Terms and Conditions

Wargo v. Lavandeira

Date: 

07/14/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Mario Lavandeira, dba PerezHilton.com and Perez Hilton; John Does

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal
State

Court Name: 

Court of Common Pleas, Cuyahoga County, Ohio; United States District Court, Northern District of Ohio

Case Number: 

CV 08 664752; 1:08-CV-2035

Legal Counsel: 

Bryan J. Freedman - Freedman & Taitelman

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

Diane Wargo sued Mario Lavandeira, also known as Perez Hilton, and 25 anonymous PerezHilton.com posters in Ohio state court after Lavandeira published an email containing homophobic slurs that Wargo sent to the blog from her work email account.

The posted version of the email included Wargo's full name, work email address, and the name of her employer. Wargo's employer fired her after it became aware of the email and received harassing emails and telephone calls. Wargo's complaint alleges that publishing her personal information violated PerezHilton.com's terms of use and privacy policy.

In the lawsuit, Wargo seeks $25 million in damages on thirteen claims, including invasion of privacy through publication of private facts, breach of contract, fraud, negligence, defamation, and both negligent and intentional infliction of emotional distress. Wargo also seeks a preliminary injunction against Lavandeira to prevent him from publicizing her personal information on his website.

Update:

08/27/08 - Case was removed to the United States District Court, Northern District of Ohio

10/03/08 - Court granted Lavandeira's motion to dismiss for lack of personal jurisdiction and entered judgment against Wargo.

 

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Content Type: 

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Threat Source: 

Google Blogs

CMLP Notes: 

Updated 2/3/09 - VAF

Priority: 

1-High

Berkman Cyberlaw Clinic, EFF, and Net Law Luminaries File Amicus Brief in Lori Drew Case

We've posted before (here and here) on the tragic Megan Meier suicide case, in which a 13-year-old neighbor of Lori Drew committed suicide in October 2006 after a "boy" she met on MySpace abruptly turned on her and ended their "relationship." In

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New Jersey Prosecutors Set Sights on JuicyCampus

New Jersey prosecutors have subpoenaed the controversial gossip site JuicyCampus as part of an investigation into whether the site is violating the New Jersey Consumer Fraud Act.

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GreatSchools, Inc. v. Maura Larkins

Date: 

03/13/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Maura Larkins

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Description: 

Maura Larkins, who maintains the San Diego Education Report website and writes about education attorneys in San Diego, created a page on her website where she reproduced material from a forum thread from SchwabLearning.org's Parent-to-Parent message board. Her purpose in doing so was to explain and illustrate her suspicion that a pseudonymous poster to the message board, "asearchers," was an attorney posting comments in an effort to discredit special education parents who had complained that their children were not receiving appropriate educations.

On March 13, 2008, a representative of GreatSchools, Inc., the company that owns SchwabLearning.org, emailed Larkins, demanding that she cease and desist from using SchwabLearning.org's content on her site. The email stated that reproducing message board content without permission was a violation of the GreatSchools Terms of Use. It further indicated that GreatSchools would take legal action if Larkins failed to remove the content within two business days.

Larkins has not removed the material (as of 3/19/08), citing a fair use notice that appears on the homepage of her website.

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CMLP Notes: 

Status checked on 6/4/2008, updated link to asearchers pages on Larkins' site.  No mention of new threats from GreatSchools on her site. (AAB)

Highlights from the Legal Guide: Getting Your Words and Other Content Out to the World

This is the second in a series of posts calling attention to some of the topics covered in the recently launched Citizen Media Law Project Legal Guide. The first topic we took up was choosing a business form for your online publishing activities. In this post we discuss the various issues, both legal and practical, that arise when you select a platform for your online speech.

Subject Area: 

Privacy Policy

A privacy policy is a statement placed in an easily visible place on a website informing users about how the website deals with users' personal information. Privacy policies generally explain whether and how users' information will be shared with third parties, including parent companies or subsidiaries. It frequently explains whether and how the website uses cookies.

Terms of Use

Terms of use (or "terms of service" or "terms and conditions") generally are a statement placed on an easily visible place on a website that governs the relationship between the site and its users or visitors. Users explicitly agree to the terms when they sign up for an account and, depending on how you write the terms, visitors may implicitly agree to them when they use the site.

Evaluating Terms of Service

This section discusses and compares the key "terms of use" (or equivalent sections) you are likely to encounter when you are evaluating various online services. We've grouped these services into three general categories: social networking sites, blog-hosting services, and web-hosting services. Of course, some of these categories blend into each other, but you should be able to get a general idea of how the terms of service vary among the various types of sites and between individual sites themselves.

Legal Issues to Consider When Getting Online

Once you decide to publish online, whether by posting in a forum, joining a discussion group, blogging, or starting your own website, there are a host of legal issues that may come into play. Understanding your legal rights -- and potential sources of liability -- can help you make an intelligent choice as to what platform you use and what precautions you take when you speak online. Some of the most important issues to consider are free speech protections, anonymity, ownership of content, and vulnerability to others' copyright claims.

Using a Blog-Hosting Service

If you're looking to start a blog, a blog-hosting service may be a good place for an amateur, or sometimes even a professional, to launch one. If you're interested in getting online as quickly as possible, and don't need a formal blog, you might also want to consider using a social networking site, such as Facebook or MySpace, which will allow you to create a blog-like profile page.

Facebook v. Jon Swift

Date: 

11/01/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Jon Swift (blogger pseudonym)

Type of Party: 

Large Organization

Type of Party: 

Individual

Publication Medium: 

Blog
Social Network

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Facebook terminated the profile of Jon Swift, a blogger writing under a pseudonym, for violating its terms of use prohibition on registering a profile under a fake name. Swift wrote about the profile termination and posted the email (from Aubrey, a Facebook customer service rep) on his blog, sparking discussion about the incident in the blogosphere.

In criticizing Facebook, Swift wrote:

By banning bloggers who use pseudonyms Facebook has declared war on the blogosphere. More and more bloggers have been using Facebook as a social networking tool, but how useful will it be if so many bloggers will be left out.

A Facebook group named "Let Jon Swift Back Into Facebook" sprang up, and bloggers began writing in support of Swift. A few hours later, Swift received another email from Facebook restoring the account. Jerry from Facebook Customer Service wrote that the account was not a violation of the ban on fake profiles:

[S]ince others on the site seem to know you by this name, and since you don't appear to be using the name to impersonate or to hide your identity, we have determined that you are not violating these Terms.

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Some Pointers on Website Terms of Use

Robert Niles, editor of the Online Journalism Review, posted a helpful article today about updating website Terms of Use in order to minimize inter-user abuse and conflict. He advocates telling users in plain language what rules the website expects them to follow when they post comments and suggests rules prohibiting impersonation, offline harassment, and the creation of multiple unlinked user accounts. He also recommends that websites adopt explicit rules setting forth the parameters for permitted commercial solicitation (if any). His remarks on impersonation are worth excerpting in full:

Insist that readers be who they are, and not attempt to pass themselves off as someone else. If you[r] site allows pseudonymous posting, insist that readers use a consistent handle or account name, and take whatever technical steps you can to keep people from posting under others' names.

Don't allow readers to mislead others about their identity, either. Warn readers against omitting information from their profiles or posts that would lead other readers to believe that they are someone other than who they are. Elected officials shouldn't be allowed to pretend that they are not when posting to a discussion about local politics, to use the Telegraph's example.

These recommendations are important from a practical, ethical perspective more so than from a legal perspective because CDA 230 (47 U.S.C. § 230(c)(1)) gives website operators immunity for publishing content submitted by others under most circumstances. From this practical, ethical perspective, however, I agree wholeheartedly with Niles. There is a difference between respecting and promoting a user's ability to engage in anonymous speech and allowing a user to mislead others and manipulate the tools put at his/her disposal. Perhaps a Term prohibiting impersonation would be hard to enforce (maybe not?) -- at the very least, a Term of this kind puts users on notice about what kind of community you want to create and makes a statement about engaging in speech and debate responsibly.

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Pages

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