Combating Gripe Site Difficulties

New Jersey Law Journal

February 25, 2015

By Jonathan Bick, Bick is an adjunct professor at Pace and Rutgers Law Schools and of counsel to Brach Eichler. He is the author of 101 Things You Need To Know About Internet Law (Radom House 2000)

The Internet has increasingly alerted consumers to alleged business misconduct. An Internet "gripe" has the capacity of becoming known immediately to consumers and harm a business, regardless of its validity. Some consumers or former employees create and maintain Internet sites devoted to criticizing a company or a business. This activity is commonly known as e-griping. Internet protocols make disputing and erasing a malicious e-gripe difficult. However, legal, business and technological options are available to combat e-gripe difficulties.

Before widespread use of the Internet, dissatisfied consumers or employees had to surmount significant financial hurdles to effectively voice their complaints, such as by taking out expensive advertisements or initiating legal actions. Alternatively, they had to engage in collective action to gain the attention of a business, such as by participating in consumer boycotts or union activities.

The Internet's low barriers to entry, about $10 per month, allow a large number of individuals or groups to create and maintain an Internet site. Consequently, consumers and employees are now able to voice their individual complaints by broadcasting and publishing their criticism on the Internet.

This activity is supported by public and private Internet facilitators. Both public Internet sites, such as government enforcement agencies, and private sites, such as the Council of Better Business Bureaus Internet site (bbb.org), have long encouraged consumers to "tell their story" and submit complaints to help educate other consumers to particular issues and potential claims.

The initial response to e-gripes was litigation. In particular, businesses sued gripers and gripe site operators when griper's posting was anonymous. This tactic was fueled by the belief that businesses enjoy certain inherent advantages, such as individuals' inexperience with the legal system and a resource disparity between the two parties.

These responses generally involve filing lawsuits against individuals to wear down the gripe site operators, even though the companies do not necessarily expect to win. For example, some businesses file cease-and-desist letters with the intended effect of coercing an individual to take down a challenged website.

However, the use of anonymous registrations and the unwillingness of the court to force third parties, such as gripe site hosts, to reveal the identities of the gripers, has diminished the use of litigation to combat e-gripers. For example, consider Dendrite International v. Doe No. 3 (775 A.2d 756 (2001)), where the court declined to compel disclosure of the identities of anonymous e-gripers who posted information injurious to the company.

This response has largely been retired when it was found that litigation fueled rather than smothered e-gripe-related disputes because it made the matter more credible, and at times did more damage than the original e-gripe, by drawing attention to the alleged problem with the product or service. The two major exceptions to refrain from litigation arise when the gripe site is clearly defamatory or it infringes a trademark.

Defamation generally refers to false statements that damage an individual's reputation. However, mere critical opinion posted on a gripe site does not constitute defamation. In Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231 (2008), anonymous gripe site speakers posted unflattering statements about the former president, CEO and chairman of a company. However the court found that the statements made were offered as opinions, not as fact, and therefore the defamation claim was without merit.

Similarly, mere use of a trademark by a gripe site does not constitute infringement. To show trademark infringement under the Lanham Act's 32(1), a plaintiff must demonstrate that a trademark has been used in commerce in connection with the sale of goods or services in such a way as to likely cause confusion (15 U.S.C 1114(1)(a)).

Another early response by businesses to e-gripes was to take no action. This tactic has been in use for at least 10 years. For example, the Starbucked.com site (first visited Oct. 20, 2005, and last visited Dec. 9, 2014), which has been dedicated to criticizing Starbucks for a decade, appears to have been passively neglected by Starbucks.

Currently, both business and technological responses are available in addition to legal options or refraining from taking any action. Since the Internet is based upon a set of mutually agreed upon technical protocols, technical tactics, which are generally less expensive, may be more cost-effective than legal tactics for curbing gripe sites. Technical tactics include: publicizing the Internet speaker's bad acts via Internet postings; self-help action against the Internet speaker's Internet service provider, e-mail provider or Web provider; and using services to obscure the Internet speaker's content.

Such technical tactics are generally considered legal self-help remedies, and may entail legal risk, including litigation. However, the average e-griper lacks the motivation for litigation. The lack of motivation is based in part on the desire to maintain an unidentifiable status. The lack of motivation may also be economic. Commonly, the cost of initiating a lawsuit is more than the harm caused by the self-help, and the risk of a counter-suit is substantial. Thus, initiating litigation in this instance is likely to cost the plaintiff tens of thousands of dollars even if the plaintiff prevails.

Administrative law tactics have also successfully curbed gripe sites because many federal and state agencies have claimed jurisdiction over the Internet and are interested in demonstrating their power. Administrative law tactics include: reporting a griper's Internet service provider, email provider and/or a website provider to the Federal Trade Commission for the deceptive trade practice of publishing one thing on their terms of use agreement and doing another with respect to unlawful Internet speech; using the take-down provisions of the Digital Millennium Copyright Act; using state consumer affairs departments to take action against an Internet service provider, email provider and/or a website provider for the unlawful acts; and reporting an Internet speaker's unlawful speech to the Securities and Exchange Commission.

Self-help action against the griper's Internet service provider, email provider and/or website provider is both lawful and generally more cost-effective than litigation. In the past, courts have not normally favored the use of self-help methods to remedy a contract breach because unhindered self-help has great potential to produce unfair results. However, courts would rather enforce remedies, but to avoid unfair results, they are becoming more amenable to self-help remedies. As a result, those who exercise self-help remedies and end up in litigation are more likely to find favorable court treatment.

Another advantage of a self-help contract remedy is the immediacy and extent of the action. A party can act quickly and judiciously in response to problems. In doing so, it can avoid seeking judicial remedy or other third-party intervention, both of which typically involve delay.

One such self-help remedy is to impersonate the unlawful speaker on a third party's Internet site. Another is to impersonate a third party on the unlawful speaker's site. A third is to use spoofing technology to send bogus email on the unlawful speaker's behalf. A fourth is to use viral software to disable some or all of an unlawful speaker's Internet site or the site of an Internet service provider or mailer supporting the distribution of the unlawful speech.

Yet another technological tactic is to obscure the Internet speaker's unlawful content. Most Internet content is found through the use of Internet search engine software. Such search engines generally display results in an order based upon prior requests. Robot Internet software is available to find speech which is egregious to a particular party and send a request for Internet information in such a way as to move the egregious speech site ranking so far down as to not be found by most Internet users. Firms that offer services to obscure the Internet speaker's content also offer to host Internet sites that confuse search engine software and result in fewer readers for the Internet speaker's unlawful speech.

Among the most useful administrative law tactics for curbing e-gripes is reporting a gripe site provider, e-mail provider and/or a website provider to the Federal Trade Commission for the deceptive trade practice of publishing one thing on their terms of use agreement and doing another with respect to unlawful Internet speech.

An e-griper may use content owned by another. In that case, the take-down provisions of the Digital Millennium Copyright Act may be employed. In particular, if a gripe site provider has registered for indemnification afforded by Digital Millennium Copyright Act, as tens of thousands have, then administrative action is available. When a copyright owner discovers allegedly infringing material on a provider's service, it has the right to send a notice to the provider demanding the removal of that material. If the notice is proper, the provider must promptly comply or face administrative law liability.