Although deVere v Opinion Corp has received little attention beyond some US law journals in the days immediately after that ruling, it was considered a key case by some in the ongoing war between websites like PissedConsumer, and the thousands of companies that are finding their reputations coming under increasing attack by the anonymous postings of individuals on such sites.
As noted yesterday in Part One of this special report, the case in question – initially brought by deVere in July 2011 against New York-based Opinion Corp, which does business online as PissedConsumer.com – highlights the difficulties and expense that even very large companies like deVere can incur when they attempt to silence such online criticism.
Among the reasons District Judge Frederick Block cited for his decision in the deVere/Opinion Corp case was that there was “no likelihood that a consumer visiting PissedConsumer.com would mistakenly believe that deVere sponsored or approved the contents of that website”.
As a result, he found that deVere failed in its attempt to prove that Opinion Corp’s use of deVere’s name violated a key section of the Lanham Act, the main US law that protects businesses against trademark infringement and false advertising.
“The term ‘pissed’ in the website name is clearly negative, as is the commentary on the website about deVere’s services,” District Judge Federal Block noted, in explaining why consumers would be unlikely to be confused into thinking the website was a deVere entity.
Other judges in similar cases in recent months and years have come to much the same conclusion, in the US at least, where freedom of speech concerns routinely trump allegations of trademark and copyright infringement and dilution.
This doesn’t stop companies that feel their reputation is being unfairly maligned from turning to the courts, however, at least initially.
‘In the lawsuit business’
The result, says a lawyer who regularly represents gripe sites in court, is – as he says he often explains to his clients – “that they [the companies behind the sites] are essentially in the lawsuit business, or are partners with me in the lawsuit business, because they are essentially in the business of being sued, or being threatened with being sued”.
One of the oldest and still-running gripe sites, RoyalDutchShellplc.com, is still active, in spite of the oil giant’s efforts to silence it, dating back years. Published reports have noted that although the creators of RoyalDutchShellplc.com are based in the UK, the site is incorporated in the US because it is thought to be less vulnerable to being closed down there.
‘Future is not in sending out lawyers’
Ronald D Coleman, a lawyer who was part of the team that represented the website in question and a blogger on the subject of internet copyright and trademark issues, said the deVere case was the latest in a series of legal rulings that have shown that “in the US at least, the future is not in sending out lawyers at $600 an hour to chase [website companies] around”.
Instead, companies that are targets of consumer complaints are finding that the way forward is to “engage with them in the forum that the consumers choose – for example, on the websites that post the consumers’ comments”, Coleman, who is a partner in the New York law firm Goetz Fitzpatrick LLP, added.
Meanwhile, Coleman noted that although the deVere v Opinion Corp case may be viewed as potentially precedent-setting in the US, it is of little relevance to courts elsewhere, as it “was based on several peculiarities of US law”.
Do consumers benefit?
As most executives whose companies have been criticised by anonymous commentators on gripe sites will tell you, such postings invariably do harm to their business and reputation.
Less obvious, though, is whether consumers ultimately benefit.
Some say that because larger, better-known advisory firms are more likely to be targeted by gripe sites, consumers may be scared away from companies that actually might be able to provide a better service, with greater resources and protection, than some smaller, unknown “cowboy” operators that may not have existed long enough to have developed a gripe site presence.
Those who think gripe sites have the potential, at least, to be a force for good typically point to the case of ipaidabribe.com, an Indian consumer action website that is said to have begun to change India’s tenaciously bribe-greased culture for the better.
Ipaidabribe.com was launched in 2010 by two Bangalore residents who had spent time in the US and UK, and who reportedly were dismayed to rediscover how widespread the use of bribes was back home in India, as compared with other countries.
In June, a similar website, Korupedia.com, was launched in Indonesia, receiving two million hits in its first week, according to a story on the Voice of America’s website, which noted that corruption scandals are currently commonplace in Indonesia.
Andrew Drummond, a British investigative journalist who is based in Thailand and who occasionally blogs from there about dodgy offshore financial services businesses – mainly, he says, because he believes it is important that people are warned off of such enterprises – thinks consumers probably do benefit on some level from the existence of gripe sites.
“But I’m in two minds about them,” he added.
“What I don’t agree with is anonymous complaints. If PissedConsumer.com said people had to identify themselves, and to give their real names and cite specific examples, it would make their postings into formal complaints that would have some value.
“Instead, if you look at some of these internet forums, it’s absolutely disgusting what some people are saying, and the way they behave.
“That said, in the old days, certainly in the UK, fly-by-night [businesses] would get exposed by newspapers, which would have consumer columns and investigative journalists and so on, but these have all gone by the board now; newspapers don’t want to spend the money, they just want to re-write the net, and they are constrained by advertising considerations. Some big organisations invest a lot in lawyers who trawl looking the internet looking for potential libels.
“Yet people are being ripped off, on a global scale at the moment, and it seems there’s not much that anyone can do about that."
The future: end of anonymity?
Drummond is among a number of observers of the gripe site/online commentary phenomenon who believe that if online criticism is to maintain any credibility, the anonymity of those posting comments must eventually give way to some form of accountability.
“Probably one of these websites of the PissedConsumer.com type will ultimately survive, and establish itself as 'the' place to go to post a complaint, and it will probably be the survivor because it is just a bit more careful than the others about the way it does things, rather than simply posting every wild allegation that people write," Drummond said.
“And if it actually is a bit more selective, with an editor in charge who has a bit of knowledge about the business, it could end up actually providing people with a real service.”