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Fri 6 Aug, 2004 03:07 pm
Calif. lawyer sues Yahoo over message-board posts
Quote:LOS ANGELES, Aug 5 (Reuters) - A California lawyer who has waged an ongoing battle with Yahoo Inc. over personal attacks made against him on Yahoo message boards has filed a proposed class-action lawsuit against the company.
The suit, filed in Los Angeles Superior Court on Wednesday by associates of corporate attorney Stephen Galton, claims Yahoo has unfairly protected people who post negative messages on its bulletin boards and falsely advertised that it prevents such abusive messages.
"It wouldn't be prudent for us to comment on this pending lawsuit," Yahoo spokeswoman Mary Osako said in a statement.
Galton is a partner in the firm of Galton & Helm, which specializes in insurance law. He registered to use Yahoo message boards in early 2004 in order to respond to a negative late-2003 post about one of his clients, which he did not identify in the suit.
After Galton posted his response, under the screen name "stephengalton," he was subjected to name-calling by various other users of the message boards.
One user, a person using the screen name "mumioler" who had posted the original messages about Galton's client that started the dispute, wrote a series of new messages calling Galton a "shyster" and an "overly robust geezer that makes a living walking behind the elephant with a shovel."
Other users also took personal shots at Galton, and he filed suit in April of this year against them. At the same time, he sought their personal information via a subpoena from Yahoo. The company, the suit said, responded with incomplete or inaccurate information.
The suit proposes as a class any California resident who has been targeted by abusive messages on a Yahoo board, who tried to get such messages stopped or learn the identity of the message poster, and who had such requests denied within the last four years. It seeks restitution, a permanent injunction and other forms of relief.
Message Board Lawsuit: Frivolous or meritorious? Why?
Frivilous because if the guy couldn't take the heat he should have gotten out of the kitchen. Those message boards are tough! It's where extremeists from the right and the left go to spew their venom to anyone about everything.
The guy is just trying to make a buck and this is another example of why lawyers are considered the scum of the earth.
Meritorious. If a person is slandered, he should have the right to take the slanderer to court (even if the slandered person is a lawyer). As to doglover's statement that he shouldn't have entered the forum; what if the purported slander were made against someone who had not posted to the board?
Stephen Galton is a bit of a crybaby in my opinion.
And he can feel free to try to sue me for that.
Thing is, even if he gets as far as getting Yahoo to divulge identities I bet he will get no further.
The implications for this case have more to do with internet privacy than anything else.
If, say, George Bush demanded identities of members here who spoke negatively of him he would be told to go scratch until we are served with a subpoena.
It's the same with Yahoo, they are protecting the privacy of their users, and will only disclose it if their hand is forced.
If the inordinately sensitive Stephen Galton manages to get that far, he may still have no case insofar as slander is concerned.
Defamation?
flyboy804 wrote:Meritorious. If a person is slandered, he should have the right to take the slanderer to court (even if the slandered person is a lawyer). As to doglover's statement that he shouldn't have entered the forum; what if the purported slander were made against someone who had not posted to the board?
Of course, I haven't read the complaint. However, according to the article, the lawyer is not suing the persons who made the alleged personal attacks upon him. He is suing Yahoo! for "false advertising." He claims that Yahoo! advertised that it would protect him from "personal attacks" and then failed to do so. I wonder, under the circumstances, if it is possible for him to assert the essential elements of a cognizable claim.
Obviously the lawyer realizes that Yahoo has much deeper pockets than the purported slanderer; and this approach has a much more lucrative potential.
Frivolous ... and doomed: Here are the pertinent bits excerpted from the Yahoo'
Terms of Service[/b]
Quote:
17. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED
ON AN "AS IS" AND "AS AVAILABLE" BASIS. YAHOO EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT.
YAHOO! MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR
REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE,
OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF
THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY
PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR
OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS,
AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE
SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE
SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF
DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU
FROM YAHOO! OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY
NOT EXPRESSLY STATED IN THE TOS.
A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN
EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN
OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY
UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF
PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN
EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE.
IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF
YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE --
DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS,
DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
18. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YAHOO! SHALL NOT BE LIABLE
TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS
OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF YAHOO
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i)
THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT
OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA,
INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR
TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii)
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
[n](iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v)
ANY OTHER MATTER RELATING TO THE SERVICE ... [/b]
also found in the Yahoo TOS that timber linked
Quote:You agree to not use the Service to: upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
and
Quote:You acknowledge that Yahoo! may or may not pre-screen Content, but that Yahoo! and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, Yahoo! and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable.
I suspect, without having read the particular statement of claim, that this is where there is some potential for success in the type of case linked by Debra Law. Yahoo has suggested that certain types of postings will not be allowed, and certain types of postings may be refused or moved - suggesting some level of protection from that type of posting.
I can think of a couple of lawyers who love this sort of work. I also think that eventually some provider's going to get nailed in this area by some Cook County (my particular bugbear) jury. Not sure that it makes a lot of sense in the long run - but, that doesn't mean the lawyers aren't going to have some fun with it in the meantime.
Hmm false advertising? Shouldn't the claim be negligence (e. g. per their TOS they said they had the right to remove objectionable content, but didn't). In particular, if the plaintiff can prove that he complained and asked for the stuff to be removed, and then it wasn't, he might have a leg to stand on.
I don't think he has much of a fighting chance otherwise, and even then I think it's a stretch but, like Beth said, you never know with some jurisdictions. Supreme Bronx would potentially be another one where it would fly, but they're not always 100% predictable there and could very well tell the plaintiff to go scratch.
Verrry interesting, either way.
My thoughts are on the same lines as Jespah.
I do think it's a long shot, but I think it is possible that they could win. I highly doubt it though.
jespah wrote:Hmm false advertising? Shouldn't the claim be negligence (e. g. per their TOS they said they had the right to remove objectionable content, but didn't). In particular, if the plaintiff can prove that he complained and asked for the stuff to be removed, and then it wasn't, he might have a leg to stand on.
I haven't looked into it very deeply, but my impression was that the lawyer's beef was in not being given the offender's identities. The actual posts may have been removed.
Gee whiz, I say as a confused observer. What was he doing, fool, posting his own name as a screen name and then complaining if someone, er, libelled him, on a message board???? Other posters are as free as he should have considered himself to remain anonymous. Ah, perhaps I don't understand some aspect of this. Terms of Service aren't universally some sort of automatic guillotine on the hint of violation, are they, with failure to act immediately a virtual crime... Let us hope not.
Mulling, privacy of members seems the issue to me.
Yahoo!'s TOS plainly says they have the RIGHT but are under NO OBLIGATION to screen or remove material, and is quite explicit that the users participates in the service at the user's own and sole risk. Apart from that, in that instrument, Yahoo! explicity eschews any responsinility itself for any material posted to it, resting that responsiblity soley on the user. Unless those provisions are held to be separable or inapplicable, I see no way for the plaintiff ro prevail.
Apart from that, Yahoo! discussion boards have an "Ignore User" feature ... plonk somebody, and you never even see their posts ... your choice if you wanna be bothered or not. I dunno how big the crew hammerin' this guy is, or what might be their level of 'net savvy, but if the crew wished, they could establish a usenet newsgroup dedicated to their chicanery, and crosspost all over usenet, or on the web there are geocities groups and angelfire groups and delphiforums and topica groups and MSN groups and ICQ groups and IRC channels and on and on and on, or they could put up a blog and set about getting it heavilly crosslinked, or they could set up and cross-promote a huge emailing list, and, of course, there's the googlebomb ... if the lawyer's cyber-enemies are real netizens, or should they attract the attention and support of same, the lawyer might find his inconvenience and embarrassment has barely begun, and there really isn't much he can do about it beyond complain. The boy clearly has no idea what a real flame war is all about. I think he may be standing in a pool of gasoline asking for a match.
You may not see a way for this sort of thing to fly, timber, but that's where a creative lawyer in a wonky jurisdiction comes in.
I think we're just at the front end of this sort of action being developed. People sue for things I can't begin to imagine every day - and occasionally they get them through - the joy of the loophole finder.
I hear ya ehBeth ... sorta like the guy who's pickup line is "Ya wanna just cut the crap and and sleep with me?" ... lotsa slaps, but one payoff balances the effort.
People really are petty and if they have something to gain from it, many do try anything.
Try sitting in a court room when they are dealing with restraining orders only. No money changes hands at all. You should hear the nonsense I did. Each side has a completely different story. No violent act occured. I couldn't find a legitimate complaint at all. Neither could the judge. He tossed every single case. I was curious what he would do with this.
People, by the droves, were getting restraining orders over telephone calls. Don't these people know how to hang up a phone? My case was the singular one with any violent act at all in that entire courtroom, while I waited. The rest are people with something to prove with some grudge match that will go as far to waste court time with petty feuds.
Unbeliveable!!
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