Tuesday, September 24, 2013

Another Reason Not to Trust Yelp

Yelp is suing a San Diego Law Firm for trying to rig its reviews.  Yes, you read that correctly, Yelp is suing a law firm for using staff and other friends of the firm to submit glowing review of the law firm.  How is that different than any other company who "works" the Yelp system? It is not.  However, according to the principal of the law firm,Yelp's lawsuit is really retaliation for the law firm having the audacity to sue Yelp in small claims court. 

The law firm obtained a $ 2,700 judgment against Yelp.  The basis for the breach of contract lawsuit was that Yelp apparently promised the law firm 1,200 impressions per month if the firm paid Yelp $540 per month.  According to the lawsuit, Yelp did not deliver the 1,200 impressions.  Although, the representative for Yelp claimed that the law firm did not understand how it measured such impressions and that Yelp actually "over delivered" on the ad impressions as promised.  A likely story, indeed.

Of course, Yelp is not only suing the law firm, it is also "filtering" all of the law firm's reviews.  According to several people posting on various blogs about Yelp, this is not an uncommon tactic for Yelp (i.e. to filter reviews when the company does not advertise with Yelp).  The small claims judge accurately, in my opinion, described Yelp's contract as "the modern-day version of the mafia."  I could not agree more. 

Tuesday, September 17, 2013

Judge Judy's Son Sues Local Sheriff for Defamation

Judge Judy's son, Adam Levy, is suing a local sheriff for defamation.  Mr. Levy is a District Attorney for Putnam County. Apparently, the sheriff said that Mr. Levy interfered in a child rape case.  According to the lawsuit, Mr. Levy is seeking $ 5 million to right this alleged wrong. 

The defamatory statement occurred in the context of a rape case against Mr.Levy's former personal trainer and friend, Alexander Hossu.  Mr. Hossu was accused of raping a 13-year-old girl.  Given the personal relationship between Mr. Levy and Mr. Hossu, Mr. Levy recused himself from the case.  However, in a news release, the sheriff said that Mr. Levy made comments and acted in such a way as to make clear that, if he had his way, Mr. Levy would not prosecute Mr. Hossu.  

In California, the elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.  California Civil Code section 45 defines "Defamation per se" or Defamation on its face as: "Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  Thus, in this case, the statements intimating that Mr. Levy was not doing his job appropriately or was trying to help his friend out by not prosecuting the matter may fall under this type of libel. 

As with almost all defamation claims, though, the problem comes in trying to balance one's First Amendment right to free speech against another's protection against defamation.  Pure opinions or statements that are true fall under the protection of the First Amendment.  Indeed, even false statements (even if unjustified or made in bad faith) which are statements of opinion rather than false statements of fact are not defamation.  

So, where is the line? Sometimes the line is very blurry. As in the case of Mr. Levy, was the local sheriff merely providing an opinion or were his statements those of fact?  Time will tell as the case rolls on, but in this day and age of instant communication, be very careful about what you say about others--it may just buy you a defamation claim. 

Wednesday, September 11, 2013

Prenda Law Firm Update

Updating a prior post about those erstwhile attorneys the Prenda Law Firm:  apparently, a recent Comcast document shows that John Steele uploaded the porn files to BitTorrent upon which it sought to extract payment from unsuspecting downloaders.  In other words, Prenda would upload the very files it sought to assert copyright protection for in order to share them with its targets.  The porn was the bait, BitTorrent was the hook, and Prenda was the fisherman.  If this sounds fishy to you, then it should.  By uploading the copyrighted material in order to "share" it, Prenda would essentially be impliedly licensing the material to those it threatened to sue for infringement. 

Monday, September 9, 2013

Update on Service By Facebook

A while ago, I wrote about Flo Rida being served a lawsuit by way of his Facebook Page.  Well, it appears as if Australia has reversed course and found that service by Facebook is not appropriate.  This matter all started when Flo Rida agreed to appear at a music festival, but then failed to show up or return the fee he received to perform at the music festival.  As stated in my earlier post, an Australian court found service of a lawsuit by Facebook upon Flo Rida appropriate.  However, recently an Australian appellate court found that service by way of Facebook was not proper, and therefore, the Australian courts did not have jurisdiction over Flo Rida.

In the United States, plaintiffs must serve most Summons and Complaints (lawsuit initiating documents) personally (i.e. have the defendant served in person).  There are some limited exceptions, but the idea is to ensure that the defendant is properly given notice of the lawsuit and to avoid "junk" service in an effort to obtain a default judgment. 

In ruling that service was not proper in this case, the Australian appellate court noted that a person's Facebook account is not reliable (i.e. calculated to provide the defendant actual notice).  For example, there is no way to guarantee that the person served via Facebook is the actual defendant (maybe it is a fan page or someone with the same name). 

In the United States, a New York Federal Court allowed service via Facebook just this last March.  Apparently, that judge was sufficiently convinced that the Facebook account belonged to the defendant in that case. 

The moral of the story?  Beware when checking your Facebook account, you may find more than your friend's status updates . . . you may find yourself haled into court.