Social Media Marketing Do’s and Don’ts and Managing Your Online Reputation. Presented to The Rainmaker Institute.

1. Social Media Marketing
Do’s and Don’ts and
Managing Your Online
Reputation
Bennet Kelley, Internet Law Center

2. WHAT IS
AN
INTERNET
LAWYER?
RUT-
ROH
MONTY PYTHON and the HOLY GRAIL
Keeper of the Bridge of Death

3. BENNET KELLEY
Founder of the INTERNET LAW CENTER in Santa Monica
Host of CYBER LAW AND BUSINESS REPORT
Prior Positions with Howrey, ETM Entertainment Network, SpeedyClick.com and
ValueClick
Honors:
 Named One of Most Influential Lawyers in Digital Media and
E-Commerce by Los Angeles Business Journal (2014)
 Past Co-Chair of the California Bar Cyberspace Committee
 Chair Technology, Internet and Privacy Interest Group of California Bar
Intellectual Property Section
 Selected By US Dep’t of Commerce to Present on
U.S. E-Commerce Law as part of 2012 U.S.-China Legal Exchange
Website: InternetLawCenter.net
Blog: ILCCyberReport.wordpress.com
Tw: @InternetLawCent
3

4. CYBER LAW & BUSINESS REPORT
• 6th Season
• Wed. 11/23: Thanksgiving Edition
(Show #239)
• Nominated for LA Press Club Award
for Best Public Affairs Talk Radio
Show in 2014
• Follow Us on Twitter @CyberLawRadio

5. SOCIAL COMMERCE MATTERS
5

6. 6
THE BENEFITS OF SOCIAL COMMERCE

7. SOCIAL COMMERCE 101
69%
Consumers who search for reviews
before making purchase
(Source)
88%
Consumers who find online
reviews to be trustworthy
(Source)
7

8. #1 Friends and Family
81%
#2 Online Reviews
76%
#10 Advertising
47%
8
MOST TRUSTED PURCHASE INFORMATION SOURCES – JULY 2015 (SOURCE)

9. LOCAL BUSINESSES FOR WHICH REPUTATION
MATTERS MOST IN SELECTION (SOURCE)
9
47% 47% 31% 25%29%
Restaurant Doctor/Dentist Hotel/B&B Tradesmen Auto Dealer/Repair

10. ADDRESSING BAD REVIEWS

11. BE PROACTIVE -
WHAT YOU DON’T KNOW CAN HURT YOU
• Set Up an Alerts
• For Yourself
• Your Firm
• Clients
• Services
• Google Alerts*
• Social Searcher*
• Social Mention*
• Talkwalker*
• Mention
• Cyber Alert
*Free

12. REVIEW DON’TS: NO FAKE REVIEWS
• New York Attorney General –
2013 “Operation Clean Turf”
resulted in fines for 19
companies.
• “By producing fake reviews, these
companies violated multiple state
laws against false advertising and
engaged in illegal and deceptive
business practices.”
• Amazon has sued both companies
selling reviews and sellers
generating fake reviews for their
products.
12

13. REVIEW DON’TS: DON’T INCENTIVIZE
• AmeriFreight – gave discount for giving review and prize for
best review of month, while bragging it had “more highly
ranked ratings and reviews than any other company in the
Auto Transport Business.” Resulted in FTC Consent Decree.
• FTC explained result as follows:
Here’s how the Endorsement Guides put it: “When there exists
a connection between the endorser and the seller of the
advertised product that might materially affect the weight or
credibility of the endorsement (i.e., the connection is not
reasonably expected by the audience), such connection must
be fully disclosed.”
Why? In AmeriFreight’s case, for example, prospective
consumers of AmeriFreight’s services undoubtedly would view
AmeriFreight’s reviews more critically if they knew that
AmeriFreight gave consumers $50, and the chance to win
$100, to write them.
13
Go ahead, make my day.
FTC Chairwoman Edith Ramirez

14. MAY 2O16: FTC APPROVES
LORD & TAYLOR CONSENT DECREE
• Despite the company’s punctilious
approach to hashtags, handles, and
the like, Lord & Taylor was curiously
silent about other key aspects of the
campaign.
• Didn’t require the influencers to
disclose that Lord & Taylor had paid
them.
• No disclosure that the influencer
had received the dress for free, that
she had been compensated for the
post, or that the post was a part of a
Lord & Taylor ad campaign.

15. REVIEW DON’TS: DON’T PENALIZE
• Palmer v Kleargear (D. Utah 2014)
Improper attempt to enforce non-disparagement
clause (established after transaction at issue)
becomes cause célèbre, resulting in judgment of
$354K for consumer.
• California Passes Anti-Kleargear Law (Civil Code
Section 1670.8(a)(1))
• A contract for the sale or lease of consumer
goods or services may not include a provision
waiving the consumer’s right to make any
statement regarding the seller or lessor or its
employees or agents, or concerning the
goods or services.
• Federal Consumer Review Freedom Act (S.
2044) has passed Senate.

16. aka: MCWHORTER V DUCHOUQUETTE
No. DC-16-03561
(Tex. Dist. Court)

17. TEXAS CONSUMERS GIVE
PRESTIGIOUS PETS
ONE-STAR YELP REVIEW
OVER TREATMENT OF
FISH
PRESTIGIOUS PETS FILES
BREACH OF NON-
DISPARAGEMENT, BUT THEN
RE-FILES FOR $1MM
DEFAMATION CLAIM AFTER
PRESS REACTION
YELP TAGS BUSINESS WITH
CONSUMER ALERT PUBLIC CITIZEN WINS
DIMSMISSAL
PRESITIGOIUS PETS ORDERED
TO PAY COURT COSTS
AND SANCTIONS
17

18. DO REVIEW SITES HAVE LIABILITY?

19. “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“.
Section 230, Communications Decency Act

20. FIVE-STAR LITIGATION*
20
• Unfair Business Practices
Court rejected claim that Yelp practices were extortion since that requires that
litigant have “a pre-existing right to be free from the threatened harm, or that
the defendant had no right to seek payment for the service offered.” Yelp’s
actions were not a “wrongful use of economic fear”. Boris Y. Levitt, et al. v.
Yelp Inc. (9th Cir. 2014)
• Section 230 Immunity Challenge
Fact that Yelp created star rating based on reviews, did not “transform an
interactive computer service into a developer of the underlying misinformation”
for purposes of Section 230 of the CDA. Kimzey v. Yelp Inc. (W.D. Wash. 2014).
• False Advertising
Cal. Court of Appeal judge reversed a SLAPP dismissal of a False Advertising
action based on Yelp’s claims that each review “passed through a ‘filter’ that
gave consumers the most trusted reviews.” Demetriades v Yelp! (Cal. App.
2014).
• FTC Investigation
Closed without comment.

21. COMING ATTRACTION . . .
• “Billion Dollar Bully” – documentary expose on Yelp*
in post-production. Stock plunged 5% when first
trailer posted on Kickstarter.
• Motley Fool - Could Billion Dollar Bully be the next
Blackfish?

22. RIPOFF REPORT:
TESTING THE LIMITS OF SECTION 230
• Iowa Prosecutor accused Ripoff Report of “reputation
racketeering”.
• Some courts have denied Sec. 230 immunity:
• Found “substantial evidence suggesting that the plaintiffs
materially contributed to the alleged illegality of the
information at issue,” where contractor wrote negative
posts. Xcentric Ventures, LLC v. Smith (W.D. Iowa 2015).
• Found Xcentric was not a neutral publisher since it had an
interest in, and encouraged, negative content. Court
concluded “it is reasonable to infer that the very raison
d’etre for the website was to commercialize on its ability
to sell its program to counter the offensive content the
Ripoff Report encouraged. Vision Security, LLC v. Xcentric
Ventures, LLC (D. Utah 2015).
• Ripoff Report terms irrevocably assigned copyright in
complaint to them, defeating subsequent assignment by
poster. Small Justice LLC v. Xcentric Ventures, LLC (D.
Mass. 2015)
22

23. 9TH CIRCUIT:
IMMUNITY DOES NOT COVER FAILURE TO WARN
Jane Doe’s failure to warn claim
has nothing to do with Internet
Brands’ efforts, or lack thereof, to
edit, monitor, or remove user
generated content. Plaintiff’s
theory is that Internet Brands
should be held liable, based on its
knowledge of the rape scheme and
its “special relationship” with users
like Jane Doe, for failing to
generate its own warning.
Doe #14 v. Internet Brands, No. 12-56638
(9th Cir. May 31, 2016).
23

24. CAL CT. APP:
TAKE DOWN ORDER TO NON-PARTY YELP PERMITTED
• Hassel Law Group – won default
judgment against former client that
included order to Yelp to remove
offending posts.
• Court: An injunction can properly run
to classes of persons with or through
whom the enjoined party may act.
• Does not implicate Section 230 since
it would not impose liability on Yelp as
a publisher or distributor of third party
content.

25. RESPONDING TO NEGATIVE REVIEWS
25

26. A WARNING FOR LAWYERS
• LA County Bar Ass’n: “[A]ttorney may respond to former client’s
internet posting, so long as 1) attorney’s response does not disclose
confidential information, 2) attorney does not respond in a manner
that will injure former client in a matter involving the former
representation, and 3) attorney’s response is proportionate and
restrained.”
• SF Bar Ass’n: “Attorney is not barred from responding generally to an
online review by a former client where the former client's matter has
concluded. Although the residual duty of loyalty owed to the former
client does not prohibit a response, Attorney's on-going duty of
confidentiality prohibits Attorney from disclosing any
confidential information about the prior representation absent the
former client's informed consent or a waiver of confidentiality.”
• American Bar Association and New York Bar Association have taken
similar position.
26

27. THE WISDOM OF THE MASSES
• Rule #1: Be Aware of Your
Reviews
• Own Your Negative Reviews
• Wisdom of the Masses
• Increase Overall Reviews
• Initiate contact prior to
posting reviews (Anonymous
Venting)
• Direct Users to Review Sites
You Approve
27

28. You’ll
never
guess
which
house is
mine?
THE STREISAND EFFECT

29. “There is no telling how
many people have
downloaded the photograph
. . . numbers could easily be
in the thousands”
• Pre-Complaint Downloads – 6 (4 by her lawyer)
• 1 Million Hits to Website 1st Month After Lawsuit

30. ANTI-SLAPP MOTION
CAL CCP SECTION 425.16
a) . . . The Legislature finds and declares that it is
in the public interest to encourage continued
participation in matters of public significance,
and that this participation should not be chilled
through abuse of the judicial process.
(b) (1) A cause of action against a person arising
from any act of that person in furtherance of the
person's right of petition or free speech under
the United States Constitution or the California
Constitution in connection with a public issue
shall be subject to a special motion to strike,
unless the court determines that the plaintiff has
established that there is a probability that the
plaintiff will prevail on the claim.

31. 31
UC DAVIS COROLLARY

32. NEGATIVE CONTENT CHECKLIST
Can you identify/contact the poster?
 Consider whether reaching out is an option
Does the post violate website terms?
 Contact the website or flag the content
Is it defamatory?
Is it material (Streisand Effect)?
Can more content/SEO bury it
 Bury Them In Kindness Content
 Social Media
 Blog Posts
 Increased Reviews
 Other Content

33. AN INTERNET BURIAL

34. BE CAREFUL 25 Percent of Online Stalkers Move to
Offline Activity
Report Credible Threats to Law
Enforcement
Local Police
Ic3.gov
Obtain Civil Restraining Order

35. NAPTIME IS OVER
THANK YOU
FOR
PARTICIPATING
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36. THANK YOU!
Website: InternetLawCenter.net
Blog: ILCCyberReport.wordpress.com
Tw: @InternetLawCent
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37. PRESENTATION ON SLIDESHARE.NET