How to post a review? What’s copyright infringement? Can you get sued? How can you defend yourself?

We invited the First Amendment lawyer, Marc Randazza, for a video interview and asked him to explain the most important legal aspects that every online user should know before posting a review.

A few words about our legal expert: Marc Randazza is the managing partner of Randazza Legal Group, a First Amendment and intellectual property attorney, and a CNN commentator on legal matters. He has years of experience in defending the freedom of speech and has solved multiple cases related to Internet usage. 

Watch this video interview to understand how online reviews work, how Section 230 defends your right to free speech, and more which comes up with great examples of Google and Twitter.

To help you dig into the details, we’ve compiled this short guide to top tips from our expert lawyer. Scroll down to uncover valuable legal advice:

Content

1. Introducing the Attorney in the First Amendment and Intellectual Property

Michael Podolsky: Guys, I am super-duper excited. I am presenting to you, the bulldog that I will always take to the legal fight. This is a guy that has saved our asses multiple times. There used to be the time when he ran spreadsheets of the lawsuits against Pissed Consumer. And that's the guy that helped us solve all those legal troubles.

Mr. Marc Randazza, an attorney in intellectual property, primarily operating from Nevada, Florida, and Massachusetts, if I'm not mistaken. I'll let Marc speak about his firm, what he's up to, and then we'll go to the details.

Marc  Randazza: Well, as you said, we operate all across the country, primarily doing First Amendment law, which dovetails in nicely with Section 230. And those two things, the First Amendment plus Section 230, are really the lifeblood for PissedConsumer. 

PissedConsumer, as a consumer review website, cannot survive without First Amendment protection and 230 protection. Because as you said, yes, we used to have spreadsheets of all the lawsuits being filed against you. Because anybody who did not like the reviews about them would say that they were defamatory.

Now, when they brought that claim, the question would be well, is this our problem? Or are we merely providing a platform and a voice for people to voice their concerns? And if you have a lot of reviews, you're always going to have some bad reviews, no matter how good of a company you are. You can't make everybody happy, all the time.

2. What You Should Know When Posting a Review

Michael: What shall a regular Joe Smith know when posting online? Be that on Pissed Consumer, on Yelp, on Amazon, anywhere they go, they post their thinking. What should the poster know from a legal perspective?

Marc: Well, when you post, you should know that you remain responsible for your content. So if you go on to PissedConsumer and you weren't really a customer of a company, but you have a problem with them because the owner of the company stole your girlfriend, or whatever reason you have a problem with it, you will remain liable for that.

Also, you might think that you're hiding your identity using a VPN or a proxy, and that might work. But ultimately, if that company does want to sue you, they can do that. They just can't sue Pissed Consumer, because of Section 230. Now, when you are posting, also, there are multiple ways that companies that like to suppress negative information will use.

Can You Use The Company Name?

Marc: One of them that I have seen in the past is a trademark, because the trademark is both outside Section 230, it doesn't have DMCA protection, which I'll talk about in a minute. So they'll say that "Well, using our name in the review is a trademark infringement." That's not true, because otherwise, how are you going to say that you don't like a certain business without using their name?

We had a case involving just this issue where a company, called Abbey Dental, sued Pissed Consumer. And they said that it was trademark infringement to use their name in a review. That case did not end in Abbey Dental's favor.

Now, copyright is another issue that I've seen where, for example, I've seen PissedConsumer have thumbnail images from the original company's website. That's perfectly permissible. But copyright is also something that people will try to use, to try to shut down your reviews. Defamation, that's the important one. 

When you're writing a review, make sure that you're not making false statements of fact.

Why Be Specific in a Review?

Marc: Now, you can make an opinion. You can say, "This car dealership is the worst car dealer in the world." A long time ago, I represented somebody who had a dispute with a car dealer, where they wrote that this car dealership sucks. That's it. Now, I don't know what sucks means. To me, sucks could mean one thing to one person and the next person could say, "It was the greatest dealership ever." Either one is a loose hyperbolic language.

So if you want to say sucks, you can say sucks. But that's not always the most helpful, either. Tell me why it sucks. What does it suck for? They suck because their prices are too high, are their sales people rude? Was someone rude to you at a certain date and time?

The more specific you get, the more useful your review is. But also, if you want to be that specific, you got to be more truthful.

Can the Company Sue You For a Review?

Marc: And then Section 230, again, is not for you as the reviewer. So if you're watching this, before you post a review, understand that Section 230 is what will get in the way of that company suing Pissed Consumer. But ultimately, they might get to you if you have, in some way, defamed them. Now, that doesn't mean you should be terrified of leaving a negative review.

For example, Pissed Consumer is incorporated in Nevada, and its Terms of Service say that any cause of action should be brought in Nevada.

So let's say you do leave a negative review for somebody, and the company tries to sue you in another state, you may be able to consult with your own attorney, and have them evaluate whether or not it should have been brought in Nevada. If it is brought outside of Nevada, you still might be able to take advantage of the Nevada anti-SLAPP statute.

Anti-SLAPP statutes are statutes that provide that if you get sued for using your First Amendment Rights, that lawsuit should stop very quickly. And the plaintiff is going to have to be able to prove that they have a viable lawsuit against you.

So if you say, "I rented from this company, and my apartment was full of roaches. And the landlord came into my house at midnight, naked, with a bucket of chicken. You should never want to live here." And that's true and they sue you for it because they want that suppressed from the internet. You may be able to stop that lawsuit and get your attorney's fees from the bad guy.

Again, I'm not your lawyer. I'm Pissed Consumer's lawyer, but I'm not going to give the posters advice. But you should, at least,

...if you wind up getting a demand letter or you think you're in some kind of legal trouble, you should tell your attorney to take a look at Pissed Consumer's Terms of Service, and consider whether the Nevada anti-SLAPP law will protect you.

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3. Can You Get a Review Removed?

Michael: I don't mind, as the owner of Pissed Consumer, if there are reasons to take down content, there are reasons for it, and we will take it down. But when there is no reason and people are just coming left and right, saying, "This has to be taken down, just because I don't like it."

That consumes time and removes us from other important things that we are doing for consumers. So there are going to be monetary damages awarded back to the consumer review sites, that actually defend consumers' conduct.

Marc: Right. The thing I've often found is that when I look at a future, say without Section 230, but with other possible protections, it seems to me that companies... I've seen PissedConsumer behave responsibly with this stuff. One of my first Section 230 clients was a cheaters site. It was a site that you would report somebody if they cheated on you or somebody you knew.

And a woman called me, because she was on the site improperly, at least according to her. And she was in a child custody battle, where it was really hurting her child custody chances.

The woman called me and I said, "Look, I will represent you, but you have to let me do it my way. And my way includes writing to the site, and making sure that they are fully aware that you know, you don't have any claim against them. But showing them the damage that it's causing and showing them, at least to the best of your ability, the proof that it's not true.”

And I sent that. This was so long ago, I faxed the letter. But I faxed the letter over to that site. And within 10 minutes, I got a phone call from the owner of the site saying, "You're the first person, the first lawyer who has sent me a legal demand that simply said, 'Do the right thing here' not 'Do what we want, or we'll sue you.'" He said, "I'm impressed with your knowledge of Section 230." And he said, "So I've taken it down. And now, you're my new lawyer, if you don't mind."

There are companies that will behave responsibly when they're asked to. Unfortunately, not everybody will, and that's why we can't have nice things. And I think some of the bigger players are the ones that act the most irresponsibly. I mean, I think that Google's arrogance, or Facebook's or Twitter's, when it deals with issues like this, are part of why you have a political groundswell against them.

There really doesn't seem to be anybody at Twitter or Google, who's in the 'Do the right thing' department.

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4. What You Should Know About Copyright and Trademark Infringements in a Review

Copyright Infringement

Michael: What shall an online poster know about copyright infringement? Is the poster of the review on Pissed Consumer, liable for posting a picture that they do not own the copyright to?

Marc: Chances are very, very low that anything you'd put in a consumer review, would draw a proper copyright infringement suit. Now, that doesn't mean they won't sue you, but there's something called fair use.

Section 107 of the Copyright Act provides that you can use copyrighted materials for criticism and commentary. So if you did a screenshot of somebody's website, and put it on your review and said, "Hey, look at this terrible stuff on this website," they could file a copyright infringement claim against you.

Now, unfortunately, fair use, I think, has been poorly interpreted. Absolutely, it says in the law that it is not copyright infringement, so it should be dismissed early on. But some law professor wrote a paper about fair use, where he said, "Fair use gives you the right to hire a lawyer."

Unfortunately, I get fair use inquiries probably once a week, but I don't work for free. So when somebody calls me and I say, "Okay, I'll defend you, but I'm going to need $20,000 in my trust account." They say, "Well, I can't afford that. Can't you get it from the other party?" Sure. I could, if we win, but then it's up to the court's discretion.

Now, if you wake up in the morning and the judge is in a bad mood that could mean that we don't get our fees. I mean, I defended a very, very clear fair use case, a number of years ago. And it took us about $150,000 worth of work to get there. And then we filed our request for attorney's fees, and the judge said, "No." And we said, "Well, do you have any rationale for why not?" "I don't feel like giving them to you." That's it.

I mean, that's what Article 3 of the Constitution says, is that judges don't have to do a good job, and judges don't have to really explain why they did a bad job. I think it was completely improper, but an appeal would have been on an abuse of discretion standard, which is almost impossible to overturn. So we had to let it go.

Trademark Infringement

Michael: What about trademark infringement? The same story as the copyright, right? Fair use and you could use a trademark when posting online, the poster has the freedom to post the trademark of the company that they are talking about.

Marc: Yes. I mean, that's absolutely true. And in cases like that, if they want to abuse the Lanham Act, that's the trademark act, the good news is that it's a little easier to get attorney's fees in trademark cases. I mean, a copyright case, it's just a free for all. Throw a dart with a blindfold on, at a dartboard, and see what you hit.

Trademark cases, the standard is it has to be an exceptional case. So if it's objectively unreasonable, the court should grant your fees, and then there's at least a standard you can appeal against. I do think that a bogus trademark action is better, if you're a defendant, anyway.

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5. Why Do Review Websites Need Section 230?

Michael: There is a lot of noise right now, on the internet. And the first voice of the United States, our president is screaming to remove Section 230.

Marc: Section 230 is sort of an accidental statute. The reason it was created was because, in 1996, the Clinton administration wanted to ban pornography from the internet. And as we all know, that worked out rather well, didn't it?

But in that Communications Decency Act of 1996, there was a carve-out that companies with very expensive lobbyists, like America Online managed to put in there, saying, "Hey, don't make it our fault, if other people put porn on our servers. And if we remove it, we don't want to get sued by them."

So when the Communications Decency Act was thrown out, there were little pieces of it left that have formed Section 230. Now, unfortunately, Section 230 is of great power and great responsibility. Now, for some companies, I think, consumer review Section 230 protection is essential, because you can't have consumer reviews without Section 230.

Unfortunately, we've seen that Section 230 can also be used in other ways. Let's say, if this consumer went through all of its reviews, and decided it was going to remove any reviews by anybody who was Muslim. You can do that. Section 230 is so broadly interpreted. And I think that the courts have interpreted it so broadly, that I think it's almost reached an absurd level.

When anybody wants to sit down and say, "Maybe we ought to take a look at how we can trim one edge here, and maybe extend something here." We have such a divided political structure, that it's got to be one way or the other. So now, there are voices on one side screaming, "Repeal it." And voices on the other side, screaming, "Keep it."

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6. What Can Be Changed in Section 230?

Marc: Personally, my personal views are that I think that the DMCA provides a great model for what could have been. The DMCA, if somebody posts a copyrighted image on a review on Pissed Consumer, Pissed Consumer is protected from liability for that as well, unless they get notice. And if you get notice, and you look at it and you say, "Well, this is fair use. I'm not going to take it down." You can do that. But now, you're in the shoes of the poster.

Now, what would be great about that... I've suggested that Section 230 should have a notice and take-down provision, but with a built-in anti-SLAPP.

So if somebody posts an opinion, and you get sued and you get a take-down notice for it, you can say, "No, we're going to file an action against you, for abusing the CDA, and then get statutory damages against you."

That would really be, I think, a change to it that could make it more powerful for consumers, more powerful for consumer review websites, but it would take away the power of sites... I think we all know them. I'm not going to give them free advertising. That are out there that go and scrape negative content so that they can get... They really function as extortion sites.

I mean, I've seen some websites out there, they are mugshot sites and home wrecker sites, they're all kind of funny and they're constitutionally protected. They'll take your content down for a fee.

But then if you pay it, you'll notice that there are about 15 or 20 other sites that have scraped that content. So now, what you have to do is you have to pay not just Peter, but Paul, Mary, and Joe, and John, all the way down the line. 

And these companies are protected by Section 230. You can see how, if you wound up on one of those, you might become an evangelist saying, "Get rid of Section 230."

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7. Why Google, Twitter, and Facebook Need Section 230?

Marc: President, himself, has called for a repeal of Section 230. Not a tweak to it, but a repeal. And I think that's unfortunate because I think everybody, including companies like yours, should want a change to Section 230, but not its ultimate repeal.

Frankly, I think a large part of it is also because we don't have antitrust working anymore. A lot of the problems that people have with Section 230 are that, well, Google and Facebook and Twitter will hide behind it for political censorship. I think hiding behind it is probably a bad way to say it. They will use it as a shield for political censorship. They have every right to do that.

Case Against Twitter

Marc: I mean, I had a case against Twitter, where we were arguing a small exception to Section 230. And Twitter actually argued that they have every right to discriminate on the basis of race, religion, ethnicity, anything they want. And they said, "Of course, we would never do that."

But I actually have another case pending, where we believe that Twitter discriminated on the base of religion. I'm representing the Satanic Temple.

Somebody posted on Twitter that they should go burn down the Satanic Temple. Now, I could see people having an issue, thinking that they're afraid of Satanists. But these are actually very nice people, who wouldn't do anything to anybody.

When they reported it, whoever was working at Twitter that day saw the report, and decided that they would ban the Satanic Temple, instead of the person who threatened to burn it down. And Twitter's argument is, "We have every right to do that. If we don't like Satanism, we can discriminate against it."

You can see, when there are arguments made like that, that people might start to think Section 230 has grown tentacles much longer than it was supposed to. And that's unfortunate because we're going to wind up, I think, coming down to a position, where once you have a critical mass of people who found absurd interpretations of it like that, it saps the political will to fight for it.

Google Example

Michael: Let's say you wake up tomorrow, and someone calls you and offers you a job at antitrust, Department of Justice. What would be your recommendations to Google? Let's take Google.

Marc: Well, I mean, if they offer me that job, I don't know that I could live on the salary. But let's say that when they did a special dispensation, and I could go to Google, I think that you need to break apart the different business structures under Google. They control YouTube. They control Google AdSense. They control Google Advertising, as well as Search.

So when you have all that work together, you've really got a monopolistic power…

… if Google's executives decide who they want to be the next president, I am sure that is within their power to cause that to happen. Or at least within their power to put a heavy finger on the scale.

Now, I think when you have such dominance of a market sector, that they then use to dominate other market sectors, you've got an antitrust problem.

I would say, break Google up into seven or eight different companies, and then you'd have another situation. I remember when you could look at... You had Ask Jeeves, Alta Vista, Yahoo, Google. I mean, there were five or six different search engines, and you might use a different one for different reasons. And this was before you could pay to get your listings to move to the top.

Everybody knew that was inevitable. But now the way that it's happened, there are real efforts, I think, at Google, to suppress people if they're politically not aligned with their ranking file employees.

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8. What Will Come With Section 230 Changes?

Michael: When other changes to Section 230 would come into play, what is your... My feeling is both Democrats and Republicans want to get rid of Section 230, but they want to get rid of it for different reasons. And that's the only reason why it's still on the books. That's my opinion.

Marc: Yeah. One thing I think it really needs is that liability if you misused a notice and take-down. Under the DMCA, you've got 512(f). So if somebody sends a take-down that's improper, it's abusive, you can sue them. Now, 512(f) I think, really lacks very good teeth. I have brought successful 512(f) claims, but a lot of them, they're really difficult to get anything out of them. Judges don't like them. They don't provide for statutory damages. They only provide for discretionary attorney's fees.

I think if they came with absolute statutory damages and attorney's fees, and people really had to think twice, if you said, "Before I send this takedown notice, I've got to be ready to defend it in court. Because if it's not proper, I'm going to get hit with a slap back."

I think you'd have people being very, very reticent about putting improper reviews up. Unfortunately, you've got an internet scheme here that, things were much better when it cost money to get on the internet.

Michael: What's going to happen to user-generated platforms, if Section 230 is gone?

Marc: They're going to have to adapt. I don't think the sky will fall, the way some people think it will. There is no Section 230 in Europe, and user-generated content works just fine there. Even in the days before there was Section 230, a lot of platforms were not saddled with ruin and pillaging that they had to worry about, every day.

I think if it is a complete repeal of Section 230, it might be a bit chaotic. But I think some changes to it... But the problem is, nobody is willing. Everybody's just saying, "All or nothing, leave it alone.

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9. What’s the Other Side Of Section 230?

Marc: There's a very small group of people who have the position I have, which is, it needs to be changed. It does need to be updated. And we should think also, although I'm a free speech lawyer and I'd rather see more reviews than less, I definitely empathize with people who find themselves looking at a Section 230-protected site, that's just absolutely devastating them.

I mean, there are websites out there that are devoted to really extorting money out of people. They'll take it down for a fee. They are there just to harm people. 

And when somebody calls me and says, "What can I do about this?" And I say, "There's nothing you can do. Section 230. And yeah, I realize that you are finding yourself, in some way, really devastated by this, but that's just the legal regime that we've created."

So there is a human element to it, that even when I've defended Section 230 cases, I've sometimes told the other attorney, "Look, I feel for your client, but you don't have a claim here. So whether your client is morally right or not, they're legally wrong. And you're only going to make their life worse by pursuing this case." And every time that that's happened, they've come to regret not listening to me.

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10. Why You Need the Right to Free Speech?

Marc: I would like to simply tell anybody who thinks that they like free speech, but... To stop right there, because everything after the but, negates everything before it. And think about free speech from the perspective that, if you hear something that you hate, speech that you can't stand, I want your instinct to be to protect it.

Most of my free speech clients are saying things that I don't like, and I'm never happier. The more I hate my client's speech, the happier I am to defend it. Because if you don't defend speech on whatever grounds, you don't have principles, what you have is tactics.

Because that's what we need to have a real, robust First Amendment. And if we lose that, because one side or the other has managed to get 51% of the power, you have to remember that, if you let the leopard out of the cage, it's going to claw everybody's face, equally, not just your enemies.

Thank you for having me. I really appreciate it. It's good to see you, again.

Michael: Thank you very much.

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We hope this interview with Marc Randazza, our legal attorney and expert, was informative and useful for you. Marc is one of the most trustworthy and literate lawyers who know the law inside and out. 

We’re grateful for his expert opinion, recommendations, and time. So, next time you share your review and opinion online, we suggest you to follow Marc Randazza’s advice. 

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Legal disclaimers:

1. While every effort has been made to ensure the accuracy of this publication, it is not intended to provide any legal, medical, accounting, investment or any other professional advice as individual cases may vary and should be discussed with a corresponding expert and/or an attorney.

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