Politics and Law

Editors' note: This is a guest post. See Michael Songer's bio below.

Throughout the 1990s and 2000s, we have seen a number of well-known legal disputes: legality of peer-to-peer services such as Napster and Grokster, cybersquatting, laws (trying) to regulate porn, even "veejay" Adam Curry trying to use the MTV domain name.

As we head into 2010 and beyond, here are some legal issues that are likely to careen through cyberspace in the next few years.

1. Lawsuits related to stupid/silly conduct shown on the Internet.
The assimilation of broadband brought with it those "viral videos": Star Wars Kid, Numa Numa Dance, Aleksey "Impossible is Nothing" Vayner, and the like. The latest fad seems to be taking videos of crude behavior and posting it for all to see--think of the two girls bathing in the Kentucky Fried Chicken kitchen, or the Domino's employees creating a "special" meal for a customer.

Someone will be offended, someone will sue. In some cases, the lawsuits make sense (violating health codes for the KFC and Domino's videos); in other cases, they don't (Star Wars Kid sued, and Aleksey Varner threatened a suit, though the legal basis for these is shaky).

Expect to see a rise in these types of lawsuits related to conduct shown on the Internet and calls for Congress to do something. What, exactly, can be done is less clear; it's hard for the legal system to regulate conduct that, while not breaking the law, is merely stupid. But that won't stop people from trying and lawyers from garnering headlines.

2. Lawsuits related to social media.
The last few years have seen a number of lawsuits brought against Facebook and MySpace for conduct occurring on those sites--think of the Megan Meier case (Megan Meier was the teenager who committed suicide after a woman pretended to be her friend, and then turned on her).

The government prosecuted the offender in that case, though the legal basis for the prosecution is less than clear, and an appeal is under way. And there have been calls for regulating what you can and cannot do (no sock puppets!) on these sites.

These are likely to continue for the simple reason that more and more people are using these new technologies. With that increased use comes the increase in libelous statements, crude conduct, even illegal activity (think prostitutes using Craigslist to advertise their services).

I'm sure--if it hasn't already happened--that someone will sue over some "tweet" in the next year. Expect more of these lawsuits.

3. The next battle in the copyright wars.
The $1 billion battle between Google's YouTube and Viacom is churning away, with no end in sight. At issue is the liability of sites like YouTube for hosting content posted by others.

Like the earlier Napster decision, this case has major ramifications for content on the Internet. However, just as Napster begat legal file sharing (iTunes), consumer demand might work out a solution faster than the courts.

YouTube recently announced a deal with Sony to stream movies, with television shows on the horizon. But whatever the final outcome of the YouTube lawsuit, nagging copyright issues associated with liability and fair use of content uploaded into social sites will not go away.

Recently, the Associated Press threatened to sue aggregators and clamp down on the use of their articles, and others are sure to follow this path. Expect more content owners to use copyright lawsuits to shape what we view and read on the Internet.

4. Blogger liability for the comment section.
Currently, bloggers cannot be sued for libelous statements posted in the comment section of their blogs. Something called "section 230" (after the particular legal code) immunizes bloggers from legal harm caused by another's comments (bloggers, however, can be sued for libelous statements that they post).

This immunity was enacted in the mid-'90s and was designed to protect the "publishers" on the Internet at that time: the AOLs, CompuServes, and ISPs that enabled Internet access. The law never contemplated the explosion of bloggers, MySpace authors, and other "social publishers." And the law never contemplated the accompanying (usually anonymous) comments to those posts, as well as the ill will associated with the all-too-common flame wars.

Several courts have expressed dissatisfaction with the blogger immunity--particularly when the blogger knows that the comments are defamatory or wrong. Expect more challenges to this immunity, and perhaps calls for Congress to roll back section 230.

5. The taxman cometh.
Anyone who has read a phone bill has seen a dizzying array of taxes, assessments, and special charges. Your Internet access is free from such taxes until at least 2014, due to Congress and the Internet Tax Freedom Act. The law, passed in 1998 and extended by the Bush administration, prohibits federal, state, and local governments from taxing access to the Internet, and it bans "Internet-only" taxes such as bandwidth or e-mail taxes.

States remain free to tax sales on the Internet.) Of course, that was before the current economic crisis, and the general rise in taxes on everything from mobile phones to cigarettes. A bill has been introduced to make the tax ban permanent, but nothing is "forever" with Congress. Expect to see calls for Congress to tax these areas before 2014.

Of course, given a steady pace of new Internet technologies that allow different ways for humans to interact with one another, more unique, complex, and downright strange events will occur that give rise to legal disputes. (Think "upskirt" cams.)

The legal system is flexible and has dealt with much over the last 10 years, in many instances driving Internet growth in ways both good and bad. The next 10 years promise much of the same.

The lawsuit filed by a San Francisco chiropractor against a patient who wrote a negative review of him on Yelp was settled on Friday, according to the attorney for the defendant.

Christopher Norberg reached a settlement with the chiropractor who sued him for libel over a negative Yelp review.

(Credit: Christopher Norberg)

"This case was settled with the mutual satisfaction of both parties," said Michael Blacksburg, who represented patient Christopher Norberg. The terms of the settlement agreement are confidential and the March trial date will be canceled, he said.

The case had spurred debate over how to best balance the rights of consumers to express themselves on community forum sites with the rights of businesses to protect their reputation.

Shortly after the court-required mediation hearing was completed Friday afternoon, Norberg replaced an earlier Yelp posting in which he said he had been sued by chiropractor Steven Biegel with a short posting that reads:

"A misunderstanding between both parties led us to act out of hand. I chose to ignore Dr. Biegel's initial request to discuss my posting. In hindsight, I should have remained open to his concerns. Both Dr. Biegel and I strongly believe in a person's right to express their opinions in a public forum. We both encourage the Internet community to act responsibly."

Norberg was advised by his attorney to refer all requests for comment to his lawyer. Calls to Biegel and his lawyer, Eric Nordskog, were not immediately returned on Friday.

"I'm really glad for both of them that they can put this dispute behind them," said Blacksburg. "I hope this begins the public conversation on how to communicate using the resources of the Internet."

Biegel sued Norberg for defamation nearly a year ago over a posting in which Norberg had suggested that Biegel's billing practices were dishonest because he had billed Norberg's insurance company an amount that was four times what he had quoted to Norberg for two office visits in 2006, according to court documents. Biegel had allegedly told Norberg that the price differential was due to the additional time and effort his office spends dealing with the insurers.

Biegel's lawyer contended that Norberg's comments on Yelp were statements of fact and thus libelous. Blacksburg maintained that the comments were opinion and therefore were constitutionally protected speech.

Norberg replaced an earlier review on Yelp with this posting after he and his former chiropractor settled the defamation lawsuit.

(Credit: Yelp)

Christopher Norberg, defendant in a lawsuit accusing him of libel for a negative review he posted on Yelp.

(Credit: Christopher Norberg)

San Franciscan Christopher Norberg went to a chiropractor after being injured in a car accident in 2006. After a disagreement with the chiropractor over billing, he posted a negative review of the business on Yelp suggesting that the doctor was dishonest. Now he is facing a defamation lawsuit that could chill self-expression on the popular gripe Web site.

"If Christopher loses then anyone on Yelp who writes a negative review better be careful," said Michael Blacksburg, an attorney representing Norberg. "This strikes at the heart of Yelp's business model and other Web sites that provide a bulletin board for people to state what they think of businesses in their community."

"This is clearly Christopher Norberg's version of conversations with the doctor relating to a billing dispute and his opinion of how the doctor was behaving," Blacksburg said on Tuesday. "This is clear opinion that falls squarely within constitutionally protected speech."

Eric Nordskog, the attorney for chiropractor Steven Biegel, said the case comes down to whether Norberg's comments are considered statements of fact or opinions.

"Dr. Biegel has no problem with people expressing their views and opinions about his service," Nordskog said. "But there is a line where if someone, even on Yelp or on the Internet, publishes a false statement of fact as opposed to an opinion, then that person can and should be held responsible for their words."

Norberg, a 26-year-old custom-furniture builder, was advised not to discuss the case publicly, but has a Web site with related information. Biegel did not return a call seeking comment.

The two sides are scheduled to sit down for court-required mediation on Friday, but Norberg said he isn't optimistic that the case will be resolved then. A March 2 trial date is on the San Francisco Superior Court calendar.

The lawsuit, filed February 25, 2008, alleges that Biegel has suffered loss of reputation and business as a result of the review and seeks punitive damages. According to the lawsuit, the review allegedly contained false statements and inaccuracies that suggested Biegel was dishonest and accused him of fraudulent billing practices.

Billing dispute at center
Norberg was treated twice by Biegel before a friend of his told him he had had billing problems with Biegel's office, he wrote in his review. Norberg, who said he did not have medical insurance, was not asked to pay for the visits because Biegel's office said it would try to bill his auto insurance company instead, the review said. Even though the insurance company refused to pay, Norberg did not initially receive a bill from Biegel, he said.

In the meantime, Norberg began getting treatment from another chiropractor who suggested he sue the driver of the car that hit him, Norberg's review said. Norberg eventually settled the case, the review said.

After learning that Biegel's bill to the auto insurer was $550 instead of $125, which was the amount quoted for two visits, Norberg called Biegel, his Yelp review said. Norberg said that Biegel demanded he pay $550 during that phone call, but then said he would waive the fee entirely, according to the review. Biegel later called Norberg and explained that his office bills insurers at a higher rate than patients who pay for service directly because of the higher office costs in dealing with the paperwork and delays in receiving payment, court documents said.

Biegel's office then made a call to Norberg's auto insurance company and learned about the settlement and then called Norberg and demanded he pay $125, the lawyers said. Norberg paid the bill and posted a review of Biegel with a one-star rating on Yelp on November 16, 2007.

"I didn't feel comfortable with their tactics," Norberg wrote in his review after earlier writing that the office had been aggressive in trying to get him to come back for treatment before the billing dispute. Biegel "couldn't give me a straight answer as to why the jump in price...He called me back to cover his ass...(and says) he runs a business and would stick it to insurance companies," the review said.

"I don't think good business means charging people whatever you feel like hoping they'll pay without a fuss. Especially considering that I found a much better, honest chiropractor," Norberg wrote at the end of his review.

In a letter sent to Norberg dated December 7, 2007, Biegel asked Norberg to remove the review, saying it "unjustly characterizes me as unethical and dishonest" and attributed the dispute to a misunderstanding of his office procedures.

"I did not do anything unethical or illegal in our entire dealings," Biegel wrote. "It has never been my policy or intention to take advantage of an individual or insurance company."

On January 8, Norberg got a letter from Biegel's lawyer threatening him with a lawsuit over the review and two days later Norberg removed the review and rating from the site. The following month, Biegel sued.

Biegel, who was a "sponsored" advertiser on Yelp and encouraged customers to write reviews on the site, received about as many referrals per month from Yelp while the review was up as before, but fewer after the lawsuit was filed, Blacksburg said, citing Yelp documents.

A Yelp spokeswoman said she did not know of any other cases in which a business sued a Yelp user over a negative review.

"We won't comment on specific litigation, but in general, lawsuits like this are pretty uncommon," Yelp spokeswoman Stephanie Ichinose wrote in an e-mail.

"Most businesses engage constructively with customers who haven't had a good experience," she wrote. "When that doesn't work, they recognize that they can't always make one hundred percent of their customers happy one hundred percent of the time, and don't risk the huge expense and potential negative publicity that comes with suing one of their customers."

Accusing a business owner of unethical conduct would constitute defamation unless it is true, said Aaron Morris, an Internet defamation attorney in Santa Ana, Calif. However, if the defendant can successfully prove that posting the statement was a matter of public good then the plaintiff would have to show malice and that the defendant knew the statement was false or had reason to believe it was false, he added.

"You can have something that would normally constitute defamation but if it's a matter of public interest it is entitled to protected status," Morris said. "Some courts will say that if you are posting it in a forum where people would be interested, they are going to Yelp specifically to find out about the doctor...then it enjoys a heightened level of privilege."

Not much legal precedent has been set on Internet defamation involving consumer review Web sites. Two similar cases decided in August in California had conflicting outcomes. In European Spa v. Kerber, the First District Court of Appeal ruled that negative reviews of a spa posted on Yelp and Yahoo did not meet the public interest element to merit special status in a defamation lawsuit, Morris wrote in an entry on his blog. In a separate case, Kim v. IAC/InterActive Corp., the Second District Court of Appeal granted an anti-SLAPP (strategic lawsuit against public participation) motion filed by someone who had posted a negative review of a dentist on Citysearch.

"If enough of the cases come back where individual posters are being sued, that could chill the desire of people to go on and post their opinion," Morris said. "But all they have to do to protect themselves is to make sure there is some truth to what they are saying."

Updated 1:40 a.m. PST Jan. 7 with background on other cases.