The Worst Legal Advice Ever, Presented By A Clueless Blogger For An Insurance Company

from the ouch dept

Tue, Sep 30th 2014 12:07pm — Mike Masnick

The internet is chock full of bad legal advice, but it's a bit odd to see it posted on a site for a large insurance company. Insurance company The Hartford* apparently has a website full of "small business" advice. This, by itself, is not a bad idea. Providing good content that people want is something that many companies should be doing. But the key here is "good content." Which brings us to the following article that's been passed around a few times among lawyers on Twitter. Officially, it's an article describing "5 Easy Ways to Get Sued Over Online Content & Social Media" written by Deb McAlister-Holland. Here's the stunning thing about it: nearly every word in the thing is dead wrong. Honestly, there's so much that's flat out wrong that we wouldn't even have the time to go through it all, unless we did basically nothing else today. So we'll just pick a few of the more ridiculous low-lights. It starts off with an unsubstantiated claim that the CFAA is the cause of "much of the rise in litigation," but then jumps right into the fire with a discussion on copyright infringement that begins with this line that is, uh, just wrong:

There is no defense against copyright infringement. Either you created it or paid for it, or you can’t use it. It’s that simple.

Except there are many, many, many defenses against claims of infringement, from fair use to de minimis use to copyright invalidity to the statute of limitations has passed and more and more and more. A simple Google search might help. Either way, if you're unfamiliar with the concept of fair use, you shouldn't be writing about copyright.

No receipt, no written permission, no link to a Creative Commons license? You lose.

Except, that's not true. I mean, let's just look at just a few of the cases we've written about in just the past few months, where there was no receipt, no written permission and no link to a Creative Commons license -- and in all of those cases, the person or company using the content won. This is just bad legal advice.

The automatic “remedy” for the winner is triple damages: you pay three times the value of the material on which you infringed. Who sets the value? The guy who is suing you.

None of that is even close to accurate. There's an entire section of copyright law 17 USC 504 devoted to remedies for infringement that you'd think someone writing about this would have (perhaps) Googled first. First of all, there is no "automatic" remedy. The judge or the jury sets the damages within certain guidelines. Statutory damages tend to be the standard, rather than actual damages. The "value" of the material is considered almost entirely irrelevant in statutory damages (and frequently irrelevant in the rare "actual damages" cases). Treble damages are only awarded in cases of willful infringement, and is not based on "the guy who is suing you."

So, if you can, take advantage of the “ safe harbor ” provision of the Digital Millennium Copyright Act (DMCA) and remove the offending content as soon as you are notified of a possible copyright problem. Just removing the offending content may not prevent you from being sued or being required to pay damages, but it can reduce the amount of damages owed in a successful suit.

At least this time McAlister-Holland actually references something associated with copyright law (the DMCA), but does so almost entirely incorrectly. Since the original setup of the piece is about "content marketer" (what the hell is that?) and writers getting sued, the DMCA safe harbors almost certainly wouldn't apply in the first place, since they're about protecting service providers (intermediaries) from infringement done by end users (such as the writer). So, while it's correct to say that the service provider can be protected via the safe harbors by removing infringing content upon notification, almost everything else is wrong. Also, the whole point of the safe harbors is that it does, in fact, stop you from having to pay damages. That's why it's a safe harbor. It has nothing to do with reducing the amount of damages. The original writer, however, may be sued either way, but the safe harbors do nothing to with the damages for that individual. Either way, the entire paragraph is a confused jumble of wrong.

Next up, McAlister-Holland suggests that people writing reviews online, such as on Yelp, are potentially opening themselves up to tortious interference claims. While it's true that angry plaintiffs in online review cases will almost always toss in a "tortious interference" claim in any lawsuit, the idea that a typical review will be tortious interference is laughable. And yes, you could get sued for just about anything, but it doesn't mean the lawsuit is legitimate. From there, she discusses defamation in a manner that is... misleading, at best. Here's a note: when discussing the specifics of a law, don't use non-legal dictionary definitions. She even brings up criminal defamation as a possibility, despite it being exceptionally rare. Besides, it's a very odd article that highlights criminal defamation but never gets into the details of the high bar associated with defaming a public figure (she only mentions that the rules vary based on public or private individuals, never explaining how or why). Also, this:

One thing to remember here is that defamation is in the mind of the reader and the outcome. Intent may (or may not) matter.

I don't even. "Intent may (or may not) matter"? NYT v Sullivan establishes that there needs to be actual malice in posting false information about public figures. Intent very much matters, and the "mind of the reader and the outcome" matter almost not at all.

She then cites... a Canadian case to prove her point. She might want to research the (rather extreme) differences between US and Canadian defamation laws. I mean, she might as well pick on defamation laws from the UK or, hell, Saudi Arabia, if the intent is to warn you to avoid any global defamation.

The final section is on publicity rights, and again, gets an awful lot wrong:

The right of publicity is what can bite you if you’re one of those people who posts every photo you take on Facebook, with no regard to the preferences or feelings of other people in the photo, or when you use material that is strongly identified with a person. It’s why all those “tribute” bands are “tributes” instead of knock-offs: words matter, and how you present someone else’s intellectual property matters.

Now, publicity rights are state-based laws, and they vary greatly by state, but I'm hard-pressed to see how any of the situations listed above have anything at all to do with any publicity rights laws. Publicity rights laws tend to be about preventing the commercial exploitation of an individual's identity -- with the most standard example being using a famous person's likeness in an advertisement without their approval, suggesting an endorsement.

So get permission before you publish long excerpts from someone else’s blog (or, heaven forbid, pick up and reblog the whole thing as a “guest post” when they were never asked if they were willing to be a guest blogger on your site), and especially get permission before you publish photos of any identifiable person (that means someone who could be identified in a photo, whether you know who they are or not) without their permission.

So that first part has nothing to do with rights of publicity, but is a copyright issue (which you'd think she'd know given that she has a section on copyright in this very article). And while there might be some cases where you could argue that posting a photo of an identifiable person without permission might lead to a publicity rights case, it's a stretch. There's the Katerine Heigl situation, of course, but that involved a drug store tweeting a picture of her carrying a bag walking out of one of their stores (and, even then, it seemed like a huge stretch for publicity rights). Merely posting a picture of someone famous to your Facebook? Not a publicity rights issue.

There's then a paragraph that walks back what she says, suggesting it is okay to post photos of famous people if you don't suggest they endorse "you." Then there's this:

The people most likely to lose their jobs or get sued for a breach of the right to privacy are health care workers, cops, teachers, and anyone who works for any government agency.

Huh? I don't even know what that means. How are health care workers violating someone's publicity rights?

And, then suddenly, we're back into defamation. Or something:

Context is important, too. If you pick up a generic photo of a bell man or hotel desk clerk, the individual pictured could make a claim for defamation (if it might be construed by the reader that the pictured individual provided bad service because the blog post is about a bad hotel experience).

Anyway, after some legal folks on Twitter started discussing the article, with Ken "Popehat" White summing it up as: "STOP MAKING PEOPLE STUPIDER, ASSHOLES," McAlister-Holland claimed that the piece was "heavily edited" from something she wrote, and that The Hartford version "introduc[ed] many errors." She further claimed that it "does not represent my work." However, others like Asher Langton pointed out that the original version, since deleted from her own website was still available via Google cache and archive.org, showing the same questionable analysis of the law.

She also claims that the link is "unauthorized":

Except that The Hartford's site claims it licensed it via NewsCred, a marketplace that content providers such as bloggers can use to syndicate their work. Of course, if that's false (which seems unlikely), perhaps McAlister-Holland could have a legitimate claim of copyright infringement. Wouldn't that be ironic?

Anyway, there are lots and lots of problems with the article (even beyond the ones we discussed), but the real question here is why is a credible business like The Hartford reposting such crud? Not only is it woefully inaccurate, it only seems likely to encourage frivolous litigation based on repeating the bad legal theories in such a blog, now with the "credibility" of The Hartford behind it. That just seems like a bad content strategy all around.

*Disclaimer: Last year, The Hartford briefly sponsored a few of our posts, but had no editorial control over the content of the posts. And, we think those posts were significantly better than the crap discussed above.

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Filed Under: copyright, deb mcalister-holland, defamation, insurance, publicity rights, tortious interference
Companies: the hartford

44 Comments

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Reader Comments

The First Word

“

Legally wrong and factually inaccurate

In addition to the other flaws in the article that Mike has noted, the author shows that she has no idea what she is talking about when she acknowledges that “I didn’t like the food at Deb’s Diner, and won’t be going back” is a protected opinion but says that “If you live in Lake Highlands, don’t hire Peek’s Carpet and Tile to install a new floor for you” is actionable as tortious interference with business -- both are purely an expressions of opinion and not actionable.

Then we have this total piece of nonsense:

"Virginia homeowner Jane Perez became the reluctant poster child for what can happen when you post a review that a court finds to fall under the product disparagement rules. The contractor who didn’t like her one-star review on Yelp sued her for $750,000 – and was awarded damages of over $250,000. Appeals in the case continue, but the costly case has ruined the homeowner’s credit and created a precedent that has encouraged many more business owners to file suit when negative reviews are published."

Actually, the claim in the case was only for libel, not product disparagement; NO damages were awarded to the contractor; and the case is over (no appeals have been filed; the only appeal was our SUCCESSFUL appeal from the issuance of a preliminary injunction. http://pubcit.typepad.com/clpblog/2013/01/virginia-supreme-court-reverses-preliminary-injunction-aga inst-yelp-review.html Here is my report of the end of the case: http://pubcit.typepad.com/clpblog/2014/03/ruminations-about-dietz-v-perez.html
Nor has there been any report I have seen about homeowner's credit.

—Paul Alan Levy

”

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Vidiot (profile), 30 Sep 2014 @ 11:19am

Definition
"... the original setup of the piece is about "content marketer" (what the hell is that?)"

Another newspeak buzzword: broadly, using "content" to drive your marketing efforts. In practice, its proponents are talking almost exclusively about video, whether in blog-like settings, social media, out long-form outlets. Her intent might be to warn noobs off from using Disney "Cars" rips while promoting the local service station.

Doesn't make any of this less wrong.
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Anonymous Coward, 30 Sep 2014 @ 12:30pm

There is no defense against copyright infringement. Either you created it or paid for it, or you can’t use it. It’s that simple.

Has she never heard of the public domain, never mind the CC licenses?
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kenichi tanaka (profile), 30 Sep 2014 @ 12:38pm

There it is. Ken "Popehat" White just proved just how stupid uneducated people like himself are. "Stupider"? That's not even a word. It's "stupid" or "more stupid". Every English professor must be turning over in their graves for seeing such atrocious grammar being used by those who are supposed to be educated.

GOOD GRIEF!
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Anonymous Coward, 30 Sep 2014 @ 12:41pm

Re:
You're actually wrong.
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That Anonymous Coward (profile), 30 Sep 2014 @ 12:44pm

I enjoyed she tried taking a lawyer down with her.
Funny he didn't respond to my tweet asking about it, perhaps the avatar scared him.

She seems to be a new generation of SEO warrior.
It is more important to generate links to improve google hits, than to actually offer real content.

How sad for her, this story is moving up in her Google hits throwing off her carefully curated persona.
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DogBreath, 30 Sep 2014 @ 12:57pm

Worst sandwich (legal advice) I ever had...
And yes, you could get sued for just about anything, but it doesn't mean the lawsuit is legitimate.

I was hungry so I made a ham sandwich, based on legal advice from my attorney (blog), and got sued for copyright infringement. Then, the ham sandwich got indicted by the grand jury, and turned my civil case into a criminal one.

Check and Mate, and they Sunk my Battleship.
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OldMugwump (profile), 30 Sep 2014 @ 1:04pm

Re: "Stupider"?
Stupid. Stupider. Stupiderer. Stupidererer. Stupidest. Stupidister. Sutupidisterer.

Stupidity has no end. It just goes on and on. And on.

(Grammar Kommmies musht dye!)
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OldMugwump (profile), 30 Sep 2014 @ 1:06pm

Re:
Soon, Google will down rank you for saying stuff that's wrong and misleading.

I can't wait.
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OldMugwump (profile), 30 Sep 2014 @ 1:09pm

Re:
Oh, yeah, also:

http://dictionary.reference.com/browse/stupider

Now who's stupiderererest of them all?

English is what we make it.
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Anonymous Coward, 30 Sep 2014 @ 1:18pm

Saying, “Don’t eat at Deb’s Diner — the food will make you sick” or “If you live in Lake Highlands, don’t hire Peek’s Carpet and Tile to install a new floor for you” on the other hand is illegal.

Illegal? Really? Even if it's true? I don't think so.

You’d be surprised at how expensive and difficult it is to prove a “fact” in court.

Well, THAT much is true, but that's not the same as it being illegal. And the burden of proof is ordinarily on the plaintiff.
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Anonymous Coward, 30 Sep 2014 @ 1:19pm

Are we entirely sure that the 'author' isn't actually a content-generating algorithm like the one profiled last week?

Coherent English seems curiously just beyond reach, maybe it's practising on us.
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Anonymous Coward, 30 Sep 2014 @ 1:24pm

Re:
Better to remain silent and be thought a fool than to speak and to remove all doubt.
— ABRAHAM LINCOLN.
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Gwiz (profile), 30 Sep 2014 @ 1:38pm

Re:
There it is. Ken "Popehat" White just proved just how stupid uneducated people like himself are. "Stupider"? That's not even a word. It's "stupid" or "more stupid".

Methinks you just proved that you stupider than the average bear.

"Stupider" is a word. It's listed in a lot of the major dictionaries and Ken's usage was correct.

http://www.oxforddictionaries.com/us/definition/american_english/stupid
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Baron von Robber, 30 Sep 2014 @ 1:41pm

Re:
"Ken "Popehat" White just proved just how stupid uneducated people like himself are."

And when did you pass that bar?
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Oblate (profile), 30 Sep 2014 @ 1:47pm

Re:
> Every English professor must be turning over in their graves

Are you implying that all English professors are dead? I should read the news more often.
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Rich, 30 Sep 2014 @ 1:54pm

Re:
You think all English professors are dead?
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Anonymous Coward, 30 Sep 2014 @ 2:26pm

Re:
Are we entirely sure that the 'author' isn't actually a content-generating algorithm like the one profiled last week?

Good question! Wish I knew the answer.

Coherent English seems curiously just beyond reach, maybe it's practising on us.

Regret to inform you that this statement could apply to a number of humans, too.
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Anonymous Coward, 30 Sep 2014 @ 2:37pm

Re:
I think English professors are more smart than that.
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jackn, 30 Sep 2014 @ 2:40pm

Re:
Although it can be tricky, you should put you punctuation inside your quotes.

"Stupider?" (Actually, thats not a sentence)

and

'more stupid."

See how its done?

also, avoid exclamation points. English professors hate 'em.
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Anonymous Coward, 30 Sep 2014 @ 2:51pm

Re:
I scanned the first page of your comment history for errors and found a few, so your (hopefully not dead) English professors can cringe:

"sport's car" - incorrect punctuation
"Michael brown like he;s" - incorrect capitalization and punctuation
"Take Two is going to take a hit on this they cannot just..." - run-on sentence
"That they'll arrest every American who has body armor?" - incomplete sentence

Everyone makes mistakes, even though Popehat didn't in this scenario. Care to throw more grammatical stones?
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Get off my cyber-lawn! (profile), 30 Sep 2014 @ 4:03pm

Amazing sample of content created by Qentis Corporation
I think this is some of that algorithmically-generated content from Qentis!
[ link to this | view in thread ]
Zonker, 30 Sep 2014 @ 4:30pm

To be fair, the article was about "5 Easy Ways to Get Sued Over Online Content & Social Media", not "5 Easy Ways You May Be Breaking The Law Over Online Content & Social Media". These are the sorts of things people have been sued over since anyone can sue over anything, and these are precisely the sort of things the litigious seem to want to make illegal. That most or all of those lawsuits had no real legal foundation as pointed out here doesn't preclude a frivolous lawsuit from being filed.

I could have written a much shorter article titled "1 Easy Way to Not Get Sued Over Online Content & Social Media" summarized as "don't create any online content or participate in any social media" and technically be correct, though not really be helpful nor useful advice. As such, I do agree that the article on The Hartford was not helpful or useful advice, nor is it right about the actual law, and it deserves criticism in that regard.
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Anonymous Coward, 30 Sep 2014 @ 5:22pm

Re:
I do not think anyone is pointing out the title as being worthy of ridicule, or did I miss something?

I think the items being called out are things like this:
"There is no defense against copyright infringement. Either you created it or paid for it, or you can’t use it. It’s that simple."
[ link to this | view in thread ]
Anonymous Coward, 30 Sep 2014 @ 6:29pm

Re:
No one's going to take a jackass who can't even use the "reply to this" function seriously.
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Zonker, 30 Sep 2014 @ 6:49pm

Re: Re:
As I said: "I do agree that the article on The Hartford was not helpful or useful advice, nor is it right about the actual law, and it deserves criticism in that regard."

We are in agreement here. The point is that the Hartford article appears to have meant to discuss actions that can get you sued, not actions that are actually illegal. It failed rather spectacularly in most areas, especially the copyright section as you pointed out. Being sued for something is not the same as losing a lawsuit, but the Hartford article doesn't seem to get that these are different concepts.

I am not sure if the Hartford article was poorly written, badly edited, or intentionally misleading.
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Anonymous Coward, 30 Sep 2014 @ 7:17pm

Re: Re: Re:
All of the above, I'd guess.
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Paul Alan Levy (profile), 30 Sep 2014 @ 7:54pm

Legally wrong and factually inaccurate
In addition to the other flaws in the article that Mike has noted, the author shows that she has no idea what she is talking about when she acknowledges that “I didn’t like the food at Deb’s Diner, and won’t be going back” is a protected opinion but says that “If you live in Lake Highlands, don’t hire Peek’s Carpet and Tile to install a new floor for you” is actionable as tortious interference with business -- both are purely an expressions of opinion and not actionable.

Then we have this total piece of nonsense:

"Virginia homeowner Jane Perez became the reluctant poster child for what can happen when you post a review that a court finds to fall under the product disparagement rules. The contractor who didn’t like her one-star review on Yelp sued her for $750,000 – and was awarded damages of over $250,000. Appeals in the case continue, but the costly case has ruined the homeowner’s credit and created a precedent that has encouraged many more business owners to file suit when negative reviews are published."

Actually, the claim in the case was only for libel, not product disparagement; NO damages were awarded to the contractor; and the case is over (no appeals have been filed; the only appeal was our SUCCESSFUL appeal from the issuance of a preliminary injunction. http://pubcit.typepad.com/clpblog/2013/01/virginia-supreme-court-reverses-preliminary-injunction-aga inst-yelp-review.html Here is my report of the end of the case: http://pubcit.typepad.com/clpblog/2014/03/ruminations-about-dietz-v-perez.html
Nor has there been any report I have seen about homeowner's credit.
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BJC (profile), 30 Sep 2014 @ 9:26pm

Misleading in the Service of Insurance
It should not be surprising that insurance companies do not want to pay to defend their clients to the extent that they'd rather scare them off of doing anything than admit, "okay, your view of the law is probably right, and as long as you keep paying your premiums we have to pay a lawyer possibly to take it to a federal appellate court to defend it."
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orbitalinsertion (profile), 30 Sep 2014 @ 11:19pm

Hey, did you get permission to quote that shit?
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G Thompson (profile), 1 Oct 2014 @ 12:49am

Question: can I sue her for Intentional infliction of emotional distress?

Cause this moronic fool of a "marketing consultant and writer" just made my brain hurt and burn with the stupids!
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Sheogorath (profile), 1 Oct 2014 @ 4:32am

She needs to make up her mind
From the linked article: You can be sued for what you post on a site that can’t be sued for allowing it to be posted. But if you run your own site, you probably can be sued for what someone else posts (in comments, as a guest post, etc.) on your site.
So according to the above, either you can get sued for what someone else posts on your website or you can't. Which is it, Ms. McAlister-Holland?
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Techanon, 1 Oct 2014 @ 5:01am

Re: Worst sandwich (legal advice) I ever had...
What's funny about your comment is that your ham sandwich can really be sued (though it's more common to sue money than sandwiches).
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Just Another Anonymous Troll, 1 Oct 2014 @ 5:17am

Re:
Poor Kenichi can't actually troll at any of the facts, so he has to latch on to one word, said by one guy who isn't part of the article, which may or may not be grammatically correct.
Also, if he can correctly talk about law and have such a following on Twitter, I'm pretty sure he's "educated".
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Ken, 1 Oct 2014 @ 8:21am

This discussion is imposing upon me a greater degree of stupid than that which I previously possessed.
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DogBreath, 1 Oct 2014 @ 10:21am

Re: Re: Worst sandwich (legal advice) I ever had...
I really don't worry about my ham sandwich being sued anymore. These days, it's more likely when being pulled over by the police, to have your money seized (21st century legalized "highway robbery") because it could be proceeds of illegal activity and you'll have to sue to get said money back. All predicated on property doesn't have any rights, therefore confiscation on baseless or manufactured suspicion alone (as "only existing in the officers mind") is legal.

I do hope however the next cop that pulls me over isn't hungry for a ham sandwich, or I'm afraid that is the last time I'll ever see it. It's the primary reason I stopped carrying donuts in the car.

Yes, I live every day with the age old fear of confiscation and consumption, predicated on donuts are property, so even donuts don't have any rights... except the right to remain delicious.
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aldestrawk (profile), 1 Oct 2014 @ 12:35pm

Out of curiosity I glanced through her blog and this article on the 1st amendment.
http://debmcalister.com/2011/06/03/7-things-you-cant-claim-first-amendment-rights-to-say/
W hat caught my attention was this statement concerning free speech:
"...Hustler paid damages to a preacher over a parody labelled as such in the magazine."
This is about the famous Hustler Magazine Inc. v. Falwell case which was an important Supreme Court case dealing with free speech. The important fact she glossed over is that while Hustler (Larry Flynt) lost in the lower courts, the Supreme Court reversed that decision, finding the parody involved to be legal. She even provided a link which discussed the whole history of the case. It seems she didn't read the last part dealing with the Supreme Court and that is indicative of her writing as a whole.
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John Fenderson (profile), 1 Oct 2014 @ 1:43pm

Re:
Pretty much everything on that list is an extreme distortion or outright misrepresentation of the truth.
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nasch (profile), 1 Oct 2014 @ 3:38pm

Re:
And the burden of proof is ordinarily on the plaintiff.

Sort of. If the plaintiff makes some sort of case and the defendant does nothing, I think the judgment would be that the preponderance of the evidence is in favor of the plaintiff.
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Anonymous Coward, 2 Oct 2014 @ 1:51am

Re: Re: Re: Worst sandwich (legal advice) I ever had...
The phrase "indict a ham sandwich" has been deprecated.
Current standard uses "turkey sandwich."

This transition was implemented quite a while ago, when people started calling cops "pigs."
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Anonymous Coward, 2 Oct 2014 @ 2:28am

I hope TD doesn't get sued: this article is both defamacious and libelizing.
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Bill Poser (profile), 2 Oct 2014 @ 10:51am

"stupider"
Actually, "stupider" is perfectly acceptable. Many fluent and highly educated speakers of English use it. I myself am a native speaker of English with a Ph.D. in Linguistics and I strongly prefer "stupider" to "more stupid". Virtually all speakers of English accept -er comparatives of monosyllabic adjectives and reject them for most adjectives of more than two syllables. There is considerable variation with regard to disyllabic adjectives like "stupid".
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John Fenderson (profile), 2 Oct 2014 @ 10:59am

Re:
As plenty of others have pointed out, "stupider" is a perfectly legitimate word. I personally dislike it, but using it isn't incorrect (and the usage here was clearly intended to be humorous anyway).

But I think this confusion comes about from the tendency of English courses to teach stylistic preferences as if they were language rules. I remember my grade school English teachers discouraging "stupider", leading the kids to believe that it was incorrect English rather than just something the teacher didn't like.
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Tony (profile), 2 Oct 2014 @ 11:24am

Article
The article is now gone. Not too surprising.
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Anonymous Coward, 3 Oct 2014 @ 1:01am

Re: Re:
When the bouncer refused him entry.
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