Internet Law

Google Hit With a Wi-Fi Class Action Lawsuit, Likely Road to Nowhere

by Fred Abramson on May 20, 2010 · 1 comment

Google has previously admitted that it accidentally collected some open WiFi data. It is not exactly clear what Google was using the data for. If data is unencrypted, anyone using a WiFi network can see data used by others on that same access point. Is this legal? We will soon find out.

The first class action against Google’s so-called data collecting has been filed by three attorneys from Oregon. The complaint alleges that the company violated Washington and Oregon privacy laws as well as the federal Electronic Communications Privacy Act.

The plaintiffs are seeking up to $10,000 per violation suffered by each class member plus other damages. See the complaint below.

Van Valin v Google Complaint

Reading the complaint, I have no idea why the plaintiffs believe that their data was collected by Google. Granted, the plaintiff’s will have the opportunity during discovery to find out why and how their data was collected. At this stage, it looks to me that the lawyers went fishing for two plaintiffs and found them.

It is unclear what type of damages the plaintiffs can hope to receive. According to the Recorder,

federal law may not offer the damages that the plaintiffs are seeking. The Electronic Communications Privacy Act offers a safe harbor for some breaches if the collected information is publicly accessible, said Orrick, Herrington & Sutcliffe partner I. Neel Chatterjee. Companies have typically been protected too if they can prove they collected the data unintentionally.

One of the plaintiffs admits that her data was not encrypted. Where are the damages there?

As a publicity stunt, the lawyers may win. However, the case is premised on a weak legal basis and will likely be dismissed.

If you have any questions about privacy law in New York, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

What can Companies do to Protect their IP and Data from a Google-like Cyber Attack?

by Fred Abramson on January 21, 2010 · 1 comment

Protecting intellectual property from a cyber attack is something that all companies need to be concerned about. Google recently released information about a targeted attack on their intellectual property and data that occurred in December, 2009. The attack came from China and according to Google, resulted in the “theft of intellectual property from Google.” Apparently they were not the only company that was under a cyber attacks. At least 20 other corporations were hit, including a law firm that was suing China.

Google explained the cyber attack as follows:

The route attackers used was malicious software used to infect personal computers. Any computer connected to the Internet can fall victim to such attacks.

E-mails were targeted at individuals in each company that were made to appear as that they were coming from other people at each company. They attempted to get their target to click on a link or attachment.

Potential Legal Consequences of a Breach

If your company has been subject to a cyber attack and data has been breached, your company may be subject to litigation. There have been an increase in the number of lawsuits commenced by customers and clients whose data have been compromised. For example, there is currently a lawsuit in Pennsylvania against Heartland Payment Systems, which claims that the company waited to tell consumers about a data breach and failed to protect sensitive information.

Businesses also need to be aware of compliance laws such as Sarbanes Oxley when they lose the personal information of their customers.

Potential Legal Consequences of an Intellectual Property Breach

Cyber Attacks, like the one inflicted against Google, often attempt to steal Intellectual Property. Trademarks, patents, copyrights and trade secrets, are big targets for cyber criminals.

What companies from selected industries can do to protect their data

High-tech: Need to protect source code and engineering design documents.
Banks and Financial Companies: Confidential customer information.
Pharma and Bio-Tech: Trade secrets such as research and the manufacturing of drugs.

If you have any questions or if you wish to discuss this issue further, please don’t hesitate to contact me at The Law Office of Frederic R. Abramson at 212-233-0666.

FTC Rules for Bloggers governing testimonials

by Fred Abramson on November 9, 2009

In early October, the FTC published its guidelines governing testimonials. The main purpose of these new guidelines is to protect the public from hidden endorsements.

Many bloggers are paid by advertisers to write about a product. If you are a tech blogger and you were handed a shiny Droid phone by Verizon to blog about its new camera, you are now required to disclose that relationship. The new guidelines have teeth, with fines of up to $11,000 for not disclosing payments. How are bloggers and advertisers able to protect themselves from an unwanted legal action?

ADVERTISERS AND BLOGGERS NEED A WRITTEN AGREEMENT

If you are an advertiser and you pay bloggers to review and report on your product and services, you must develop an agreement with the blogger that mirrors the guidelines of the FTC rules. The agreement should:

Prohibit them from against making baseless claims about the service or product;
Require the blogger to disclose the connection between the advertiser and the blog owner. A tech blogger must disclose in its review of the Droid smartphone that it received the Droid for free.

THE ADVERTISER MUST MONITOR THE WORK OF THE BLOGGER

The advertiser should also set up a Google Alert, follow the blogger on all social media and constantly review the blog posts to make sure that the blogger complies with the FTC rules.

MONITOR YOUR EMPLOYEES

A company is also responsible for what their employees disseminate on social media. Companies must have their employees disclose that they work for them in any reviews. You can also prohibit your employees from reviewing any of your products.

BE TRUTHFUL

This may appear obvious, but both bloggers and advertisers now have an affirmative duty not to mislead or make a statement about the product that his untrue. Bloggers now have to perform due diligence about the product before posting. Bloggers now must review the product in an unbiased manner.

What do you think of the new FTC rules? Are they necessary? How do you think they will be enforced?

The Law Office of Frederic R. Abramson drafts agreements between bloggers and advertisers. For more information, contact me at 212-233-0666

The FTC Rules for Bloggers (bloggingot.com)

The bar is high for Defamation Lawsuits against reviewers on Yelp and “Gripe” sites.

by Fred Abramson on November 3, 2009

Image via Wikipedia

Unhappy customers are a fact of life for small businesses. In the past, if a customer was was not pleased about the Miso Black Cod he would simply kvetch to a hundred of his closest friends and never return (unless he was Larry David).

Web 2.0 has changed the way people complain. Disgruntled customers now spend their time logging on to Yelp, Facebook and “Gripe” sites to express their feelings to the net citizens of the world. A poor review on Yelp could create losses of thousands of dollars. If the review is defamatory, should you sue?

The New York Law Journal (pay wall) reports that the bar is very high for a company to win a defamation lawsuit against an individual. In Intellectual Art Multimedia v. Milewski, New York Supreme Court Justice Hon. Judith Gische recently ruled against the company in its Internet defamation lawsuit against a customer who posted negative comments on the Rippoff Report.

Intellectual Art runs the Swiss Finance Academy which operates a school of business. It sued a customer for defamation due to a negative review. Here is a sample of the alleged defamatory comments:

“[t]hey tell you where the location is then a week before the program starts they change the location and say no refunds whatsoever.”
“everything they taught was a “JOKE.”

Judge Gische decided that the “speech [was] merely an alleged statement about [the customer’s] personal opinion about the quality of the services of the plaintiff (Intellectual Art).” In addition, the judge ruled that on issues dealing with advocating on part of the consumer, courts are reluctant to stifle criticism of goods or services.

Conclusion

Don’t get me wrong, small businesses can still sue a customer for defamation. If the remarks are more than criticism, contact a lawyer. However, in this era of transparency, it is much cheaper to engage in business practices that foster trust than to start a lawsuit. Use Google Alerts and establish a Twitter account to monitor your brand. If a customer is unhappy, ask him why. Companies such as Zappos built an empire on listening to their customers through social media. So should you.

Internet Defamation Law: Twitter, Facebook and Bloggers.

by Fred Abramson on October 29, 2009 · 2 comments

Internet Defamation Law is becoming an increasingly important problem. Bloggers and anyone else using social media need to be aware of what they post online. There is a serious threat of what you post can result in litigation.

I recently reported that there has been a 216% increase in libel lawsuits against bloggers. Courtney Love’s Twitter defamation case is not going away.

Yelp, the popular review site, has been at the center of the debate because people are using the service to write reviews that are untrue.

A $1 million judgment, including an injunction and costs was granted against a defendant who persisted in posting false and defamatory statements in online forums regarding his fraudulent transactions at the expense of an online company. (thanks @jdtwitt)

How do you know if a statement that is written online rises to the level of Defamation?

Defamation is an invasion of the interest in reputation and good name of a living person, which holds that person up to hatred, contempt, ridicule, or shunned by others (William Prosser, Law of Torts 737 (4th ed 1980). You can sue both an individual and a company for defamation. Libel is written defamation, slander is oral. A defamation claim may also raise the issue of intentional infliction of emotional distress.

Publication: The statement must be disseminated to a third party before a lawsuit can be commenced. What this means is that other people must be aware of the remark before you can claim that someone’s business interests are damaged.

If the conversation is in email form and only the sender and recipient are involved in the conversation, there is no cause of action. Section 230 of the Communications Decency Act generally protects online service providers from being sued as a result of defamatory postings by users.

Damages: You must prove that you have been harmed in some way. There are some cases where you don’t have to prove damages. They are:

any remark about the unchastity of a women (sounds really antiquated)
imputation of a crime or of a loathsome disease
any statement about that person that affects his or her business reputation.

Before you race over to my office, you need to consider the following issues to assess whether there are any defenses :

Is the work a parody? “Fake” Web sites and social media profiles appear to be a developing trend.
Is the person a alive, a public figure, private person or politician?
Is there anyone else objected to the post?
Are the statements made wrong?
Has anyone changed any of the content?
Is the statement or any of the alleged remarks true?
Is the remark accurate?
Has the publisher of the statement checked whether the remark was accurate?
When was the statement made? You must be aware of the statute of limitations.
Does the person who you would like to sue have insurance? Without a deep pocket, your judgment is worthless.

What should you to protect yourself from Defamation lawsuits if you are a blogger?

If you are a content provider or blogger, you may find yourself facing a defamation lawsuit even if you did not write the remark. For example, you may be liable for not reviewing the material posted on your site. I would recommend that you purchase E&O insurance. You should also check your homeowners insurance policy, as many policies provide coverage for defamation related lawsuits.

Why You Need to Practice Giving Value

October 28, 2009

I have recently started reading The Magic of Thinking Big, by David J. Schwartz. The book, written in 1959, has been getting a lot of ink lately because his ideas are classic. Business thought leaders such as Seth Godin and Tim Ferriss cite the book as required reading. Mr. Schwartz suggests that we should practice […]

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Litigation, Privacy and other Legal Issues in Cloud Computing

October 21, 2009

There is a growing trend for companies to store information at a remote location, or a “cloud.” Whether you are using Google Docs or have remote servers physically located elsewhere, if you are collaborating with other people and information is not stored on your hard drive, you are probably “cloud computing.” So who is effected […]

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Legal Reasons Why Your Company Should Have a Social Networking Policy

June 3, 2009

Your employees are probably participating in social networking sites such as Facebook, LinkedIn and Twitter. But what are your workers doing on Facebook while on the clock? Are they networking or are they sharing their 5 favorite beers? On the one hand, you want to trust your employees and make them feel like they have […]

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Breach of Contract Lawsuit in New York: Quick guide to steps

May 18, 2009

The web designer that you hired failed to deliver the new web 2.0 apps on your website as agreed to in your written contract. In the alternative, you have been sued by a customer because they were not happy with the materials that you supplied. Should you call a lawyer and either start or defend a lawsuit? Below, is quick guide that summarizes the basic steps, legal process and expenses to breach of contract lawsuit.

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