Presentation to the Santa Monica Bar Association

1. Reputation
Management in the
Social Commerce Era
Bennet Kelley, Internet Law Center
Internet Law Center, 100 Wilshire Blvd., Suite 940, Santa Monica, CA 90401
www.internetlawcenter.net

2. SOCIAL COMMERCE MATTERS
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3. SOCIAL COMMERCE 101
69%
Consumers who search for reviews
before making purchase
(Source)
88%
Consumers who find online reviews
to be trustworthy
(Source)
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4. #1 Friends and Family
81%
#2 Online Reviews
76%
#10 Advertising
47%
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MOST TRUSTED PURCHASE INFORMATION SOURCES – JULY 2015 (SOURCE)

5. LOCAL BUSINESSES FOR WHICH REPUTATION
MATTERS MOST IN SELECTION (SOURCE)
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47% 47% 31% 25%29%
Restaurant Doctor/Dentist Hotel/B&B Tradesmen Auto Dealer/Repair

6. ADDRESSING BAD REVIEWS
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7. RULE #1: RESPECT THE WISDOM OF THE MASSES
•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
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8. RULE #2: NO FAKE REVIEWS
• New York Attorney General –
2013 “Operation Clean Turf”
resulted in fines for 19
companies.
• “By producing fake reviews,
these companies violated
multiple state laws against false
advertising and engaged in
illegal and deceptive business
practices.”
• Amazon has sued both
companies selling reviews and
sellers generating fake reviews
for their products.
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9. RULE #3: DON’T INCENTIVIZE
AmeriFreight Consent Decree
• AmeriFreight – gave discount for giving review and prize for
best review of month, while bragging it had “more highly ranked
ratings and reviews than any other company in the Auto
Transport Business.” Resulted in FTC Consent Decree.
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Go ahead, make my day.
• FTC cited to Endorsement Guidelines:
“When there exists a connection between the endorser and the seller of the
advertised product that might materially affect the weight or credibility of
the endorsement (i.e., the connection is not reasonably expected by the
audience), such connection must be fully disclosed.”
Why? In AmeriFreight’s case, for example, prospective consumers of
AmeriFreight’s services undoubtedly would view AmeriFreight’s reviews
more critically if they knew that AmeriFreight gave consumers $50, and the
chance to win $100, to write them.

10. RULE #4: DON’T PENALIZE
• Palmer v Kleargear (D. Utah 2014)
Improper attempt to enforce non-
disparagement clause (established after
transaction at issue) becomes cause célèbre,
resulting in judgment of $354K for consumer.
• 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.
• Federal Consumer Review Freedom Act (S.
2044) has passed Senate.

11. TEXAS CONSUMERS GIVE
PRESTIGIOUS PETS
ONE-STAR YELP REVIEW
OVER TREATMENT OF FISH
PRESTIGIOUS PETS FILES
BREACH OF NON-
DISPARAGEMENT, BUT
THEN RE-FILES FOR $1MM
DEFAMATION CLAIM
AFTER PRESS REACTION
YELP TAGS BUSINESS
WITH CONSUMER ALERT
PUBLIC CITIZEN FILES
MOTION TO DISMISS
SEEKS ATTORNEYS FEES
AND COSTS
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McWhorter v Duchouquette,
No. DC-16-03561
(Tex. Dist. Court)

12. 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 Justice
Acquired 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.”
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13. A WARNING FOR LAWYERS
• LA County Bar Ass’n: “[A]ttorney may respond to former client’s internet
posting, so long as 1) attorney’s response does not disclose confidential
information, 2) attorney does not respond in a manner that will injure
former client in a matter involving the former representation, and 3)
attorney’s response is proportionate and restrained.”
• SF Bar Ass’n: “Attorney is not barred from responding generally to an online
review by a former client where the former client's matter has
concluded. Although the residual duty of loyalty owed to the former client
does not prohibit a response, Attorney's on-going duty of confidentiality
prohibits Attorney from disclosing any confidential information about the
prior representation absent the former client's informed consent or a
waiver of confidentiality.”
• American Bar Association and New York Bar Association have taken similar
position.
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14. DO REVIEW SITES HAVE LIABILITY?

15. CDA SECTION 230
• “No provider or user of an interactive computer
service shall be treated as the publisher or speaker of
any information provided by another information
content provider“.
• Makes review sites immune for third party content.

16. OR NOT SO ABSOLUT[E]?
CDA immunity claims were addressed
at the motion to dismiss stage in only
half of the cases reviewed (and only 61
percent of these defenses were
successful). Another 26 percent of
cases were raised at Summary
Judgment where immunity was found
in two-thirds of the cases.
David S. Ardia, Free Speech Savior or Shield for Scoundrels:
An Empirical Study of Intermediary Immunity under Section
230 of the Communications Decency Act, 43 Loy. L.A. L. Rev.
373 (2010)

17. FIVE-STAR LITIGATION*
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• Unfair Business Practices
Court 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. (9th Cir. 2014)
• Section 230 Immunity Challenge
Fact 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. (W.D. Wash. 2014).
• False Advertising
Cal. 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! (Cal. App. 2014).
• FTC Investigation
Closed without comment.

18. COMING ATTRACTION . . .
• “Billion Dollar Bully” – documentary expose on Yelp* in post-
production. Stock plunged 5% when first trailer posted on
Kickstarter.
• Motley Fool - Could Billion Dollar Bully be the next
Blackfish?

19. RIPOFF REPORT:
TESTING THE LIMITS OF SECTION 230
• Some courts have denied Sec. 230 immunity:
• Found “substantial evidence suggesting that the
plaintiffs materially contributed to the alleged
illegality of the information at issue,” where
contractor wrote negative posts. Xcentric
Ventures, LLC v. Smith (W.D. Iowa 2015).
• Found Xcentric was not a neutral publisher since it
had an interest in, and encouraged, negative
content. Court concluded “it is reasonable to infer
that the very raison d’etre for the website was to
commercialize on its ability to sell its program to
counter the offensive content the Ripoff Report
encouraged. Vision Security, LLC v. Xcentric
Ventures, LLC (D. Utah 2015).
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Iowa Prosecutor accused Ripoff Report of
“reputation racketeering”.

20. INTERNET BRANDS
IMMUNITY DOES NOT COVER FAILURE TO WARN
• Jane Doe’s failure to warn claim
has nothing to do with Internet
Brands’ efforts, or lack thereof, to
edit, monitor, or remove user
generated content. Plaintiff’s
theory is that Internet Brands
should be held liable, based on its
knowledge of the rape scheme
and its “special relationship” with
users like Jane Doe, for failing to
generate its own warning. Doe #14
v. Internet Brands, No. 12-56638 (9th Cir.
May 31, 2016).
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21. PRACTICE POINTERS
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22. NEGATIVE CONTENT CHECKLIST
Can you identify/contact the poster?
Consider whether reaching out is an option
Does the post violate website terms?
Contact the website or flag the content
Is it defamatory?
Is it material (Streisand Effect)?
Can more content/SEO bury it
Bury Them In Kindness Content
Social Media
Blog Posts
Increased Reviews
Other Content

23. You’ll never
guess which
house is
mine?
THE STREISAND EFFECT

24. “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

25. ANTI-SLAPP MOTION
CAL CCP SECTION 425.16
a) 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.

26. 26
UC DAVIS COROLLARY

27. 27
GOOGLE TRENDS RESULTS

28. “CLEANING UP” CLIENT’S SOCIAL MEDIA PRESENCE
• Multiple jurisdictions have addressed removing
social media content and/or changing privacy
settings. Generally permissible as long as no
spoliation of evidence. FL Bar Advisory
Opinion 14-1 (2015)
• Don’t be Matthew Murray. He and legal
assistant instructed client to delete damaging
Facebook photos. VA Bar awarded him with a
five- year suspension. In re Matthew Murray
(Va. 2013)

29. BE PROACTIVE -
WHAT YOU DON’T KNOW CAN HURT YOU
• Set Up an Alerts
• For Yourself
• Your Firm
• Clients
• Services
• Google Alerts*
• Social Searcher*
• Social Mention*
• Talkwalker*
• Mention
• Cyber Alert
*Free

30. BE CAREFUL 25 Percent of Online Stalkers
Move to Offline Activity
Report Credible Threats to Law
Enforcement
Local Police
Ic3.gov
Obtain Civil Restraining Order

31. WHAT IS AN
INTERNET
LAWYER?
RUT-ROH
MONTY PYTHON and the HOLY GRAIL
Keeper of the Bridge of Death

32. BENNET KELLEY
Founder of the INTERNET LAW CENTER in Santa Monica
Host of CYBER LAW AND BUSINESS REPORT
Honors:
 Named One of Most Influential Lawyers in Digital Media and
E-Commerce by Los Angeles Business Journal (2014).
 Past Co-Chair of the California Bar Cyberspace Committee.
 Chair Technology, Internet and Privacy Interest Group of
California Bar Intellectual Property Section.
 Selected By US Dep’t of Commerce to Present on
U.S. E-Commerce Law as part of 2012 U.S.-China Legal
Exchange.
 Firm Newsletter (Cyber Report) named best in-house
publication by LA Press Club (7-time nominee).
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100 Wilshire Blvd, Suite 940, Santa Monica, CA 90401
(310) 452-0401
Website: InternetLawCenter.net
Blog: ILCCyberReport.wordpress.com
Tw: @InternetLawCent

33. CYBER LAW & BUSINESS REPORT
• 6th Season
• Over 220 Shows
• Nominated for LA Press Club Award for Best
Public Affairs Talk Radio Show in 2014
• Follow Us on Twitter @CyberLawRadio
• Next Week:
– Combating Online Harassment
– Ari Ezra Waldman, Founder and Director of the
Tyler Clementi Institute for Cyber Safety at
NYU Law.

34. 34
Fmr. Congressman Tom McMillen, Congressman Dana
Rohrabacher, Congressman Ted Lieu, Nimble CEO Jon Ferrara,
Fmr. Dep’t of Commerce Secretary Cameron Kerry, Pulitzer Prize
Winner Doris Kearns-Goodwin, IAPP President Trevor Hughes,
Silicon Beach Fest Founder Kevin Winston, Pulitzer Prize Winner
David Cay-Johnston, Author/Host Tavis Smiley, Journalist
Kashmir Hill, Boxun Founder Watson Meng, Author William
Powers, Fmr. Maryland Attorney General Doug Gansler, Scorpion
Computer Service CEO Walter O’Brien, Federal Election
Commission Chairwoman Ann Ravel

35. PRESENTATION ON SLIDESHARE.NET

36. QUESTIONS? THANK YOU
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