Wednesday, April 20, 2011

Internet Browser Do Not Track Lists

Internet usage and consumer privacy - two concepts constantly at odds. Why? Because the higher the level of consumer privacy online the lower the revenue and profit margins for large and small internet companies alike. Data - consumer data - is the currency that drives e-commerce.

Setting aside the world of mobile, which will soon outpace traditional desktop internet browsing, some browsers are bending to consumer and governmental pressure to increase consumer controls over browsing data. While much of this data may not include personally identifiable information (PII), it still reveals much about an individuals online habits.

Internet Explorer, Mozilla's Firefox and Apple's Safari browsers all now allow users to click a button telling websites not to track their data. A few ad networks have signed on.

Google and its Chrome browser have not. One big reason is that what constitutes "tracking" is unknown at this time. In other words, there is no piece of legislation or case that provides a legal definition for "tracking". There is not even an industry group standard definition available. Mobile devices are going to further complicate the matter - adding geo-tagging issues to the mix.

Google has a point here. It is perhaps hasty to implement technology to disable "tracking" when what constitutes "tracking" is unknown. I imagine Facebook, which has its own notorious privacy reputation, might behave much like Google. Patience may not only be profitable but also prudent. That is, unless, there is a huge consumer backlash against Google for not following its peers' example. Consumer confidence should not be overlooked as a driver of internet service provider usage. Consumers need to implicitly trust their internet service providers to be responsible data custodians.

CNN recently reported on this issue and some of the technical aspects involved in implementing do not track technology. There is some proposed legislation sitting out there at the federal level. However, even if such legislation is passed, the meaning of any such legislation, its scope and applicability, will take years to define. As an internet business law attorney, I fully expect a slew of consumer internet privacy litigation to take hold in the next five to ten years. Browsing data will most assuredly be at the heart of such lawsuits.

Thursday, April 14, 2011

Internet Defamation Exploding

Internet defamation and anonymous internet defamation, in particular, continue to rise. Recently, the ABA Journal reported on the phenomenon of web attacks.

I found the article quite good in providing a generalized road map regarding this issue. It may be light in serious case law analysis but I found the section regarding CDA Section 230 reform particularly refreshing. CDA Section 230 has been stretched and abused for so many years that it has become a get out of jail free card for internet companies and websites. Reform will come down the pike sooner or later. I would like to see something analogous to the DMCA procedures for copyright infringement. In short, there needs to be a legal incentive for websites to cooperate in internet defamation matters. Kudos to the ABA for illustrating the problems with CDA Section 230 in its current form.

As I was telling a client the other day, it takes years and years to build a brand or business reputation. Unfortunately, that brand and reputation can often be destroyed in a matter of a few hours by a single, dedicated anonymous internet poster. If your business is being attacked online, it is crucial to hire an experienced internet defamation attorney. Even if the defendant has no money to collect pursuant to a judgment, an aggressive, experienced internet lawyer can stop the bleeding and get your business back to the revenues it enjoyed prior to the web defamation attacks.

Wednesday, April 6, 2011

Anti Slapp Motions More and More Common Due to Internet Postings

The internet is leading to an explosion of expression and user generated content. This is nothing new. Review sites like Ripoff Report, Yelp, RateMD etc. have fueled this explosion.

The legal downside of this explosion is that unfettered expression frequently goes too far and leads to defamation and trade libel. The fact that many review sites allow for anonymous postings and ratings only encourages individuals to cross the line from freedom of expression into the unprotected territory of defamation. Free speech has its limits and those lines are crossed online more often than anywhere else.

Defamation and trade libel, in short, consist of a false statement of fact that injures one's reputation and has a defamatory meaning. There has been an explosion in internet defamation lawsuits in the past few years. In today's world, a reputation which has taken years to build may be destroyed by just a few defamatory internet posts appearing highly in Google search rankings.

For those sued for defamation or trade libel in California, there is a powerful defensive tool that may be employed called the Anti-SLAPP motion. This motion may be filed by a defendant in a defamation case at the start of the case. The motion seeks to dismiss the complaint thereby putting an end to the lawsuit. The defendant, in the motion, must show that the speech at issue related to a matter of public interest. If the matter is of public interest or, more specifically, consists of public participation in a matter of public interest, the burden shifts to the plaintiff to prove a likelihood of success on the claims.

Basically, the Anti-SLAPP motion is like a mini-trial at the beginning of the case. Rather than incur the expense of defending a long, drawn out lawsuit, the Anti-SLAPP motion provides a defendant with an avenue to resolve the case at its beginning, saving the defendant untold thousands of dollars. Also, if successful, the defendant is entitled to recover all of its attorneys fees incurred.

If you are sued for defamation or planning on suing someone for defamation, make sure to contact a lawyer specializing in Anti-SLAPP motions. If you are a defendant, it may resolve your case very early in the proceedings and enable you to recover attorneys fees. If you are a plaintiff, you need to be able to overcome an Anti-SLAPP motion so that your case may proceed to trial.