On January 23, 2012, the Guadagnini Violin Shop (the "Shop") and owner Chunyee Lu filed suit in Illinois state court against a then-anonymous online reviewer. The complaint alleged that on January 21, 2011, a person using variations on the screen name "TruthTeller1790" posted negative reviews of the Shop on multiple user-review sites, including Yelp and Kudzu. All of the reviews were posted from the same IP address. Plaintiffs attached copies of the contested reviews to the complaint, and alleged that the reviews contained numerous libelous statements, such as allegations that Guadagnini Violin Shop performed unnecessary repairs and sold overpriced and falsely-identified instruments.

The complaint alleged counts of defamation (per se and per quod), false light, and tortious interference, and sought money damages.

On February 7, 2012, plaintiffs filed an amended complaint, identifying Eric Swanson as "TruthTeller1790." According to the amended complaint, plaintiffs traced the IP address linked to the reviews to cable provider RCN Corporation, which identified Swanson as that address's subscriber. The amended complaint alleged that Swanson operated a competing Chicago violin shop.

In addition to the original four counts of defamation, false light, and tortious interference, the amended complaint added counts of violations of Illinois' Consumer Fraud and Deceptive Business Practices Act, its Uniform Deceptive Trade Practices Act, and a common-law trade disparagement claim. The amended complaint also added requests for punitive damages.

Ascentive, LLC, a software company, filed suit against Opinion Corp. d/b/a PissedConsumer.com on September 24, 2010, claiming that Opinion Corp., through its PissedConsumer website, infringed on Ascentive trademarks. The complaint alleges seven claims for relief against Opinion Corp.:

• The first and second claims allege that Opinion Corp. violated the Civil Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. 1961-1968, by conspiring to extort and solicit money from organizations that are the victims of complaints on the PissedConsumer website.
• The third and fourth claims allege that Opinion Corp. violated the Lanham Act and Ascentive's common law trademark rights, respectively, by using Ascentive trademarks in web addresses such as Ascentive.PissedConsumer.com and FinallyFast.PissedConsumer.com.
• The fifth through seventh claims allege that Opinion Corp. participated in unfair trade practices through its PissedConsumer website, resulting in interference with contractual relations and unjust enrichment.

In its answer, Opinion Corp. asserted that Ascentive's claims were barred by 47 U.S.C. § 230 (CDA 230). CDA 230 provides that "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." It also provides that "No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." For more information on CDA 230, see the corresponding CMLP Legal Guide entry.

Ascentive filed a Motion for Preliminary Injunction on November 23, 2010, attempting to enjoin PissedConsumer from using Ascentive's trademarks in the site's metadata and as subdomains. In its Memorandum in Support of the Motion for Preliminary Injunction, Ascentive maintained that PissedConsumer holds itself out to be objective, but manipulates postings on its site and uses those to attempt to extort money from the victims of these complaints, in violation of RICO. Regarding the alleged trademark infringement, Ascentive argued that PissedConsumer has used Ascentive's trademarks in the site's metadata, causing PissedConsumer sites to appear prominently in Internet search results. According to Ascentive, this creates "initial interest" confusion in violation of the Lanham Act. Ascentive additionally claimed that its trademarks were used in subdomain names and as prominent text on the PissedConsumer sites, which further leads to consumer confusion resulting in trademark infringement.

In its Opposition Memorandum, Opinion Corp. claimed that Ascentive's request for a preliminary injunction was essentially a request for prior restraint on speech that is protected by the First Amendment and therefore invalid. Opinion Corp. argued that its use of Ascentive trademarks constituted expression protected by the First Amendment. Finally, Opinion Corp. argued that the content posted on its sites should be protected under CDA 230. It contended that "sites such as PissedConsumer.com fall squarely within the protection of the statute, which applies to all state law claims, however styled, so long as the act complained of is the publication of third party content."

After a hearing on Ascentive's Motion, and at the request of the presiding judge, Opinion Corp. submitted a bench brief discussing the application of fair use doctrine under the Lanham Act claim in this case. Opinion Corp. asserted that use of a trademark is protected when it is "fair[] and in good faith only to describe the goods and services of [the complaining] party." In this case, Opinion Corp. argued, PissedConsumer used the Ascentive marks in good faith as a means of cataloging sites, which constituted fair use.

Ascentive filed a reply letter arguing that a free speech defense is unavailable to sites creating confusion through a domain name. It also asserted that PissedConsumer is not protected by CDA 230, which provides no immunity for intellectual property claim or for content created by PissedConsumer, which include the self-created subdomains.

On December 13, 2011, in a rather lengthy opinion, the court rejected Ascentive's motion for preliminary injunction. The court ruled that there was no likelihood of confusion in PissedConsumer's use of Ascentive's trademarks, finding that "no reasonable visitor" to the various PissedConsumer sites would assume they are affiliated with Ascentive (or any other company), because the use of "pissed" in the domain name connotes criticism and negativity. Regarding use of the marks in metadata, the court found this did not create a likelihood of confusion, because PissedConsumer and Ascentive do not compete with each other, and because search engines generally do not use metadata to determine results. Finally, the court held that PissedConsumer is likely to fall within the protections of CDA 230 regarding the plaintiff's state law claims (unfair trade practices and consumer protection).

The court stated that this decision was without prejudice to Ascentive's opportunity to seek a permanent injunction after discovery has been completed.

John Giordano, president of a Florida-based addiction treatment company, filed suit (individually and on behalf of his company) against Donna Romeo over a posting on consumer-reporting website Ripoff Report. The post describes the treatment facility's conditions in harsh terms, and states that "one of the owners is a convicted felon."

The complaint names both Romeo and Ripoff Report's parent company, Xcentric Ventures; it alleges defamation (libel and libel per se) against Romeo, and seeks to permanently enjoin Ripoff Report (through Xcentric) from continuing to publish the post.

According to court transcripts, Giordano and Romeo eventually reached an agreement according to which the court would enter an injunction against Romeo, requiring her to ask Ripoff Report to remove the post. Ripoff Report's policy is to not remove posts. After Ripoff Report refused to remove the post, the trial court issued a temporary injunction against Xcentric. In so doing, the court found that because of the refusal to remove, Xcentric became "the publisher of the statements," thus outside the protections of 47 U.S.C. § 230.

Xcentric appealed, but withdrew that appeal shortly thereafter. A newly-assigned trial judge then dismissed the case against Xcentric, citing a number of cases for the proposition that Section 230 protects Ripoff Report. Giordano's appeal is pending in Florida's Third District Court of Appeals.

UPDATE:

On December 28, 2011, the Third District Court of Appeals ruled in favor of Xcentric. In a brief five-page opinion, the court stated that while Xcentric's business practices were "appalling," and "created a forum for defamation," Section 230 provides complete immunity for internet service providers like Xcentric against actions based on third-party postings. The court's decision is not final until the disposition of any timely motion for rehearing that Giordano might file.

Usha Rajagopal, a plastic surgeon in San Francisco, sued ten John Does for defamation and various business torts in Virginia state court.  The claims stem from reviews of Rajagopal posted by the defendants on Google.com. Rajagopal also subpoenaed Google to determine the identities of five of the Does.

One of the Does, Cannoli38, moved to quash the subpoena.  He argued that because he and the other Does have a First Amendment right to speak anonymously, Rajagopal must make a five-part showing that satisfies the Dendrite standard to identify the Does.  Cannoli38 argued that Rajagopal did not give the Does noticed as required by Dendrite, nor did she provide any evidence supporting her claims against the Does.

Cannoli38 alleged that the Does' reviews consisted solely of opinion statements, which are protected by the First Amendment, and restatements of an article from SFWeekly, a San Francisco news site, that posted a story about Rajagopal's advertising practices and allegations brought against her by the California Medical Board.  Cannoli38 argued that the balance of the equities weighed against Rajagopal.

Cannoli38 also called upon Rajagopal and her attorney to be sanctioned, as he argued the lawsuit is meritless, has no ties to Virginia, and was meant to be an end run around California's anti-SLAPP law, which would likely prevent Rajagopal from pursuing the case in her home state.

My wife and I went to Tiamo Resorts in the Bahamas on a vacation in March 2010. On our last night there, all of the cash in our luggage was stolen, amounting to $7600. We were told by the owners of the resort that his insurance would cover this loss, and he asked us to please be discreet. We were rushed off the resort and taken to the airport in Congo Town for our connecting flight to Nassau. While at the airport, we filed a report with the police. The police also took pictures of the luggage of our neighbors at the resort, who had their suitcase slashed into. Upon check-in at the resort, we had asked if the guest cottages had safes, and we were told that all was secure, and we could leave everything out. In other words, there were no in-room safes.

In the following months, we were discreet, but then we felt it was our responsibility to submit an honest review on TripAdvisor.com. (We also uncovered "visitor" reviews of the resort written by the resort's owner and reported this to the website.) We recently received a threatening letter from the law firm representing this resort. In this letter, the owners of the resort essentially call us liars and begin to twist the account of what happened. Included in this submission is a copy of that letter, and an ensuing letter where the resort asks us to remove ALL reviews. I've also included an email where the owner of the resort thanks us for being so cooperative and not making a scene the morning of our departure after we reported the theft.

There is a link to an article from the Nassau Guardian reporting on a separate theft at the resort that happened in April. The resort is attempting to bully us into removing our review from ALL travel sites, and we never agreed to do so. In fact, in the initial letter from their law firm, Tiamo states that they have no problem with people expressing their opinions, positive or otherwise. It seems that is not the case. They want to remove any negative reviews from the travel websites.