the Brothers after Skyline/Battle L.A.Separately, Hydraulx and the Strauses were already engaged in a defamation lawsuit against some anonymous critics who had sent emails to a movie studio that Hydraulx was working with, claiming that the company was on the verge of financial collapse. Perhaps thinking this new email was from the same, or a related, individual Hydraulx added this person "Doe 2" to that lawsuit and went about trying to discover who it was. Doe 2 filed an anti-SLAPP claim under California's (pretty good) anti-SLAPP law.
Vitality and Hydraulx share owners (Greg & Colin), their Exec Guy Botham works for both companies - Vitality and Hydraulx even share L.A. and Vancouver offices, hardware, and infrastructure.
If Vitality misinformed you or Sony as to its ownership or profit participants in any way, please take my email into consideration.
I am a concerned vfx professional whom, myself, has been burned by Greg and Colin and I do not like people perpetuating what I consider bad business practices.
Thank you for your time in reading. I hope this email helps.
A concerned VFX recruit.
A state trial court recognizing (correctly) that you can't reveal anonymous speakers without showing a prima facie case of defamation looked at the various statements in the email and determined that they were enough to show defamation -- and then ordered discovery to go forward to identify Doe 2. To establish the defamation case, there were statements from the various people behind Hydraulx and Vitality insisting that the Strause brothers had no ownership at all in Vitality (there are separate statements in the ruling suggesting that Hydraulx had sold its old equipment to Vitality, but it's never addressed if that's true or not) On appeal, the appeals court has rejected that pretty soundly, noting that a variety of points. But, most importantly, it finds that even though the statement about the same ownership may be false, that isn't enough to reveal an anonymous speaker.
The key to rejecting the defamation claim: most of the statements aren't actually about Hydraulx, but Vitality. On top of that, all of the statements can be seen as either statements of opinion or simply not defamatory at all. There's a big discussion on whether or not the use of the word "whistle-blow" implied some sort of criminal activity on the part of Hydraulx, but the court says it does not:
The trial court expressed a concern that “in the language of the law,” “whistleblower” implied Hydraulx engaged in criminal or wrongful conduct: “People don’t whistle-blow fun, nice things that are meaningless. People whistle-blow wrongdoing. . . . And the word whistle-blow . . . causes me to read it in a different light.” While we agree that, in the context of litigation, the term “whistle-blow” can imply an allegation of criminal or wrongful conduct, we must consider the word in the context of Doe 2’s emails and measure its use “not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of [the] reader.”...The court also notes that just because the common ownership of the two companies, even while false, is not defamatory:
The specific wording of the emails, and the order in which the information is communicated, are instructive. Doe 2 opened his emails with cautionary language, saying, “I hoped I might whistle-blow on Vitality Visual Effects and Hydraulx.”... The words “hoped” and “might” before “whistle-blow” signal that Doe 2 is using the term hyperbolically to introduce a communication of specific information that the recipients may not know. In context, the term explains why he is writing and introduces the information about Vitality and Hydraulx’s supposed shared ownership, which, in and of itself, is not defamatory.
Although Greg Strause’s and Bothman’s declarations were sufficient to make a prima facie showing of falsehood with respect to the statements associating Hydraulx with Vitality, the allegation of common ownership is not defamatory on its face and Hydraulx has not offered any extrinsic facts supporting a defamatory innuendo. To the contrary, because Hydraulx’s complaint and declarations portray both companies in a positive light, there is no indication that the inaccurate attribution of common ownership was defamatory.On top of that throughout the email, it's pretty clear that the individual is sharing information that he felt that producers/studio might not know, rather than making defamatory claims. Specifically, the emailer wasn't making new claims that were defamatory but calling attention to previously known information:
Hydraulx argues that Doe 2’s offer to “whistle-blow” and references to “bad business practices” and being “burned” imply a defamatory accusation Hydraulx engaged in dishonesty or wrongful conduct beyond the conflicts of interest addressed in the emails. We find that in context, the term “whistle-blow” was used hyperbolically to introduce the disclosed and non-defamatory allegation of common ownership and that Doe 2’s reference to “bad business practices” reasonably referred to the known or disclosed facts: Hydraulx’s Skyline conflict of interest and Vitality’s potential conflict if it failed to disclose common ownership. In context, the only reasonable interpretation of “bad business practices” is in reference to facts known to the recipients of the emails (Hydraulx’s prior conflict of interest) and facts disclosed in the emails (the false allegation of common ownership and Vitality’s potential conflict of interest involving Goosebumps .)Got that? Because the only bad behavior the emailer was referencing by Hydraulx was the already known dispute -- and the only false claim wasn't defamatory, there's no defamation here. Hydraulx isn't claiming that the original stories of conflict of interest around Skyline/Battle:LA are defamatory (because it probably can't), so it can't really say this is defamatory here.
Also hurting the defamation case -- the emailed discussions among the folks working on Goosebumps in response to these emails was basically that they didn't even believe it in the first place.
The court also finds that the phrase "bad business practices" is so broad and vague that it also cannot be found to be defamatory:
The same is true in this case because behavior one person regards as a “bad business practice” may be acceptable to another person and conduct causing one person to feel “burned” may not affect another person at all. Someone might regard something as trivial as failures to return telephone calls as “bad business practices.” Another person might use “bad business practices” to describe fraudulent or unlawful conduct. Similarly, a person might feel “burned” by any range of behavior, from a social snub to a fraudulent transaction. Without some reference to the type of undisclosed misconduct, e.g., “In my opinion, John Jones is a liar,” these comments are too vague and uncertain to be actionable as conveying a defamatory accusation.This is potentially an important ruling on a number of different levels. Sometimes we get so caught up in the "true/false" dichotomy that we don't step back and look at the bigger picture. Indeed, my first impression on reading through the ruling was that the email might, in fact, be defamatory because of the false claims of ownership in Vitality. It was only after walking through the court's careful reasoning that I realized that the court is right here. Just because that claim is false, that doesn't automatically make it defamatory. Defamatory speech needs to not just be false, but false and injure someone's reputation. In this case, the email was clearly trying to portray Vitality in a bad light (and, to a lesser extent, Hydraulx), but the statements making them look bad were either based on factual claims or statements of opinion. The only statement deemed as false didn't harm Hydraulx's reputation at all.
It's good to see the court take the time to carefully parse the email this way and break it out. This will provide more protections for anonymous online critics in the future as well.
by Tim Cushing
Tue, Jul 19th 2016 2:27pm
California Appeals Court Reaffirms Section 230 Protections In Lawsuit Against Yelp For Third-Party Postings
from the should-be-a-foregone-conclusion...-but dept
Section 230 is not completely screwed! A California appeals court decision has upheld Yelp's immunity to defamation claims, running contrary to findings in two other lawsuits recently decided that state. Eric Goldman has the background on the case.
The lawyer-plaintiff is Lenore Albert. Her Yelp page. She claims a former employee orchestrated a social media attack on her business, including posting fake disparaging reviews on her Yelp page plus this image (which she claims isn’t clearly demarcated as user content instead of Yelp-sourced content)...
Albert also claims that Yelp further screwed up her page when she refused to advertise with it. She sued Yelp for defamation, tortious interference and intentional infliction of emotional distress. The lower court granted Yelp’s anti-SLAPP motion. The appeals court affirmed.
After deciding that posted reviews were not commercial speech (which would not be covered by the state's anti-SLAPP statute) and of public interest (the plaintiff being a lawyer involved in foreclosure proceedings), the court moves on [PDF] to solidly stake out the extensive coverage of Section 230 protections for service providers.
Since Yelp is an internet service provider, it is immunized, under section 230 of the Telecommunications Act of 1996, for defamation contained in any third party reviews on a Yelp page pertaining to a given business. The case law on this point is conclusive…
All doubt is removed when we examine two of the most extreme cases illustrating the immunizing effect of section 230, Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096 (Barnes) and Carafano v. Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119. These cases involved more than simple defamatory third party comments. Rather, in both cases third parties were able to use a website to cast the plaintiff in a decidedly negative false light. In Barnes, the ex-boyfriend of the plaintiff posted revenge porn on the website. The court held the website itself was still immune under section 230. (Barnes, supra, 570 F.3d at p. 1103 [to hold the website responsible would be to treat it like a publisher in contravention of section 230].) And in Carafano, the court held a dating website could not be held responsible for a third party’s virtual impersonation of an actress on the site. Of course, section 230 certainly does not immunize third parties who actually write defamatory posts to a website. (E.g., Bentley Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418 [former tenant could be liable for postings on Yelp about landlord]), but the website itself is unreachable.
The court also dismisses several other accusations by Albert, noting that Yelp has never solicited defamatory/misleading reviews and acts in good faith to remove defamatory or misleading postings when notified. It also points out that Albert's claim that Yelp itself creates misleading/defamatory reviews is not supported by any available evidence.
The plaintiff has asked for the opportunity to amend her complaint (not a bad idea, considering every allegation was rebuffed), but the court points out that the anti-SLAPP statute would be completely useless if complainants were allowed to rewrite their pleadings in light of a court's decision.
As this court recently pointed out, when a complaint is attacked by an anti-SLAPP motion, it cannot be amended so as to add or omit facts that would take the claim out of the protection of the anti-SLAPP statute. In the instant case, the plaintiff sued the ubiquitous business review internet service Yelp, alleging three causes of action which are unmeritorious. On appeal she posits she might be able to amend to allege other causes of action, at least two of which, unfair competition and false advertising, might arguably have merit given the Second District’s recent decision in Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294 (Demetriades) [suit based on Yelp’s statements about itself].) But whether they have merit cannot be reached in this case. Given the rule against amendments to add or omit facts in anti-SLAPP cases, we must affirm the judgment based on the three causes of action actually alleged.
While the decision does affirm what's already assumed about Section 230 protections, it's good to see these protections reaffirmed -- especially given recent highly-questionable decisions emanating from that area of the country. Yelp will recover the costs of its appeal, and if Albert still has money to blow, she's welcome to sue the people who posted the negative material, rather than the website hosting it.
by Tim Cushing
Mon, Jul 18th 2016 11:46am
Australian Company Files Bogus Defamation/Trademark Infringement Lawsuit Over A Nine-Year-Old Blog Post
from the as-substance-free-as-a-bag-of-imported-air dept
We've seen plenty of bogus DMCA takedowns and legal threats issued in order to silence critics. Paul Alan Levy has gotten ahold of a weird, long-delayed lawsuit [PDF] filed by an Australian financier against an unknown blogger who wrote a single critical post about him nine years ago.
There is somebody on the other side of the Pacific Ocean who has a strongly negative perspective on Nicholas Assef, the head honcho at an Australian financial services firm called Lincoln Crowne – or at least, somebody held such views nine years ago. We know at least that much because, in 2007, an anonymous individual created a small Google blog, using the URL lincolncrowne.blogspot.com, and posted a “warning” urging people who were considering doing business with Assef and his company to do their due diligence first. And even though the blog is buried deep in the Google search results for someone entering a search using lincoln crowne as the search string (currently, it is on the tenth page of results), Assef is plainly rankled by this criticism.
How Assef came across this single post, floating in the internet backwater, is a mystery. But there it is. Before suing the Doe behind the single-post "blog," Lincoln Crowne tried suing Google for defamation in Australia, presumably to use local laws to route around Section 230 protections. It didn't work. Google briefly took down the blog post before restoring it.
Having failed in this attempt, Lincoln Crowne is now trying to sue the anonymous blogger, using a poorly-constructed lawsuit with more than a few deficiencies. It not only claims the content is defamatory, but that the defendant's URL is a violation of its trademark. It's a mess, which is somewhat surprising because the firm is being represented by lawyers who seem otherwise competent.
Levy provides more insight into the suit's multiple flaws.
The trademark claim is based on the proposition that use of the company name in the third-level domain for the blog constitutes infringement. The complaint asks the court to exercise supplemental jurisdiction over the defamation claim, which is based on the allegation that everything written in the blog is a lie (does that include “and” and “the”?). The defamation claim is a bit odd because the statute of limitations for defamation is only one year, and the suit was filed eight years after publication. And the trademark claim is even worse – the blog is simple criticism, without selling any rival products. and there is a Ninth Circuit decision on point: Bosley Medical v. Kremer (a case that I handled), saying that non-commercial gripe sites are outside the scope of the Lanham Act. And even if the site had some commercial aspect, what likelihood of confusion about source could be caused by a blog that is headlined BEWARE LINCOLN CROWNE & COMPANY and then “Warning Warning Warning - Nick Assef"?.
Those aren't the only problems. In addition to these spurious claims, the complaint also shifts targets in midstream. The defendants listed on the first page of the suit only include "Does 1-10." Out of nowhere, the lawsuit suddenly starts targeting Google.
Also odd is the fact that the default judgment order is sought against Google, which is not a party to the lawsuit and is not in default and which, in any event, could not have been sued for defamation. It is unclear whether plaintiffs have alerted Google to the fact that they are seeking an order from the judge directed at Google rather than at the anonymous blogger.
As Levy points out, this sort of thing is common in the Ninth Circuit, where many tech companies are located. Sneaky plaintiffs file against one party and then pepper their complaints with requests for default judgment against better-heeled corporations.
Not only that, but the Ninth Circuit seems to enjoy circling this particular bogus lawsuit drain -- much more so than Levy does.
I find it tiresome to have to keep going back to courts in the Ninth Circuit to make these arguments: once we win in a circuit, I prefer to preserve Public Citizen's scarce resources by moving on to other jurisdictions. But if nobody speaks up, the win becomes a dead letter and future lawyers then start citing the lower court decision in self-justification.
A bogus lawsuit -- running unopposed (as it were) -- can do just as much damage as a legitimate one. And this one is pure frivolity. Even if the long-expired statute of limitations on defamation claims is ignored, the trademark allegations are nothing for Lincoln Crowne's representation to be proud of. In order to demonstrate the "harm" a personal blog showing up 10 pages into a Google search is doing to its business, the company actually had to use "lincoln crowne blogspot" as its search terms to get anything incriminating to show up on the first page. As Levy notes, the likelihood of the average consumer adding the word "blogspot" to their search for Lincoln Crowne hovers at a steady 0%.
It wasn't until seven years after the offending post appeared that Lincoln Crowne showed any motivation to secure its own Blogspot-hosted blogs in an attempt to combat the single negative post it had come across, so it's not as if the company has faced an uphill battle against a determined blogger for nine years straight.
Either way, the likelihood of confusion is nil and the post itself -- even if considered defamatory -- isn't Google's problem (although the plaintiff would really like it to be) and dates back further than the statute of limitations can be stretched.
It's clear from the lawsuit that Lincoln Crowne is just hoping to stick Google with something by injecting wording that asks for the company to be held responsible should the actual Doe defendant fail to appear. That's not proper litigation. That's opportunism.
by Mike Masnick
Tue, Jun 28th 2016 11:45am
from the what's-up,-california? dept
Unfortunately, the appeals court has now sided with the state, and that means we've got more chipping away at Section 230. No one disagrees that Bollaert was a creep. He was getting naked pictures of people posted to his site, along with the person's info, and then had set up a separate site (which pretended to be independent) where people could pay to take those pages down. But there are questions about whether or not Bollaert could be held liable for actions of his users in posting content. Section 230 of the Communications Decency Act (CDA 230) is pretty damn clear that he should not be held liable -- but the court has twisted itself in a knot to find otherwise, basically arguing that Bollaert is, in part, responsible for the creation of the content. This is going to set a bad precedent for internet platforms in California and elsewhere.
The court, not surprisingly, relies heavily on the infamous Roommates.com ruling that also said that site didn't qualify for Section 230 immunity, because it asked "illegal" questions (about housing preferences), and since the site itself had asked those questions, it was liable for creating that "illegal" content. That's different than what happened with Bollaert's UGotPosted site, but the court works hard to insist the two are close enough:
Here, the evidence shows that like the Web site in Roommates, Bollaert created UGotPosted.com so that it forced users to answer a series of questions with the damaging content in order to create an account and post photographs. That content—full names, locations, and Facebook links, as well as the nude photographs themselves—exposed the victims' personal identifying information and violated their privacy rights. As in Roommates, but unlike Carafano or Zeran, Bollaert's Web site was "designed to solicit" (Roommates, supra, 521 F.3d at p. 1170, italics added) content that was unlawful, demonstrating that Bollaert's actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims. In that way, he developed in part the content, taking him outside the scope of CDA immunity.I can predict that this paragraph is likely to show up in a bunch of other cases. People are going to insist that lots of other platforms that include any form of structure will now be liable if any of the content based on that structure violates the law. That, again, goes directly against the clearly stated purpose of CDA 230. And it's likely to create something of a mess for internet platforms that regularly rely on 230.
The really crazy thing here is that earlier in the ruling, the court noted that it didn't even need to answer the Section 230 question because they already had enough info to support charges of action "with the intent to defraud." But then it answered the CDA 230 issue anyway, and did so badly. No one's going to feel sorry for Bollaert, who is a complete creep. But the wider precedent of this ruling is going to be dangerous and will likely show up in lots and lots of lawsuits against internet platforms going forward.