The Hazards of Running a Consumer Review Website

by Greg Beck

Justin Leonard, the owner of InfomercialScams.com, has had his share of legal troubles over the past several months. First, he was sued in Florida by the infomercial company GlobalTec, which sells day-trading software. GlobalTec alleged that, by posting reviews of GlobalTec products that turned up in Google searches, Leonard was infringing the company's trademark. With the assistance of Public Citizen, Leonard filed a motion to dismiss, pointing out that, among many other problems with the lawsuit, he lived in Arizona and had no connection with the state where he had been sued. Last month, the court accepted Public Citizen's arguments and dismissed the case for lack of jurisdiction.

Next, Leonard received a subpoena from Video Professor, an infomercial company that sells video-based courses, demanding that Leonard turn over IP addresses and other personally identifying information about everyone who posted reviews of the company's products. Leonard objected, again with the help of Public Citizen, and yesterday Video Professor withdrew its subpoena, although it did not drop its lawsuit and is apparently still pursuing another subpoena to discover the identity of a Wikipedia user, who the company claims defamed it in the online encyclopedia.

So it came as no surprise to Leonard when he learned of yet another lawsuit against him, this time in Michigan, brought by the Infomercial company Lifestyle Lift, which performs a facelift procedure that it claims takes only about an hour. Predictably, negative reviews of the company began showing up on the Internet, and Lifestyle Lift was not happy. So the company sued Leonard, claiming as others had claimed before that the negative reviews infringed its trademark. Public Citizen again filed a motion to dismiss on Leonard's behalf, asking the court to dismiss the complaint because the First Amendment protects the mention of the company’s trademark on Leonard’s Web site, because Leonard has not violated trademark laws, and because the court has no jurisdiction over Leonard in Michigan.

In addition to the lawsuits, Leonard has received a steady stream of legal threats from other companies demanding that negative reviews be taken offline. Many of these threats are totally without legal basis and seem designed only to bully Leonard into submission. Public Citizen has now defended Leonard on several occasions because, we believe, the Internet's potential as a source for consumer information cannot be realized if website operators are too afraid to post negative reviews. Unfortunately, however, most people don't have access to pro bono trademark lawyers, and defending against a lawsuit or subpoena will often be impossibly expensive for a small website operator.

Unless companies start facing penalties, like judicial sanctions, for lawsuits that are filed for the purpose of squelching negative opinions, they will keep bringing these lawsuits until websites like InfomercialScams.com are no more. And that, you can bet, is exactly what they want.

Comments

[Bob Nicholson]

You raise a very good point. Recently a group of rating and review site operators formed the "Rating and Review Professional Association," in part to defend against threats to sites such as ours.

A quote from our website (rarpa.org) regarding this issue:

Rating sites, and individuals who post ratings, are sometimes sued by businesses or individuals who oppose their rights to freely express their opinions. These suits are called "Strategic Lawsuits Against Public Participation," or SLAPPs.

Many states offer legal protections against SLAPPs, allowing the defendants to counter-sue and collect substantial damages. For broad information on SLAPPs and anit-SLAPP protection, see Wikipedia.

There is more detailed information about defending against a SLAPP at thefirstamendment.org.

At least one rating and review site, assisted by the ACLU, has used anti-SLAPP protections to block a lawsuit by professors suing a website where students posted critiques of their teachers.