Tagged: Reputation Legal

The legal side of Reputation Management

5 Common Mistakes Lawyers Make When Drafting Defamation Complaints 0

In my defamation practice I see lawyers continually making the same mistakes when they draft complaints. Unfortunately for their clients, these drafting errors often lead to partial or complete dismissals of their lawsuits. Here are just five of these common mistakes:

1. Pleading injunction as a cause of action. An injunction is a powerful remedy for a claimant in a lawsuit, and effectively can prohibit the publication of certain statements that have been deemed to be defamatory by a court. However, it is a remedy, not a cause of action. Still, many lawyers wrongly frame it as a cause of action. This allows a savvy defamation defense lawyer to argue to a court that this is a non-existent cause of action, and therefore should be dismissed. Even worse than framing an injunction as a cause of action, is not alleging it at all, which happens all too often. This prevents the client from seeking an order from the court prohibiting defendants from making certain statements in the future.

2. Blowing the SOL. In California, the statute of limitations in libel and slander cases is one year from the date of publication, generally speaking. In situations not involving the internet, courts may allow more time than one year to file a lawsuit under an exception. But this exception does not apply to statements that are published on the internet.  In other words, once an alleged defamatory statement is published on the Internet, the statue of limitations begins to run. Yet even though this is a fairly easy issue to research, I see lawyers time and again incorrectly assuming that they have more than one year to file a lawsuit for defamation relating to statements that are published on the Internet, which is a huge mistake.

 3.  Failing to recognize potential privileges. When I use the word privilege I am referring to certain defenses that act as a conditional or absolute bar to a claim for libel or slander. The most common and sometimes least obvious is the so–called litigation privilege. As an example, not too long ago, I saw a complaint where the plaintiff alleged that the defendant made a false report to a state licensing board. However, the litigation privilege provides absolute protection for this kind of statement.  Regardless of whether the report was true or false, the plaintiff could not plead a valid claim. Unfortunately the plaintiff had to learn the hard way, because we prevailed on an anti–SLAPP motion and was forced to pay my client’s attorney’s fees.

4.  Failing to plead the alleged defamatory statement verbatim. Another common error I see is failing to state the exact alleged defamatory statement. For example, a plaintiff will allege that the defendant disparaged his character without specifying what was said or written. This is a problem because the law is that “words constituting an alleged libel or slander must be specifically identified if not pleaded verbatim in the Complaint.” As a result of this goof, a defense lawyer can request that the court strike the cause of action on that basis alone because the plaintiff failed to state a cause of action. This is especially true in the face of a dispositive motion.

5. Pleading derivative claims. Either due to ignorance or fear, I often see attorneys adding unnecessary and wholly derivative causes of action (intentional interference with prospective economic advantage or intentional infliction of emotional distress) when simply a claim for defamation would be enough. Not only does this practice frustrate judges, but it also violates the uniform single publication act. Restyling defamation claims as other claims might also violate important First Amendment defenses, which would also be prohibited. This is probably the most common mistake that I see.

If you think this information was helpful to you, please feel free to share it with others or comment about it below. Thanks for reading.

 

 

 

 

 


Source: Adrianos Facchetti

​Announcing Search Insights from Moz Local! 0

Posted by David-Mihm

When we launched Moz Local, I said at the time that one of the primary goals of our product team was to “help business owners and marketers trying to keep up with the frenetic pace of change in local search.” Today we take a major step forward towards that goal with the beta release of Moz Local Search Insights, the foundation for a holistic understanding of your local search presence.

As we move into an app-centric world that’s even more dependent on structured, accurate location data than the mobile web, it’s getting harder to keep up with the disparate sources where this data appears — and where customers are finding your business. Enter Moz Local Insights — the hub for analyzing your location-centric digital activity.

What’s included in this beta release?

We’ve heard our customers loud and clear — especially those at agencies and enterprise brands — that while enhanced reporting was a major improvement, they needed a more comprehensive way to prove the value of their efforts to clients and company locations.

We start with daily-updated reporting in three key areas with this release: Location page performance, SERP rankings, and reputation. All of these are available not only within a single location view, but aggregated across all locations in your account, or by locations you’ve tagged with our custom labels.

Location page performance

The goal of our new Performance section is to distill the online traffic metrics that matter most to brick-and-mortar businesses into a single digestible screen. After a simple two-click authentication of your Google Analytics account, you’ll see a breakdown of your traffic sources by percentage:

Clicking into each of the traffic sources on the righthand side will show you the breakdown of traffic from those sources by device type.

There’s also an ordered list of all prominent local directories that are sending potential customers to your website. While we haven’t yet integrated impression data from these directories, this should give you a relative indicator of customer engagement on each.

traffic_directories.png

We’re hoping to add even more performance metrics, including Google My Business and other primary consumer destinations, as they become available.

Visibility

The Visibility section houses your location-focused ranking reports, with a breakdown of how well you’re performing, both in local packs and in organic results. Similar to the visibility score in Moz Analytics, we’ve combined your rankings across both types of results into a single metric that’s designed to reflect the likelihood that a searcher will click on a result for your business when searching a given keyword.

The Visibility section also lets you see how you stack up against your competitors — up to three at a time. But rather than preselecting a particular competitor, you can choose any competitor you’d like to compare yourself to on the fly.

And, of course, we give you the metrics in full table view below (CSV export coming soon) if you prefer to get a little more granular with your visibility analysis by keyword.

We’ve got a number of other innovative features planned for release later in the beta period, including taking barnacle positions into account (originally heard through Will Scott) when calculating your visibility score, and tracking additional knowledge panel and universal search entries that are appearing for your keywords.

Reputation

The Reputation section is probably the most straightforward of the bunch — a simple display of how your review acquisition efforts are progressing, both in terms of volume and the ratings that people are leaving for your business.

There’s also a distribution of where people are leaving reviews, so you have a sense of what sites your customers are leaving reviews on, and which ones might need a little extra TLC.

Over time, we’ll be expanding this section to include many more review sources, sentiment analysis, and the ability to receive notifications and summaries of new reviews.


What’s next?

You tell us! This is a true beta, and we’ll be paying close attention to your feedback over the next couple of months.

Search Insights is already enabled for all Moz Local customers by default. Just log in to your dashboard and let us know what you think. And if you’re not yet a Moz Local customer, sign up today to take Search Insights for a free spin during our beta period.

There’s a lot of underlying infrastructure beneath the surface of this release that will allow us to add new features on a modular basis moving forward, and we’re already working on improvements, such as custom date range selection, CSV exporting, emailed reports, and notifications. But your feedback will help us prioritize and add new features to the roadmap.

Before I sign off, I want to give a huge thank you to our engineering, design and UX, marketing, and community teams for their hard work, assistance, and patience as we worked to release Moz Local Search Insights into the wild. And most importantly, thank you to you guys — our customers — whose feedback has already proven invaluable and will be even more so as we enter the newest phase of Moz Local!

Sign up for The Moz Top 10, a semimonthly mailer updating you on the top ten hottest pieces of SEO news, tips, and rad links uncovered by the Moz team. Think of it as your exclusive digest of stuff you don’t have time to hunt down but want to read!


Source: Moz

General Principles of Personal Jurisdiction in Defamation Cases 0

Due process permits state courts to exercise personal jurisdiction over nonresidents who have “minimum contacts” with the forum state. “Minimum contacts” means a relationship between the nonresident and the forum state is such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice” under the U.S. Constitution’s Fourteenth Amendment Due Process Clause. Applying this “minimum contacts” analysis, a Court may obtain either specific or general jurisdiction over the defendant. Specific jurisdiction is proper when the defendant’s “contacts with the forum give rise to the cause of action before the court.” The question is “whether the cause of action arises out of or has a substantial connection with that activity.” Conversely, “when the cause of action does not arise out of or relate to the . . . activities in the forum state,” the state is exercising “general jurisdiction over the defendant.” General jurisdiction is available if the defendant’s activities in the forum are substantial, continuous, and systematic; if so, the foreign defendant is subject to suit in the forum on matters unrelated to his or her contacts to the forum.

The Ninth Circuit has established a three-part test to evaluate the nature and quality of a defendant’s contacts so as to determine the availability of specific jurisdiction: (1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which she purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable. The Plaintiff bears the burden of satisfying the first two prongs. If Plaintiff is successful under the first two prongs, then the burden shifts to the defendant to show that the exercise of jurisdiction would not be reasonable.

The first prong of the three-part specific jurisdiction test requires plaintiff to establish that Defendant “either purposefully availed itself of the privilege of conducting activities in California or purposefully directed activities toward California.” The Ninth Circuit has noted that it “often use[s] the phrase ‘purposeful availment,’ . . . to include both purposeful availment and purposeful direction, but availment and direction are, in fact, two distinct concepts.” The purposeful availment analysis is the standard for contract cases, while the purposeful direction analysis is most often used in tort cases.

In tort cases, [courts] typically inquire whether a defendant ‘purposefully directs his activities’ at the forum state, applying an ‘effects’ test that focuses on the forum in which the defendant’s actions were felt, whether or not the actions themselves occurred within the forum.” (holding that due process permits the exercise of personal jurisdiction over a defendant who “purposefully directs[s]” his activities at residents of a forum, even in the ‘absence of physical contact’ with the forum.) The “effects” test comes from the Supreme Court’s decision in Calder v. Jones (1984) 465 U.S. 783, that “the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” The ‘intentional act’ to be analyzed is most often the alleged act that forms the basis of the tort; therefore, the first prong of the Calder case is usually decided with little analysis. “[T]he ‘express aiming’ requirement… is satisfied when ‘the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state.’” However, “[w]here a defendant’s ‘express aim was local’, the fact that it caused harm to the plaintiff in the forum state, even if the defendant knew the plaintiff lived in the forum state, is insufficient to satisfy the [Calder] effects test.” (“[a]n intentional act aimed exclusively at a location other than the forum state, which results in harm to a plaintiff in the forum state, does not satisfy the ‘express aiming’ requirement under Calder.”) If either the purpose availment or purposeful direction analysis is satisfied for a particular party under a given claim, the court continues the specific jurisdiction analysis.

Even if Plaintiff is able to satisfy the first prong of purposeful availment/purposeful direction, the second prong of the test for specific jurisdiction requires that the Defendant’s “contacts with the forum give rise to the cause of action before the court.” The court uses a “but for” test to conduct this analysis. The “but for” question poses the following: “But for” defendant’s contacts with California, would plaintiff’s claims against defendant have arisen?

Assuming Plaintiff successfully demonstrates that Defendant purposefully established minimum contacts with the forum on the first two prongs of the test for specific jurisdiction, then the Defendant “must present a compelling case of the presence of some other considerations which would render jurisdiction unreasonable” in order to defeat personal jurisdiction. Courts often look to seven factors in considering whether the exercise of jurisdiction is reasonable and comports with notions of “fair play and substantial justice”: (1) the extent of the defendants’ purposeful injection into the forum state’s affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of the conflict with the sovereignty of the defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of controversy; (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) existence of an alternative forum.


Source: Adrianos Facchetti

Sacramento Husband says he was defamed by Cheaterville user 0

News 10 Sacramento reports that a Sacramento couple says they plan to subpoena Cheaterville to discover the identity of the person who posted the husband’s information on Cheaterville’s website. Randazza, who represents Cheaterville, said:

“These are claims that nobody has seen since mid-January, and nobody remembers – but they will obtain far more notoriety, credence, and permanence as part of a federal lawsuit than they ever could on Cheaterville.”

Read More…


Source: randazza

The Public Figure Doctrine And The Internet 0

 

 

In the future, everyone will be world-famous for 15 minutes. – Andy Warhol

 

In the future, everyone will be world-famous to 15 people. –Momus

 

No one can dispute that the Internet has changed the world as we know it. From the ways in which we communicate with each other, to the ways in which we access information and make decisions, every aspect of our lives is to some extent governed by the Internet. This technological wonder has greatly enhanced our lives, and it has created some complexities that Andy Warhol could never have imagined when he uttered his famous words in 1968. One of these complexities is the application of legal principles to the Internet. And one area of law where jurists need to provide further guidance is the public figure doctrine as it applies to people and activities on the Web. My purpose in writing this post is not to provide a comprehensive discussion of these issues, but hopefully it serves as a good start to anyone who’s interested in this area.

A preliminary and potentially significant issue in every defamation action is whether the plaintiff is a public figure. This is because public figures are held to a higher standard of proof than private individuals. Indeed, the standard is so high that few public individuals are able to meet it.

There are two different kinds of public figures: the all-purpose public figure, and the limited purpose public figure. The all-purpose public figure is one who has achieved such pervasive fame or notoriety that he or she becomes a public figure in all contexts (think Michael Jordan or Oprah). The limited purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited number of issues. In most cases there are no facts to suggest that the plaintiff is in all–purpose public figure. Therefore, typically the fight is over whether the plaintiff is a limited purpose public figure.

California courts have adopted a 3-part test to determine whether a plaintiff is a limited purpose public figure. First, there must be a public controversy. This means that the controversy was debated publicly and had substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. In this regard, it is enough that the plaintiff “attempt to thrust him or herself into the public eye.” And finally, the alleged defamation must be germane or relevant to the plaintiff’s participation in controversy.

So what exactly is a public controversy and how might that be applied to the Internet? In one case, the court wrote: “A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way.” “Courts must exercise care in deciding what is a public controversy.” “To determine whether a controversy indeed existed and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question.”

So how should courts handle this issue in light of the fact that people debate all kinds of issues on the Internet? In other words, what is a “public controversy?” Unfortunately, California courts have done very little to flesh out this concept, and so it remains to be seen what qualifies as a public controversy. However, courts should make clear that private disputes should not be interpreted as public controversy solely because the purported dispute draws attention from the public. Stated another way, private beefs or disagreements do not become public controversies simply because they gain attention. Otherwise, one could argue that every business that is listed on Yelp.com that has customer reviews is embroiled in a public controversy.

A second an important issue is the level of the alleged public figure’s voluntary involvement in the controversy. In fact, voluntariness appears to be one of the most important elements in determining whether someone is a public figure. For example, issuing press releases and posting letters to a website was enough for one court to find that the plaintiff had inserted itself into a public controversy. And in another case, the fact that plaintiff had invited media attention for a commitment ceremony and posted information about that ceremony on a website was sufficient to make the plaintiff a limited purpose public figure. But what about situations where the “voluntary involvement” only happens on the Internet and is only disseminated to a limited number of people? There are scores of people who write tweets or post comments on forums about the issues of the day. How should the law treat those? We need more published decisions in this area.
 

 

 

 

 


Source: Adrianos Facchetti