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My name is Evan Brown and I am an attorney at Hinshaw & Culbertson and I've been practicing law
up for about ten years now. I've been with Hinshaw since 2006 about
four years and
most of that
time that I've been practicing law I've focused on technology and intellectual property issues
and
these days, especially, that that's really my practice focus is on technology matters so I deal
a lot with copyright
a lot with trademarks
social media presents a lot of issues as well. Most of my clients
if they're not doing business directly
online
mainly what I mean is that if they're not a technology company
doing technology, they're of course
involved with the web, either promoting
their
goods or services or communicating with
the public or using technology an integral way and in some shape or form
so that's what I do in a nutshell, at a very general level. I am a blogger, I write
a blog, InternetCases.com, and as its name suggests, I track
developments involving the law
and the internet, mostly new cases, interesting cases that that come down involving internet
law so there's a lot of copyright matters
a lot of copyright issues
issues involving social media
privacy
branding, trademarks, domain name
issues as well, so
my blog is kind of my social media home, so to speak, and everything radiates
out from there. And I'm on Twitter
@InternetCases
And so I will post links to
interesting stories about law and technology
I will make of some personal observations on there as well
Also I am a co-host of
the weekly
podcast
it's called This Week in Law. I'm co-host with Denise Howell on that. I really enjoyed doing that because
we discuss,
for an hour so every Friday,
what's gone on that week
in terms of law and technology
Dan Saavedra: So tell me about
what are some of the issues that your clients are facing right now with social media
what are they asking you about, and how are you advising them?
Evan Brown: A big issue
and stating it
in a general way his reputation. And that can mean
a couple of different things.
People go online now to communicate and share their thoughts.
It's so easy to up to express your sentiments on something because
they are so many tools
that allow you to do that, whether it be a social networking platform,
like Facebook, or
a platform like Twitter
or blogging. I consider blogging a form of social needs as well. So
it's very easy for, of course, people to go online and and share their feelings and
their sentiments and their opinions about
services they may have gotten or goods they may have
purchased or experiences they've had
with someone providing those things
so a big problem
a big issue is
how to handle
negative commentary about companies goods and services online. So
it involves looking at
looking at
what exactly is is being said, whether it's something that maybe actionable
under the law. Is it defamatory? Is it trademark infringement? Is it something like that?
Examining that and looking at the overall context to see how
action against
that type of of conduct would be perceived
in the marketplace.
There's a term that I love to to talk about.
I wish I had been bright enough to to coin it. I did not. I think it originates with a
guy named Mike Masnick, out in California, who writes the of widely read blogs called Tech Dirt.
But the term is called the "Streisand effect" I'm sure you've heard about it.
And this is something that
I advise my clients to consider
very early in the game when when thinking about what kind of action you can take about
somebody
subjecting them
and to rough treatment online, saying something bad.
Long story short, back and I think it was 2003 or 2004 there
was, one of the universities in California wanted to
fly up and down the coast of California taking photos of
the coastline and
Barbra Streisand
has a home
in Malibu, the there on the coast of of California
and
she
objected to this project and filed suit.
I don't know the disposition of the lawsuit but that's not really the point of the story.
When she filed suit under
some state law in California, I think it was some kind of invasion of privacy, may have even
been some sort of anti-paparazzi law,
that drew attention
to this fact that she objected to that and the irony of the story and the paradox
of it is that nobody really knew Barbra Streisand had a home there until so she complained about
her privacy being invaded, made it much worse,
drawing attention to the fact that she was taking legal action and that's
something that's very important for
for individuals, if they're a defamation plaintiff or if they're a company
who is trying to
silence an online critic about their goods or services
that's something that's very important to think about
whether you're going to be blowing the dispute out of proportion and raising its profile
bringing more attention to that which you want the silence
in the first place.
So that's
a huge issue. Something that I see across the board
regardless of of industry
and it's something that has some very interesting
psychological and sociological aspects to it, as well, not only the legal ones. So that's a big one.
A very common fact pattern that I see is
somebody has set up a bogus profile
on
a social networking site. It seems like it's still MySpace.
All this stuff happens on MySpace. Occasionally you'll see bogus Facebook
profiles, but even though MySpace has declined in popularity, that's where you see the bogus
profiles of, you know, for example the school principal
or something like that.
The social networking sites want, the intermediaries, in general, want to do the right thing most
of the time
and content that is harassing
but not defamatory but, you know, can tend to hurt someone's feelings
is usually
can usually be construed as a violation of that intermediary's terms of service and
they would do the right thing and make sure that people a complaint so a lot of times
it's it's very effective to just
send a letter
to the intermediary whether it be the social networking site or platform
like Yelp or something like that
and just ask them
"Look,
this is a violation of your terms of service. This person is impersonating someone else.
This information is not helpful
to anyone. It's diluting the power of your site and the usefulness of your site.
Why don't you please
take it down?" And many times they will.
That's one strategy.
But parties in the position of Yelp
can be bold
when it comes to the decision whether to take content down and since we are having this
conversation I would be remiss
if I didn't mention
the robust immunity that a service provider, like Yelp, enjoys under the Communications
Decency Act
Title 47, Section 230
Which is part of the Communications Decency Act that says
that no provider
of a service, of an interactive computer service, can be treated as the publisher
or speaker of any
content that's provided by third party
A number of of companies have relied on this robust immunity, going all the
way back to the late nineties there was litigation
involving AOL
and allegedly defamatory postings to a forum
The first
and still kind of the leading case on this is a case called "Zeran" from the 4th Circuit.
Companies like eBay
have enjoyed the immunity for negative content that people have posted. Craigslist, you know, here close
to home
was sued by the
the sheriff of Cook County
and the court
relied in part on Section 230 getting rid of
the case because Craigslist should not be
the court held not
be treated as the publisher or speaker of that content.
That is a deviation in the law from the the common
law principles that had developed
for ordinary brick and mortar publishers over
the course of all those year. If a bookstore had notice
of the fact,
if a bookstore has notice, it's still this way now,
but traditionally
if a bookstore has noticed that there is content on its shelves that it is defamatory
it has a duty to
to remove that off the shelves and extent that it does not
the defamed
plaintiff can
go after be the bookstore and the bookstore can be held liable.
That's different in the case of an intermediary on the web who may
do something very a kin to
a bookstore, like Amazon.
Even if they know that there's defamatory content there
there's no
duty, even if they're put on notice of it, to take it off. So Yelp,
going back to our example here,
if a restaurant owner, for example,
feels that
a review that somebody has left is defamatory
say, "We
actually do cook the food here, we don't serve it raw." That would be something that
would be defamatory
if false.
They are not going to have much luck going after Yelp and filing a definition action
because of this immunity we're talking about.
Dan Saavedra: Fantastic. Evan Brown: Great, thank you, Dan.