SBM Blog is grateful for a large readership that frequently lets us know that our efforts are appreciated. But you seldom let us know what you think via our comment section. We are envious of blogs like Volokh Conspiracy that attract vibrant commentary, but worry about what we might be dealing with if the floodgates open. Is it possible to have an online comment policy that both promotes a sense of community and keeps the crazies out? "The Psychology of Online Comments" in the New Yorker suggests it probably isn't, especially if commenters are allowed to comment anonymously:
One of the most common critiques of online comments cites a disconnect
between the commenter’s identity and what he is saying, a phenomenon
that the psychologist John Suler memorably termed the “online disinhibition effect.” The theory is that the moment you shed your identity the usual constraints on your behavior go, too—or, to rearticulate the 1993 Peter Steiner cartoon, on the Internet, nobody knows you’re not a dog. When Arthur Santana, a communications professor at the University of Houston, analyzed
nine hundred randomly chosen user comments on articles about
immigration, half from newspapers that allowed anonymous postings, such
as the Los Angeles Times and the Houston Chronicle, and half from ones that didn’t, including USA Today and the Wall Street Journal,
he discovered that anonymity made a perceptible difference: a full
fifty-three per cent of anonymous commenters were uncivil, as opposed to
twenty-nine per cent of registered, non-anonymous commenters.
Slaw's "Cyber Crime Example of the Importance of Reconciling Your Trust Accounts Each Month" tells the story of the cybertheft of $1.5 million from a California escrow firm's trust account. According to a petition filed by the California Department of Corporations (DOC), thieves wired $432,215 to an account in Moscow on December, 2012, then more than $1.1 million in January, 2013, to an account in China. The funds were stolen from more than 100 escrow accounts. The escrow company reported
the theft in February, 2013, two months after the first unauthorized transfer. It was able to recover the wire sent
to Moscow, but not the funds wired to China.
This story from the ABA Journal reads like a pitch for a TV drama in development: "DC lawyer pursues suit to unmask authors who changed her Wikipedia page." Susan Burke, a personal injury lawyer whose work has involved suing the American military or military contractors, including Blackwater, and representing former detainees of Abu Ghraib prison in a suit against interrogators and translators, is suing to find out the names of the two pseudonymous editors who inserted false information into her Wikipedia profile. National Law Journal (sub. req.) also has a story.
A website operated by an open-records advocate is being sued for copyright and trademark infringement for posting safety and technical standards developed by nonprofit groups. The standards, posted in their entirety, were incorporated by reference in federal regulations. The lawsuit against Public.Resource.org claims that the standards are costly to develop, and the cost is underwritten by sales of the content. Public Resource says that the standards lost their copyright protection when they were incorporated by reference into government regulation.
The New York Times reports that an investigation by the New York Attorney General’s office of Craigslist uncovered dozens of companies looking to procure fake online reviews or offering to write them for clients, in violation of New York consumer law. The list of professionals snagged in the probe included lawyers, but no law firms are among the 19 companies that reached agreement with the attorney general.
The online consumer review company Yelp has sued a California law firm alleging that the McMillan Group bankruptcy firm posted a flurry of fake reviews after a negative review appeared on the Yelp website. In legal-speak, Yelp is claiming breach of contract, intentional interference with contractual relations,
and two counts relating to California’s false advertising statutes. Cincinnati.com reports that the McMillan Group previously won a $2,700 small claims award of $2,700 against Yelp, claiming that Yelp had coerced it into an advertisement
contract in order to receive favorable reviews. But Yelp successfully argued that the firm’s
case was covered by an arbitration clause in the terms of service.
The Grand Resort Hotel and Convention Center in Tennessee sued TripAdvisor for defamation after being ranked #1 on TripAdvisor's Dirtiest Hotels list in 2011, won, and was awarded $10 million. This week, the 6th Circuit Court of Appeals overturned the award, holding that TripAdvisor's list is speech protected by the First Amendment. The director of the Digital Media Law Project at Harvard told Reuters that the decision is “a victory for online review sites by letting them not only publish user comments but also draw conclusions.”
For Grand Resort Hotel and Convention Center, TripAdvisor's list showed a photo of a ripped bedsheet accompanied by a quote, “There was dirt at least 1/2" thick in the bathtub which was filled with lots of dark hair;” a thumbs down icon; and the statement “87% of reviewers do not recommend this hotel.” ABA Journal reports that Grand Resort closed in 2012 and has been purchased by a holding company.
It takes a strong stomach to read the list and the opinion, but there is some perverse satisfaction to be had in being reminded that your own nightmare hotel experiences pale in contrast to others. From the opinion:
No reader of TripAdvisor’s list would understand Grand Resort to be, objectively, the dirtiest hotel in all the Americas, the North American continent, or even the United States. TripAdvisor did not conduct a scientific study to determine which ten hotels were objectively the dirtiest in America. ...
The quotations regarding other hotels on the “2011 Dirtiest Hotels” list confirm that the list cannot be reasonably understood as asserting that the hotels on the list are, in fact, the ten dirtiest hotels in America. Beside each of the nine other hotels on the list is one of the following:
Hotel #2: “Had to go buy socks so my feet wouldn’t touch the carpet.”
Hotel #3: “They have dead roaches all over the hotel.”
Hotel #4: “The bathtub was full of dirty black stuff.”
Hotel #5: “Hold your nose for the garbage smell.”
Hotel #6: “Probably more sanitary to sleep in the bathroom of the room.”
Hotel #7: “Crusty white stains on the blankets and sheets.”
Hotel #8: “Mouse feces located around the base of the bathroom.”• Hotel #9: “Camp out on the beach instead.”
Hotel #10: “25 bug bites between the two of us.”
It is clear that these are dramatic examples of TripAdvisor’s users’ experiences at these various hotels and serve the function of entertaining readers. Thus, the hyperbolic nature of these quotes highlights why the general tenor of the entire “2011 Dirtiest Hotels” list supports our conclusion that the list cannot reasonably be understood as asserting that these are, in fact, the ten dirtiest hotels in America. Further, the lack of a recurring theme of what TripAdvisor’s users considered to be dirty in each of the hotels on the list underscores why any reader would understand the list not to be communicating anything more than the experiences of individual users of TripAdvisor. In other words, the meaning of “dirtiest” is not easily pinned down when read beside these quotations; therefore, readers would not interpret “dirtiest” as making an assertion of fact. See Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997) (“The vaguer a term, or the more meanings it reasonably can convey, the less likely it is to be actionable.”). Therefore, the general tenor of the entire “2011 Dirtiest Hotels” list supports our conclusion that TripAdvisor’s placement of Grand Resort as the dirtiest hotel in America cannot reasonably be understood as communicating an actual fact about Grand Resort.