Topic: Legal

Legal side of Reputation Management

White-on-White Trademark Usage Might Constitute Initial Interest Confusion–Agdia v. Xia 0

Are we really litigating trademark references in white-on-white text in 2017??? Yes, we are, and yes, the whole case is a throwback to the mid-2000s (e.g., the 2008 Venture Tape case)–with effects that would be comical if they weren’t so sad.

The litigants compete in the “plant diagnostics” business. Agdia’s tagline: “Keeping your crops happy…it’s our passion.” Agdia claims the defendant, in 2007, put the Agdia trademark in white-on-white text on over 200 pages. This is an archaic practice; Matt Cutts disparaged it at least as early as 2005. Google has long configured its algorithms to ignore white-on-white text, making the practice ineffectual as well as risky to search engine indexing. Agdia claims the defendant’s website was still showing up for its branded organic searches as late as 2015, which the court implicitly attributes to the white-on-white text though the court doesn’t really seem to know why…or care. The defendant adopted the business name ACD and a domain name acdiainc.com, and did some comparative advertising against an Agdia product brand name, and Agdia doesn’t like these practices either.

Despite the allegation that white-on-white text was implemented in 2007, the court doesn’t discuss any statute of limitations. That’s because the Lanham Act doesn’t have a statute of limitations, though sometimes a statute of limitations is imported from analogous legal doctrines; and courts often use laches instead. The upshot is that, yes, in 2017 we are litigating over an archaic practice that started in 2007. Sigh.

The court denies the defendant’s motion for summary judgment. A few “high”lights from the court’s multi-factor likelihood of consumer confusion analysis:

* in considering the manner of concurrent uses, the court says “Because users can easily navigate through websites, as opposed to physical store locations, it is “more likely” that consumers will “be confused as to the ownership of a web site than traditional patrons of a brick-and-mortar store would be of a store’s ownership.”” Citing a case from 2001, naturally.

* regarding consumer sophistication, the litigants compete in a B2B industry with highly specialized customers. Still, the court says “while accomplished in the area of agricultural science, that does not automatically make these customers website coding experts nor instill in them the ability to identify whether their internet searches are yielding manipulated results.” I guess if you haven’t coded your own perl script, you’re a clueless web browser.

* the plaintiff doesn’t have any evidence of actual confusion, so it relied on the initial interest confusion doctrine. Blech. The court starts off on the right foot:

Asserting initial interest confusion does not alter the likelihood of confusion analysis. More specifically, to create an issue of fact here as to whether there was any actual confusion, the record must contain evidence that initial interest confusion actually occurred – not merely theories that would create a risk of initial interest confusion

Right, except plaintiffs never can provide credible evidence of initial interest confusion; and the uncited Lens.com case from the 10th Circuit set an evidentiary bar so high that no plaintiff can ever meet it. So this factor should swing decidedly in the defendant’s favor. Yet this court continued:

Plaintiff has presented evidence of a search engine user being diverted to ACD’s website upon running a Google search for an Agdia product in January 2015. ACD’s website showed up on the second page of a search yielding over 1,000 results. Thus, a reasonable factfinder could determine that initial interest confusion actually occurred related to the Agdia mark.

FFS. Really? The court says that a competitive website appearing in the organic search results, without any evidence that any potential customer actually clicked on the link, constitutes credible evidence of “diversion”? As I explained in this expert report, and as the Lens.com case expressly held, an organic search result cannot constitute “diversion,” period. There’s also the awkwardness of counting a Google search from over 2.5 years ago as credible evidence, the irrelevance of results that appear only on the second page of SERPs, and the fact that the entire initial interest confusion doctrine is a POS.

In a footnote, the court further discusses the white-on-white text issue:

Defendants repeatedly argue against the application of this Circuit’s seven-factor likelihood of confusion test because customers never “saw” the white-on-white text with their naked eyes. This argument fails. First, to say that the white-on-white text was totally invisible to customers is somewhat inaccurate. Plaintiff notes that, when pages containing this text are printed on paper, or even when a computer user performs a “Control + F” find function on the webpage, the white-on-white text indeed reveals itself. Second, the white-on-white text, a type of metatag, need not be visible to the naked eye in order to have its intended effect; clearly it is visible to the public via search engine technology that directs potential customers to various websites. Defendants offer no substantive authority to support their invisibility theory, and the few cases they do cite miss the mark.

Both parties’ experts agreed that white-on-white text was ineffectual, so this passage reminds me of a venerable online trademark koan: if a trademark tree falls in a forest and no one is around to hear it, does it constitute trademark infringement?

This is the second time in a week that I’m blogging on rulings that repeatedly cited the antiquated and still pernicious Seventh Circuit ruling in Promatek v. Equitrac (the other is the Harley Davidson v. SunFrog case). The Seventh Circuit has issued other–and better–initial interest confusion rulings, so the jurisprudential shadow being cast by Promatek continues to muck up Seventh Circuit trademark law. I hope one day the Seventh Circuit cleans out that mess, just like how the Ninth Circuit substantially cleaned up its junky online trademark law in its 2011 Network Automation ruling.

Meanwhile, if you/your clients’ websites still include competitors’ trademarks in white-on-white text, (a) you probably should upgrade your website to the 2010s, and (b) clean it out. White-on-white text is nothing but liability bait.

Case citation: Agdia, Inc. v. Xia, 2017 WL 3438174 (N.D. Ind. Aug. 10, 2017). The complaint.


Source: Eric Goldman Legal

LinkedIn Enjoined From Blocking Scraper–hiQ v. LinkedIn 0

Screen Shot 2017-08-15 at 7.22.20 AMhiQ Labs has scraped LinkedIn public profiles for several years. hiQ offers two products, entirely predicated on LinkedIn-scraped data: (1) a prediction to employers which employees were mostly likely to be recruited away, and (2) a summary of employee skills.

LinkedIn sent a cease and desist letter telling hiQ to stop scraping or face litigation. The parties tried to resolve the dispute but were unable to. hiQ then filed a preemptive lawsuit seeking declaratory relief, and sought a preliminary injunction allowing it to access public LinkedIn profiles pending resolution of the dispute.

It was a bold move–and it paid off, at least for the moment.

Judge Chen granted hiQ’s request for an injunction, meaning that it can continue to aggregate information from public LinedIn profiles. While an appeal is inevitable, the order has a lot of language that open internet advocates will like.

Privacy concerns: In the balance of harms analysis, LinkedIn asserted its users’ privacy concerns, saying that hiQ’s scraping threatened its users’ privacy. The court is not persuaded. LinkedIn cited its ‘do not broadcast’ feature, which 50M users have adopted, that restricts the publicizing of changes to users’ profiles. The court says there could be many reasons why users would utilize the ‘do not broadcast’ feature other than for privacy. LinkedIn also distinguished between hiQ’s scraping and LinkedIn’s data sharing services, which LinkedIn discloses in its privacy policy. The court is skeptical that the privacy policy actually reflects reasonable privacy expectations because users don’t read such policies. Finally, the court says that LinkedIn’s assertion of users’ privacy concerns seems duplicitous: “LinkedIn…trumpets its own product in a way that seems to afford little deference to the very privacy concerns it professes to be protecting in this case….LinkedIn’s own actions do not appear to have zealously safeguarded those privacy interests.”

The CFAA: Regarding the CFAA, the big question is whether LinkedIn’s cease and desist letter expressly revoked hiQ’s permission to access the site. In craigslist v. 3Taps, Judge Breyer said yes. Judge Chen takes a different tack. Examining Nosal II and Power Ventures, the court says that those cases deal with password-protected information—neither of those cases, which allowed unauthorized access claims based on access following express revocation of permission, involved publicly available information. Judge Chen comes back to the CFAA’s purpose and says it “was not intended to police traffic to publicly available websites on the Internet.” He likens LinkedIn’s publication of its data to a business displaying “a sign in a storefront window” which “it may not prohibit on pain of trespass a viewer from photographing [the sign]…or viewing…with glare reducing sunglasses.” He agrees with hiQ that interpreting the CFAA in a manner urged by LinkedIn would “expand its scope well beyond computer hacking.” Judge Chen says it’s problematic because such revocation could obscure things like discrimination or (more apropos in this case) anti-competitive conduct.

Among other relief, the court grants hiQ relief against LinkedIn for implementing any technological barriers. The order directs LinkedIn to roll back any such barriers to the extent they’ve been implemented.

California Constitution (Pruneyard) Claim: The court also is sympathetic to hiQ’s argument that LinkedIn, as a publicly available website, is the Internet-equivalent of a modern shopping center. California’s constitution limits the rights of some property owners to exclude people. Specifically, in Pruneyard, the California Supreme Court found that a shopping mall owner could not exclude those wanting to enter to engage in political speech. The court notes that no court has extended Pruneyard to the internet “generally”. The court says the analogy between the shopping mall and the internet is “imperfect” and there are numerous line-drawing problems that will likely come up. The court concludes that the sweeping implications of hiQ’s argument and the lack of authority weigh in LinkedIn’s favor on this point.

UCL claim: The court also considers hiQ’s claim that LinkedIn revoked its access for improper purposes. Specifically, hiQ made an anti-trust claim that LinkedIn was leveraging its power in the professional networking market to secure an advantage in the data analytics market. The court says this claim is likely viable. hiQ plausibly asserts LinkedIn is the dominant player in the networking space, that LinkedIn’s competing against hiQ in the data analytics space, and that LinkedIn shut off access to hiQ in order to quash its product.

Other arguments: The court rejects hiQ’s promissory estoppel claim and declines to rule on its First Amendment arguments (based on the doctrine of constitutional avoidance).

__

This is a blockbuster ruling and has the potential to reshape internet law doctrine in many key respects.

Judge Chen’s CFAA ruling diverges from Judge Breyer’s ruling in the 3Taps case, where Judge Breyer found that craigslist effectively revoked access and set up a CFAA claim by sending a cease and desist letter. It’s tough to characterize the two decisions as anything other than directly conflicting.

As mentioned above, there is a lot of language that open internet advocates and researchers can get excited about in this order. Consider the language below in Judge Chen’s conclusion:

at issue is the right to receive and process publicly available information. In view of the vast amount of information publicly available, the value and utility of much of that information is derived from the ability to find, aggregate, organize, and analyze data . . . conferring on private entities such as LinkedIn, the blanket authority to block viewers from accessing information publicly available on its website for any reason, backed by sanctions of the CFAA, could post an ominous threat to public discourse and the free flow of information promised by the Internet.

This almost looks like it was written by an EFF lawyer.

The fact that Judge Chen actually prevented LinkedIn from implementing technological measures, and did so relatively casually, is somewhat jaw-dropping. Does this mean that LinkedIn cannot rate-limit hiQ, or decide it wants to implement robots.txt?

The court alludes to the fact that LinkedIn had been “tolerating” hiQ’s access for “years.” Unfortunately, the ruling does not provide many additional details about this and this fact also does not figure centrally into the ruling, although it undoubtedly influenced the court’s view of the equities.

LinkedIn’s privacy arguments rang hollow. It appeared to have scant actual complaints regarding the practices in question. More importantly, LinkedIn appeared to be talking outside of both sides of its mouth when it came to privacy. This is something the big social networks have to contend with. In fact, a particularly interesting aspect of Judge Chen’s ruling is how he used LinkedIn’s own arguments against it. In a privacy case against LinkedIn, LinkedIn argued that it was using publicly available information to encourage users’ contacts to join LinkedIn. (See my blog post on that ruling: “Email Harvesting: Repeated Emails From LinkedIn May Violate Publicity Rights.”) Judge Chen says that similarly, hiQ is merely accessing information that users have “chosen to make public.” The networks walk a fine line with it comes to issues such as privacy and the First Amendment, and this case is a great illustration that very often their arguments in one case can be used against them in another.

I was surprised to see discussion of LinkedIn’s user agreement relegated to a footnote. hiQ had to agree to it in order to set up its page (which Judge Chen notes LinkedIn disabled). While the court notes that hiQ’s aggregation wasn’t “dependent” on the user agreement, couldn’t the restrictions in the agreement arguably bind hiQ on a forward looking basis? Perhaps this would be viewed as overreaching but that’s how this question would normally be approached as a matter of contract doctrine.

It was also surprising to see little or no discussion at all of robots.txt and LinkedIn’s behavior with respect to search engines generally. The players in the internet have a generally accepted understanding, even a norm, of when crawling by search engines is appropriate. It would have been useful to see discussion of LinkedIn’s treatment of crawling generally and what parts of its site it allowed the search engines to crawl. The networks also walk a fine line here, always being interested in search-directed traffic, but at the same time, opening themselves up to the argument that if something is open to being crawled by a general purpose search engine, it should also be allowed to be crawled by a vertical one.

The biggest blockbuster is probably Judge Chen’s conclusion about the likelihood of success on the antitrust-based unfair competition claims. Antitrust arguments against the big networks are perennially bandied about (see, for example this New York Times Opinion piece), but they have rarely gotten any traction in court. (Facebook recently settled a case brought by a gaming company alleging that Facebook used its monopoly power to obtain benefits as a purveyor of virtual currency.) The part of Judge Chen’s order that is probably getting the most attention in LinkedIn’s legal department (and those of others) are the pages where he says hiQ could plausibly state an antitrust claim. (Given that Microsoft owns LinkedIn, there may be heightened sensitivity to this point.)

This is a big win for hiQ. But it will not be the last word, given that it will undoubtedly be appealed.

Eric’s Comments:

* I agree with Venkat that this is a blockbuster ruling, because it conflicts with numerous precedents and because (if it survives on appeal) it would significantly reshape the expectations of many web publishers and other website operators. However, I would be shocked if this ruling survives any appeal intact, so the chaos this opinion creates may be short-lived.

* I was confused about how the court distinguished Power Ventures. It’s true that Power Ventures used the login credentials of Facebook users, but the court flatly says “none of the data in Facebook…was public data.” I’m pretty sure this is just wrong. Facebook users can make some or all of their profiles publicly available, so surely some of the data gathered Power Ventures had been “public” data….?

* The opinion doesn’t mention what, if any, APIs or datafeeds LinkedIn offers. In the Power Ventures case, the availability of Facebook’s API seemingly helped its case because it was clear Power Ventures was skirting Facebook’s API rules. On the other hand, making an API available confirms that a site’s data protection efforts have nothing to do with protecting users’ privacy, thus mooting one of LinkedIn’s key arguments in this case. Still, I wonder how this case looks different if LinkedIn offered an API subject to various limitations.

* Oral arguments were done by heavyweight litigators who surely cost the parties a lot of money: Prof. Laurence Tribe of Harvard Law for hiQ; former Solicitor General Donald Verrilli for LinkedIn. In this clash of the giants, score one for Prof. Tribe.

* It’s interesting that the seminal case in online trespass, Intel v. Hamidi, isn’t mentioned once. That opinion dealt with a lot of the same policy issues as this case (but 15 years ago!), including much of the stuff the court explores by reviewing Prof. Orin Kerr’s work. The even-earlier eBay v. Bidder’s Edge, also an ND Cal opinion and also a case involving significant anti-competitive issues, didn’t make an appearance either.

* Similarly, the court’s offline analogy was explored some in the Hamidi case. It is, as usual, terrible:

An analogy to physical space, while inevitably imperfect when analyzing the digital world, may be helpful. With respect to a closed space (e.g., behind a locked door which requires a key to pass), the Court intuitively understands that where an individual does not have permission to enter, he would be trespassing if he did so. Even if the door is open to the public for business, the shop owner may impose limits to the manner and scope of access (e.g., by restricting access to a storage or employees-only area). But if a business displayed a sign in its storefront window visible to all on a public street and sidewalk, it could not ban an individual from looking at the sign and subject such person to trespass for violating such a ban. LinkedIn, here, essentially seeks to prohibit hiQ from viewing a sign publicly visible to all.

[in a footnote, the court continues:] To take the analogy above another step, when a business displays a sign in a storefront window for the public to view, it may not prohibit on pain of trespass a viewer from photographing that sign or viewing it with glare reducing sunglasses.

FFS. First, of course there’s no real property trespass when there is no physical encroachment on the retailer’s premises. See, e.g., every First Year Property course. Second, and more importantly, viewing or taking a photo of a sign through a window consumes absolutely zero scarce resources of the retailer. Viewing content–even that intended for public consumption–DOES consume scarce resources of the website operator, i.e., the server’s processing power, electricity and Internet connectivity. To me, that’s fatal to the analogy. Warning to my Internet Law students: bogus offline analogies, even accompanied a disclaimer that the analogy will be terrible, are a fast track to getting an opportunity to repeat my course.

* Like Venkat, I’m curious why there was no discussion about contracts a la Register.com v. Verio and its stupid “continuing to take benefits knowing there were terms attached which had been communicated in a C&D letter” (and don’t forget the case raised huge competition concerns). I’m also curious why there was no discussion about common law trespass to chattels or copyright.

* The court’s discussion of the First Amendment includes this passage:

Because the Court rejects LinkedIn‟s interpretation on the grounds discussed above, it need not reach hiQ’s First Amendment arguments.

Yet, despite this declaration that it need not keep talking, the court keeps talking…

LinkedIn is not a state official or governmental agency; it is a private party and there is no evidence that the CFAA has served to compel or encourage LinkedIn to withdraw hiQ‟s authorization to access its website.

So far so good. But then…

because the act of viewing a publicly accessible website is likely protected by the First Amendment [cite to Packingham], the doctrine of constitutional avoidance might well be properly considered in interpreting the CFAA, even if the First Amendment were not directly implicated in this particular case….The doctrine of constitutional avoidance, if applicable, would substantiate the Court’s doubt about the applicability of the CFAA to hiQ’s conduct.

What does that even mean?

Also, I’m going to blog another case citing Packingham for the plaintiff soon. Collectively, it looks like some courts are reading Packingham to enshrine a general purpose right of users to get content without restriction on the Internet–which would be an interesting and potentially far-reaching implication of the ruling.

* The court’s discussion about antitrust should send chills down the spines of Facebook and Google. They leverage their data advantages to compete effectively in multiple markets.

[Note: the picture above is from hiQ’s website which has a page devoted to this case (“Our Commitment to Privacy, Free Speech and Fair Use“).]

Case citation: hiQ Labs, Inc. v. LinkedIn, 17-cv-3301-EMC (N.D. Cal. Aug. 14, 2017).

Related posts:

Scraping Lawsuit Survives Dismissal Motion–CouponCabin v. Savings.com

QVC Can’t Stop Web Scraping–QVC v. Resultly (Forbes Cross-Post)

Multiple Listing Service Gets Favorable Appellate Ruling in Scraping Lawsuit

Anti-Scraping Lawsuits Are Going Crazy in the Real Estate Industry (Catch-Up Post)

College Course Description Aggregator Loses First Round in Fight Against Competitor in Scraping Case — CollegeSource v. AcademyOne

Anti-Scraping Lawsuit Largely Gutted–Cvent v. Eventbrite

Interesting Database Scraping Case Survives Summary Judgment–Snap-On Business Solutions v. O’Neil

Facebook Gets Decisive Win Against Pseudo-Competitor Power Ventures — Facebook v. Power Ventures

Power.com Up For Auction — Facebook v. Power Ventures

Power.com Counterclaims Dismissed — Facebook v. Power Ventures

Judge Denies Facebook’s Request for Judgment on the Pleadings and Strikes Power.com Counterclaims — Facebook v. Power.com

Craigslist Wins Routine But Troubling Online Trespass to Chattels Ruling in 3Taps Case (Catch-up Post)

Craigslist’s Anti-Consumer Lawsuit Threatens to Break Internet Law–Craigslist v. 3Taps/Padmapper (Forbes Cross-Post)


Source: Eric Goldman Legal

How Section 230 Helps Sex Trafficking Victims (and SESTA Would Hurt Them) (Guest Blog Post) 0

by guest blogger Alex F. Levy

[Eric’s introduction: Alex Levy teaches Human Trafficking and Human Markets at Notre Dame Law School. She has written a timely and provocative article, The Virtues of Unvirtuous Spaces, about Backpage and online sexual commerce.

A sample of the article: “allowing Internet platforms on which sexual services are brokered to thrive may be key to apprehending traffickers and recovering victims….it is nonsensical to hold Backpage accountable for what traffickers do with it (engage in sex trafficking) but to simultaneously refuse to credit it for what law enforcement does with it (apprehend traffickers and recover victims).” This passage also stood out:

The war on Internet platforms is pageantry: a kind of theater designed to satisfy people’s need to identify and fight bad guys without regard to nuance or long-term outcome. But from a tactical standpoint, it is more than a distraction. Censoring these platforms means forfeiting a resource that naturally facilitates the recovery of victims.

I recommend the article to anyone who is interested in the topic.

While it’s clear that the proposed Stop Enabling Sex Traffickers Act of 2017 poses significant risks to free speech online, I think we should initially focus on SESTA’s efficacy. Will SESTA actually advance its goals? If the bill doesn’t help victims–or worse, hurts them–then it is bad policy, period, and we don’t even need to reach the collateral consequences it would also create. Sadly, the empirical support that SESTA will help sex trafficking victims is thin or non-existent. In this post, Alex explains how SESTA may *hurt* sex trafficking victims–which should make the bill a non-starter. ]

***

When courts first tackled the question of whether internet intermediaries should be held accountable for material they publish, they struggled to come up with the right analogy. Were computer networks more like bookstores, or like newspapers? Should they be treated like real property, like common carriers, like radio stations, or as something else altogether?

Congress finally addressed the issue in 1996. It found that the nature of the Internet called for an entirely new regulatory approach. Encouraging the proliferation of “political, educational, cultural, and entertainment services,” while minimizing the spread of “lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material, required careful consideration of what, exactly, online intermediaries were in a position to do.

Congress was aware — adamant, even — that information shared on the Internet would need to be constrained in some way. But it was also aware that computer networks weren’t the right ones to do the job. If intermediaries were burdened with potential liability for all the speech they published, they’d only be able to publish as much as they could screen. So instead, Congress decided “to maximize user control over what information is received by individuals, families, and schools,” to “empower parents to restrict their children’s access to objectionable or inappropriate online material,” and to “ensure vigorous enforcement of Federal criminal laws.” By passing Section 230, Congress entrusted a significant part of the regulation of the Internet to users, parents, and law enforcement.

More than two decades later, Section 230 allows people to do more than just set the terms of acceptable speech. It also empowers countless users — including the FBI, victim advocates, concerned citizens, family members, and nonprofit organizations, among others — to proactively fight atrocities such as human trafficking. By removing liability from internet intermediaries (such as Backpage), Section 230 enables intermediaries to serve as a natural pathway between victims and those who want to help them.

Due to its wide accessibility, Backpage has enabled people to find and recover family members (including with the help of journalists); nonprofits point to it as a resource for identifying and reaching out to victims; and scores of criminal indictments reveal its value as a point of connection between police and victims. Statistics also show how Section 230 may assist the fight against human trafficking: the National Center for Missing and Exploited Children (NCMEC), among others, reports that the majority of child sex trafficking reported to them involve Backpage.

None of this should be surprising: after all, it stands to reason that victims whose services are advertised in more visible places, like Backpage, are more visible to everyone — and thus easier to recover. In this way, Backpage sets a trap for traffickers: lured by the prospect of reaching a large, centralized repository of customers, traffickers end up revealing themselves to law enforcement and victim advocates. There’s nothing to suggest that Backpage causes them to be victimized, but plenty of reason to believe that, without it, they would be much harder to find. Section 230 allows Backpage to serve as a lifeline between trafficking victims and those who want to usher them to safety.

***

Nevertheless, the story is often told differently, with Backpage cast as a bad actor. The same advocates who talk about finding victims on Backpage often blame Backpage for their victimization, despite the fact that there’s no evidence of a causal connection between Backpage and sex trafficking (and indeed, there are good reasons to doubt that sex trafficking has skyrocketed in recent years, as many dramatically claim). But according to their version of the narrative, the fact that trafficking victims tend to turn up on Backpage means that Backpage is to blame for their harm — but, confusingly, not their recovery.

These advocates note, correctly, that Section 230 is crucial to Backpage’s functioning. The reason that Backpage can shine a light on human trafficking is because, thanks to Section 230, it can’t be punished for what it merely reveals. It’s crucial to note, however, that Backpage is legally accountable for what it does. Not only does Section 230 explicitly state that nothing about it “shall be construed to impair the enforcement of…any…Federal criminal statute,” but Congress specifically expanded human trafficking laws in 2015 to prohibit knowingly advertising (or knowingly benefitting from one who knowingly advertises) human trafficking. That’s all to say that if Backpage is trafficking people — or knowingly advertising human trafficking — the DOJ already has all the tools it needs to prosecute it.

But while Backpage isn’t allowed to traffic people, Section 230 currently prevents it from getting in trouble for shining a light on human trafficking. That’s the crucial distinction at the heart of Section 230, and it’s the provision that proves most infuriating to those who insist that causing victims to disappear from Backpage is going to somehow return them to safety. Because of Section 230, people who try to sue Backpage for simply revealing trafficking have been unsuccessful (if they could show that Backpage had engaged in trafficking, their suits would not be dismissed).

In order to get trafficking victims to stop appearing on Backpage, these advocates call for legislation to limit its Section 230 protection. Their most recent move is the “Stop Enabling Sex Traffickers Act of 2017” (“SESTA”), introduced in the Senate in early August. Among other things, SESTA would allow people to directly sue Backpage (and other intermediaries) for damages for human trafficking — even if Backpage didn’t do anything more than shine a light. If this passes, Backpage’s rational response would be to shut down its dating ads, and maybe even more. (Its “escort” section already shut down, months ago, but, as one journalist remarked, and as any quick search of Backpage will tell, commercial sex ads migrated to “casual encounters” immediately afterwards.)  In other words, it will be forcing Backpage to censor its content, and causing traffickers to bring their victims to darker places. It is far less likely that family members, journalists, and nonprofit organizations will know where to find them when they do.

In my recent article entitled The Virtues of Unvirtuous Spaces, I wrote:

Backpage’s usefulness to antitrafficking advocates is, in fact, fully compatible with a profit-seeking approach. This is because Backpage’s value to traffickers as a means of gaining more customers and its value to law enforcement as a means of accessing and recovering more victims rise and fall together. Put differently, traffickers and law enforcement assess the value of Backpage with reference to the same characteristics, namely, accessibility and visibility of ads.

While more visibility invites more business, it also increases the possibility that victims will be discovered by law enforcement, or anyone else looking for them. By extension, it also makes it more likely that the trafficker himself will be apprehended: exposure to customers necessarily means exposure to law enforcement. This is true with respect to both the number and content of the posts. Any attempts to evade law enforcement will likely reduce profits; if traffickers avoid posting pictures of their victims’ faces, for example, their chances of attracting customers—who value information about the provider’s appearance—also drop.

Section 230 doesn’t cause lawlessness. Rather, it creates a space in which many things — including lawless behavior — come to light. And it’s in that light that multitudes of organizations and people have taken proactive steps to usher victims to safety and apprehend their abusers.

SESTA wouldn’t make Backpage more accountable for what it does — it already is subject to the same criminal laws as the rest of us, and courts have held that its civil immunity is limited to its functions as a publisher. What SESTA would do is make Backpage accountable for what it reveals. This would ultimately force Backpage to turn off the light, which, of course wouldn’t reduce trafficking; it would just shuttle it out of view. And it’s especially dangerous to confuse a problem’s disappearance with its resolution when, as here, it’s visibility that often leads to victims’ recovery.


Source: Eric Goldman Legal

How to Identify (and Remove) Fake Online Business Reviews 0

Are Fake Online Reviews Hurting your Business? Find out what you can do about it.   What to do if your Business is being Attacked by Fake Reviews The Internet has become an essential part of our lives. Almost everything we do is connected to the Internet in some way or another. When people want […]

The post How to Identify (and Remove) Fake Online Business Reviews appeared first on Defamation Removal Law.


Source: Aaron Minc

LinkedIn Connection Request Doesn’t Violate Non-Solicitation Clause—Bankers Life v. American Senior Benefits 0

Screen Shot 2017-08-13 at 8.15.42 AMThis is another case considering when LinkedIn activity violates a non-solicitation clause. Bankers Life, a company that sells insurance and financial products, sued one of its ex-employees (and his new employer, ASB) alleging among other things that the ex-employee violated his non-solicitation covenant through his communications on social media. Here’s the clause defendant Gelineau agreed to:

During the term of this Contract and for 24 months thereafter, within the territory regularly serviced by the Manager’s branch sales office, the Manager shall not, personally or through the efforts of others, induce or attempt to induce:

(a) any agent, branch sales manager, field vice president, employee, consultant, or other similar representative of the Company to curtail, resign, or sever a relationship with the company;

(b) any agent, branch sales manager, field vice president or employee of the Company to contract with or sell insurance business with any company not affiliated with the company, or

(c) any policyholder of the company to relinquish, surrender, replace, or lapse any policy issued by the company.

Gelineau’s alleged violation? He sent LinkedIn requests to three Bankers Life employees who could “then click on to Gelineau’s profile and . . . see a job posting for ASB.” Bankers Life also alleged that Gelineau instructed another ASB employee to solicit Bankers Life employees, but the court found Bankers Life’s evidence insufficient with respect to this claim.

In response to the argument that the LinkedIn requests sent by Gelineau violated his non-solicitation clause, Gelineau says that he never sent any direct messages to any of the Bankers Life employees:

Instead, Gelineau stated that all of the individuals on his e-mail contact list were sent LinkedIn generic e-mails asking them to form a professional connection on social media.

The trial court granted summary judgment to Gelineau on this point, and the appeals court affirms. The court looks to other cases dealing with social media communications that allegedly violate non-solicitation clauses and finds that the content and substance of the communications control. A general posting to connect or an announcement about a job change when announced to a network will not suffice to violate the typical non-solicitation clause. The court says in this case the emails were “generic” and contained no discussion of Bankers Life or of ASB or an exhortation to view the job announcement in question. “Instead, the e-mails contained the request to form a professional networking connection.” In addition, they were not direct messages and were merely communications that were sent to all individuals on Gelineau’s contact list.

This case is a nice complement to the Mobile Mini case I blogged about last month. There, the posts in question were essentially sales pitches, and the court says they likely violate the non-solicitation clause, whether sent as direct messages or not. Here, the LinkedIn messages had no call to action other than to connect. So it’s not unexpected that the court finds there is no violation.

It’s surprising to see an employer think that a generic “let’s connect!” email campaign could violate a non-solicitation clause. But Bankers Life did, and the court rightly shut it down.

Case citation: Bankers Life and Casualty Company v. American Senior Benefits LLC, et al., 2017 IL App (1st) 160687 (Aug. 7, 2017).

Related posts:

Job Posting to LinkedIn Group Doesn’t Violate Non-Solicitation Clause — Enhanced Network Solutions v. Hypersonic Technologies

‘Blatant Sales Pitch’ on LinkedIn Likely Violates Non-solicitation Clause–Mobile Mini v. Vevea


Source: Eric Goldman Legal