Sergeant’s Social Media Post Causes Police Department Disruption, Free Speech Claim Rejected

In Graziosi v. City of Greenville, Case No: 4:12-CV-68 (U.S. District Court, N.D. Mississippi, Greenville Division, order entered December 3, 2013), the U.S. District Court for the Northern District of Mississippi held that a police sergeant could not pursue a free speech retaliation claim against the city of Greenville, Mississippi or its police chief after she was fired from the police department for posting on the mayor’s Facebook page that it was “totally unacceptable” the department had not sent a representative to the funeral of an officer killed on duty. Although the sergeant made the post from her personal computer while off duty, the court found her speech unprotected because it was not made as a private citizen speaking on a matter of public concern. The department’s interest in maintaining confidence in its leadership and discipline policy outweighed any constitutional right the sergeant had in making the speech.

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    Anticybersquatting Consumer Protection Act Does Not Permit Cause of Action for Contributory Cybersquatting

    In Petroliam Nasional Berhad (Petronas) v. GoDaddy.com, Inc., Case No: 12-15584 (U.S. Court of Appeals, Ninth Circuit, order entered December 4, 2013), the U.S. Court of Appeals for the Ninth Circuit held that neither the plain text of the Anticybersquatting Consumer Protection Act, nor its legislative history or goals supported a cause of action for contributory cybersquatting. In so holding, the appeals court affirmed a federal district court’s ruling in favor of a domain registrar sued by a trademark owner offended by the use of its mark in a domain name associated with adult content.

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      Plaintiff Must Pay Defendant’s Attorneys’ Fees in Libel Tourism Case, Despite Defendant’s Willfulness

      In Trout Point Lodge Limited v. Handshoe, Cause No. 1:12CV90 (U.S. District Court, S.D. Mississippi, Southern Division, order entered December 11, 2013), the U.S. District Court for the Southern District of Mississippi held that a Canadian plaintiff who filed suit in the U.S. to enforce a Canadian defamation judgment that was unenforceable in the U.S. must pay the defendant’s attorneys’ fees as provided for under the SPEECH Act, despite the defendant’s comments being willfully offensive. The SPEECH Act was enacted to quell “libel tourism,” the act of bringing a defamation suit in a country with more plaintiff-friendly defamation laws. The Act makes foreign defamation judgments unenforceable unless the foreign jurisdiction applied at least as much protection for speech as would U.S. law.

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        FTC Updates Guidance on Spotting False Weight-Loss Advertising Claims

        On January 7, 2014, the Federal Trade Commission updated its guidance for broadcasters and publishers on spotting false weight-loss advertising claims when reviewing ads for publication. The update includes a list of seven statements that cannot be true and should prompt a “gut check” — a second look to make sure publishers are not running ads with claims known to be false. It also provides advice on dealing with fine print disclosures and consumer testimonials.

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          FTC Alleges Unlawful Billing for In-App Charges Incurred by Children Without Parental Consent

          In Federal Trade Commission v. Amazon.com, Inc., (U.S. District Court, W.D. Washington, complaint filed July 10, 2014), the Federal Trade Commission sued Amazon.com for allegedly permitting children to collectively incur millions of dollars in purchases on their parents’ credit cards without their parents’ knowledge or consent while playing mobile apps. The lawsuit seeks a court order requiring Amazon.com to refund unauthorized charges. It also seeks to prevent the company from billing account holders for in-app charges made without their consent.

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            WordPress Not Compelled to Remove Content Breaching WordPress Terms of Use

            In Joude et al. v. Wordpress Foundation et al., Case No. C 14-01656 (U.S. District Court, N.D. California, order entered July 3, 2014), the U.S. District Court for the Northern District of California held that the owner of the WordPress blogging platform was not contractually obligated to remove content that violated the platform’s terms of use provisions forbidding bloggers from impersonating others. The court found that the provision at issue created an obligation for bloggers rather than the platform, and that the terms of use contained other language that expressly reserved the platform’s discretion as to whether to remove violative content.

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              Gossip Web Site Not Liable for User Posts Despite Using Provocative Domain Name, Adding Commentary

              In Jones v. Dirty World Entertainment Recordings LLC, Case No. 13-5946 (U.S. Court of Appeals, Sixth Circuit, ordered entered June 16, 2014), the Sixth Circuit Court of Appeals held that a gossip Web site retained immunity from liability in a state law defamation action for user-generated posts, pursuant to Section 230 of the Communications Decency Act (“CDA”), despite using the provocative domain name “thedirty.com” and adding brief commentary to the posts. In reversing the underlying district court ruling, the court applied the Ninth Circuit’s “material contribution” test, finding that the site did not lose immunity as a developer of the content under the CDA because it did not materially contribute to the alleged unlawfulness. Section 230 of the CDA provides immunity from liability to interactive computer service providers as publishers of others’ content, so long as the provider is not responsible in whole or in part for the creation or development of the material.

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                Ninth Circuit Rejects Merchants’ Claims of Extortion, Unfair Competition by Yelp

                In Levitt v. Yelp! Inc., Case No. 11-17676 (U.S. Court of Appeals, Ninth Circuit, order entered September 2, 2014), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of a class action lawsuit filed by business owners who alleged Yelp Inc. had extorted or attempted to extort payments for advertising by altering user reviews and writing false and defamatory reviews in violation of California’s Unfair Competition Law (“UCL”). In a ruling that arguably suggests that Yelp can manipulate its ratings for money, the court held that the business owners failed to state a claim for extortion for purposes of the UCL. It also held that the business owners failed to allege sufficient facts to support their claim that Yelp wrote disparaging reviews of their businesses.

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                  Ninth Circuit Blocks California Law Requiring Sex Offenders Report Online Activities

                  In Doe v. Harris, Case No. 13-15263 (U.S. Court of Appeals, Ninth Circuit, order entered November 18, 2014), the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s order preliminarily enjoining provisions of the Californians Against Sexual Exploitation Act (“Act”). The Act seeks, inter alia, to update reporting obligations of registered sex offenders by requiring they provide a list of all Internet identifiers they have established and of all Internet service providers they use. The Ninth Circuit agreed with the district court that the Act imposes a substantial burden on offenders’ ability to engage in legitimate online speech, including anonymous speech, as protected by the First Amendment. It concluded that the Act unnecessarily chills protected speech by not making clear what offenders are required to report, providing insufficient safeguards to prevent the public release of reported information, and because the 24-hour reporting requirement is onerous and overbroad. The Ninth Circuit concluded that appellees were likely to succeed on the merits of their First Amendment challenge and that the district court did not abuse its discretion in finding that the elements for obtaining a preliminary injunction had been satisfied.

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                    Generic Use of “Google” As a Verb Does Not Invalidate Trademark

                    In Elliott et al. v. Google Inc., Case No. CV-12-1072 (U.S. District Court, D. Arizona, order entered September 10, 2014), the U.S. District Court for the District of Arizona held that the primary significance of the term “Google” to a majority of the Internet-searching public was to refer to the Google search engine specifically, rather than as a descriptive term for search engines generally. This was so even if “google” is widely used as a generic verb, regardless of whether Google’s search engine is being used. The court opined that “a trademark performs its statutory function so long as it distinguishes a product or service from those of others and indicates the product’s or service’s source.” The court concluded that plaintiff had failed to present conclusive evidence that the primary meaning of “google” was as a generic verb rather than as an indicator of the origin of the services at issue.

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