Bennet Kelleywww.internetlawcenter.net

@InternetLawCent

FIVE RULES OF REPUTATION MANAGEMENT

1

RULE #1WHAT YOU DON’T

KNOW CAN HURT YOU

IT’S ON THE INTERNET, SO IT MUST BE TRUE

If a tree falls . . .

OLD SCHOOL TODAY

SET UP

ALERTS

FOR YOUR NAME

YOUR BUSINESS

YOUR COMPETITOR

S

RULE #2 SOCIAL COMMERCE MATTERS

5

64% Consumers who search

for reviews before making purchase

5-9% Revenue Increase for additional Yelp Star

89% Consumers who find online reviews to be

trustworthy

13, 34, 53%Likelihood of prime time

sell out for 3, 3.5 and 4-star restaurants

6

• Unfair Business PracticesCourt rejected claim that Yelp practices were extortion since that requires that litigant have “a pre-existing right to be free from the threatened harm, or that the defendant had no right to seek payment for the service offered.” Yelp’s actions were not a “wrongful use of economic fear”. Boris Y. Levitt, et al. v. Yelp Inc., No. 11-17676, 2014 U.S. App. LEXIS 17079 (9th Cir. Sept. 2, 2014)

• Section 230 Immunity ChallengeFact that Yelp created star rating based on reviews, did not “transform an interactive computer service into a developer of the underlying misinformation” for purposes of Section 230 of the CDA. Kimzey v. Yelp Inc., 2014 WL 1805551 (W.D. Wash. May 7, 2014).

• False AdvertisingCal. Court of Appeal judge reversed a SLAPP dismissal of a False Advertising action based on Yelp’s claims that each review “passed through a ‘filter’ that gave consumers the most trusted reviews.” Demetriades v Yelp!, 2014 WL 3661491 (Cal. App. Ct. July 24, 2014).

• FTC InvestigationClosed without comment.

FIVE-STAR LITIGATION*

7

ADDRESSING BAD REVIEWS

8

RULE #3 – THE WISDOM OF THE MASSES

• Rule #1: Be Aware of Your Reviews• Own Your Negative Reviews

• Wisdom of the Masses• Increase Overall Reviews

• Initiate contact prior to posting reviews (Anonymous Venting)

• Direct Users to Review Sites You Approve • Unfair Review Considerations

• Does it violate site terms?• Is it defamatory? • Is it material (Streisand Effect)?• Can more content/SEO bury it?

9

RULE #4

AIM BEFORE YOU SHOOT

You’ll never guess which

house is mine?

THE STREISAND EFFECT

“There is no telling how many people have downloaded the photograph . . . numbers could easily be in the thousands”• Pre-Complaint

Downloads – 6 (4 by her lawyer)

• 1 Million Hits 1st Month After Lawsuit

BARBRA’S CRIB

ANTI-SLAPP MOTIONSCAL CCP SECTION 425.16a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. (b) (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

ORDERED TO PAY

$177,107.54 IN FEES

CONSUMER GAG AGREEMENTS

Kleargear.com’s Self-inflicted WoundImproper attempt to enforce non-disparagement clause (established after transaction at issue) becomes cause célèbre, resulting in judgment of $354K for consumer. Palmer v. Kleargear.com, No. 13-cv-00175 (D. Utah May 5, 2014).

Kleargear Fallout• California Passes Anti-Kleargear Law (Civil Code

Section 1670.8(a)(1)): A contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.

• Kleargear has not scared off others, penalty clauses still in use

• Arizona, New York Courts Indicate Gag Agreements May Be Enforceable• FreeLife Int'l, Inc. v. Am. Educ. Music Publications Inc., No. CV07-

2210-PHXDGC, 2009 WL 3241795 (D. Ariz. Oct. 1, 2009)(gag agreement not procedurally or substantively unconscionably under AZ law).

• Gallard v Johnston, No. 1:2014cv04411 1290775 (SDNY March 19, 2015) (refusing to dismiss claim under gag agreement).

14

COPYRIGHT AS A SHIELD• Medical Justice

Created patient contracts assigning IP in consumer reviews to doctor. Abandoned in 2011.

• New York v. Network Associates, 758 N.Y.S.2d 466 (N.Y. Sup. Ct. 2003) – violated consumer protection laws.

• US Dep’t of Health and Human Services prohibited doctor from conditioning privacy compliance with consent to review prohibition.

• Small JusticeAcquired copyright in defamatory post on RipOffReport.com

• Small Justice LLC v. Xcentric Ventures, LLC, No. 13-CV-11701, 2015 WL 1431071 (D. Mass. Mar. 27, 2015), appeal pending.

• Click wrap agreement sufficient to transfer exclusive copyright.

“By posting this report/rebuttal, I attest this report is valid. I am giving Rip-Off Report irrevocable rights to post it on the website. I acknowledge that once I post my report, it will not be removed, even at my request.”

15

RULE #5BE CAREFUL

DANGER!

DANGER!

CYBER THREATS25 Percent of online stalkers

move to offline activity

Report Credible Threats to Law Enforcement

Department of Justice/FBI Run

ic3.govObtain civil restraining order

BONUS RULE

THE FORCE MAY BE WITH

YOU

WHAT’S SEO?

ADDRESSING NEGATIVE CONTENT

CONTACT THE POSTERCONTACT WEBSITE, MAY VIOLATE

SITE TERMSBURY THEM IN KINDNESS

CONTENTSocial MediaBlog PostsOther Content

WHAT IS AN

INTERNET

LAWYER?

RUT-ROH

MONTY PYTHON and the HOLY GRAILKeeper of the Bridge of Death

BENNET KELLEY

Founder of the INTERNET LAW CENTER in Santa Monica Host of CYBER LAW AND BUSINESS REPORT

Broadcast through Webmaster Radio and iHeartRadioNominated for LA Press Club Award for Best Public Affairs Talk Radio Show in 2014

Honors: Named One of Most Influential Lawyers in Digital Media and

E-Commerce by Los Angeles Business Journal Past Co-Chair of the California Bar Cyberspace Committee Selected By US Dep’t of Commerce to Present on

U.S. E-Commerce Law as part of U.S.-China Legal Exchange Three Time LA Press Club Award Winner

CONTACTINTERNET LAW CENTER100 WILSHIRE BLVD, SUITE 940SANTA MONICA, CA 90401(310) 452-0401bkelley@internetlawcenter.netSkype: bennet.KelleyTwitter: @internetlawcentBlog/Newsletter: Cyber Report Ilccyberreport.wordpress.com

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