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Blogger sued for $20 million
by Leslie Richard runs a small organic clothing store called The Oko Box. She was contacted by a TV production company called Vision Media Television. They told her they wanted to make a TV documentary that included her business.
After some conversations and emails, Vision Media Television told her they would need $25,000 from her upfront to include her in the documentary. Sound fishy? Leslie thought so. She did some investigating and concluded that Vision Media Televsion was not exactly what they presented themselves to be. She wrote the story on her Oko Box Blog in Scam Taking Advantage of Green Businesses in February of this year. This post describes what they told her and prints some of the email she received from them.
Vision Media responded in July with a lawsuit. They objected to her use of the word "scam." Leslie again blogged the story: Vision Media Sues The Oko Box For $20 Million Dollars. She goes into specific detail about her research findings on the company, its officers, and its rating with the Better Business Bureau.
An Ashville, NC newspaper, Mountain Xpress, picked up the story and did a report on Vision Media Television, its claimed relationship with television—specifically PBS and CNN—and its reputation. The Mountain Xpress story is Local business owner sued for $20 million over blog post. The newspaper report quotes an official at CNN who says that CNN has no relationship with Vision Media Television and points to a disclaimer on the PBS Web site that specifically names Vision Media Television among companies and programs that it is not associated with. Mountain Xpress includes a link to the lawsuit at the end of its story.
The ABC affiliate in Leslie's area of North Carolina, WLOS, aired a report about the story. You can watch the video Local Blogger Sued.
Leslie researched her facts, provided public documentation from such places as the Better Business Bureau to back up her opinions about Vision Media Television. She still got sued. If they wanted her to keep quiet about their company's business practices, they failed. The story has gone out to the traditional media and the blogosphere. The horrifying part is that even if the lawsuit eventually fails, is dropped, or ends favorably for Leslie, she still has to go through stress, worry, legal expense, and all sorts of other complications because of this lawsuit.
I contacted Leslie. Here's what she said about the approach she's taken so far:
I answered the summons on Friday, mailing out a "Motion To Dismiss/Motion To Transfer" to the Southern district of Florida Court & VMT's Lawyer. I answered "Pro Se" with assistance (which means I am defending myself but someone helped me write the Motion in legal language.)
The "Motion" basically says that I have no vehicle, no financial means to travel to Florida, and also I have seizures (doctor signed and notarized) and am not able to travel in a car, plane or train, therefore the case needs to be transferred to Asheville, North Carolina where I could have a fair chance at defending myself OR dismissed entirely. I have not obtained legal assistance yet, because I would need someone to represent me pro bono, but I am very hopeful that something will come along. I am taking it step by step, so there have not been plans yet to counter sue, although it is not out of the realm of possibility. I will know more once I have a lawyer representing me.
The legal rights of bloggers are murky. What rights belong to Leslie and bloggers like her who express opinions and review products and businesses on the web? What does the First Amendment mean to bloggers and do bloggers need protection beyond the rights protected by the US Constitution?
Some bloggers have gone the route of registering their blog trademark and forming an LLC (Limited Liability Company) to protect their brand and their assets. Jumping through these two hoops does give you some legal defensive moves that may help with certain issues, but they are not a complete guarantee of safety or immunity.
Registering a trademark means that you have the right to a certain name. If anyone else tries to use it, you can prevent that. There are limits to what trademark does. You can register a trademark with a government entity (http://www.uspto.gov/web/trademarks/workflow/start.htm), which gives you the right to take legal proceedings for trademark infringement to prevent unauthorized use of that trademark. There is also a common law trademark that gives certain rights to someone who has been using a name for a certain period or is recognized by a certain name in a particular geographical area, even if the trademark is unregistered.
Trademarks only protect your right to a name of a service, product, or other items of commercial value. They offer no help if you are sued for expressing an opinion.
LLC, on the other hand, is a form of business. When a business is formed as an LLC, the owners have limited liability for the actions and debts of the company (or blog, or online business). It often used for partnerships, but is suitable for a single owner company. You file for status as an LLC with the secretary of state in your state. When you operate as an LLC, the only assets you stand to lose in the event of a problem are those belonging to the business.
You can use the services of a lawyer to set up legal protections like this, and get a much more in-depth description of exactly what you'd be getting for your time and money with either a registered tradmark or by establishing an LLC. There are also online companies that help with legal matters. Cool Mom Picks recently worked with the online company Legal Zoom and found them thorough and of good reputation.
Since the suit was filed against her, Leslie has added some disclaimers to her blog. By email, Leslie said,
Putting a disclaimer is super important for anyone blogging, especially if you ever criticize anyone's company, product, or even a politician. Even this may not be all you need to protect yourself though, but it's a good start. Once someone threatens to sue, another thing you can do is "retract" your statement, especially if it wasn't true, or if you found out later it wasn't true. In some cases this can make it so the plaintiff can not get any punitive damages (which in my case would be $15 million). I have added a statement retracting that VMT was entirely "imaginary" because I found out this wasn't true, as I had originally believed. I did not however retract any of my other statements, which were the story of what I experienced with them - but did note my personal definition of "scam" since this is mainly what they are suing me over.
Libel and slander are complex issues, as Leslie pointed out in her remarks about retracting her statement when she found out something was not true. Be careful not to knowingly make false statements about a person, company, or anything else. Bloggers are protected by the 1st Amendment, but there's not a lot of legal precedent for bloggers or online media yet.
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Comments
Shuddering
The legal wrangling south of the border seems to be out of control. I try very hard to keep names etc. out of my posts, but I think I'm going to have to be a bit more careful. Not entirely sure what the likelihood of a cross-border suit is.
Thanks for the info on LLC! I may have to talk to one of my co-workers about setting that up.
http://whymomdrinksrum.blogspot.com/
Conventional motherhood? You bet it includes rum!
No LLCs in Canada
There's no such thing as an LLC in Canada. We would need to form....um....ai. I'm not sure. Would Canadian bloggers need to incorporate their blogs? ie., I could form Five Blondes Ltd. ? I think that's the Canadian equivalent.
http://fiveblondes.com
True Dat
Just chatted with the lawyer & paralegal (sometimes working for a law firm is a good thing, lol) and there is only LLC in Ontario...equivelant would be LLP they think for the rest of the country.
We were talking about cross-border law suits as well and if they filed up here NO WAY would they get that much in damages....basically if you state "In My Opinion" and have supporting evidence to back up your opinion they wouldn't have much ground.
Still scary though. I'll have to watch the name calling on my posts. For instance "Whale Whore Paralegal" may be construed as slanderous. LOL.
http://whymomdrinksrum.blogspot.com/
Conventional motherhood? You bet it includes rum!
Thanks for clearing up the Canadian
equivalent
to the LLC in the US.
Virginia DeBolt
BlogHer Technology Contributing Editor
Web Teacher
First 50 Words
Thanks for raising such an important issue!
Disclaimers, LLC, and Very Careful Wording on our posts---all excellent advice. What a scary situation she's in-- thanks for sharing her story, and the warnings.
Susan
stonyriverfarm.blogspot.com
www.carersgroup.com
it's not about how much they can get in
damages
They can't possibly believe they're going to collect anything even if they win, and I honestly doubt they even think they're going to win. It's about harassing Leslie and intimidating people. The lawsuit is frivolous beyond reason, but it doesn't have to have grounds to be filed and to make Leslie's life hell.
They tried to intimidate
in other ways, too. Did you read item #8 in this post?
http://oko-organic-clothing.blogspot.com/2008/07/vision-media-sues-oko-b...
Virginia DeBolt
BlogHer Technology Contributing Editor
Web Teacher
First 50 Words
Amazing...
Wow. This was an amazing (and sad) story for me. Expressing her opinion on a website (and doing a "good deed" of warning others) leads to a multi-million dollar lawsuit?!? What's next?
Jacqueline Wilson http://jackiewilson.blogspot.com/ www.JacquelineWilson.info
MomGrind is owned by an S corporation
Which provides some protection. As a former attorney, I am as careful as it gets. Still, whether you have legally separated yourself from your blog or not, you should be careful.
"Be careful not to knowingly make false statements about a person, company, or anything else." - absolutely true, and I would add that you need to be careful about making any negative statements at all, even if you believe they are true.
If you have something negative to say, stick to reporting facts that can be easily proven, and allow the readers to draw their own conclusions.
Vered DeLeeuw
http://momgrind.com/
Can you explain S corporation
a bit for us?
Virginia DeBolt
BlogHer Technology Contributing Editor
Web Teacher
First 50 Words
S Corporation
An S Corporation is a small-business corporation, which elects to be taxed as a partnership or proprietorship for federal income tax purposes. It is its own legal entity and provides some protection for its shareholders from legal liability.
An S Corporation means that you have to file a separate tax return every year, and there's also a requirement of having regular meetings and maintaining company minutes.
I consulted my accountant prior to forming the corporation. I would advise anyone who considers this to do the same.
Vered DeLeeuw
http://momgrind.com/
Virginia - thank you so much for posting
about this
I will definitely be watching Leslie's site to see how things turn out.
Jenn Barnes
Blog: HR Wench
Twitter: hrwench
Incorporating
My husband and I incorporated before launching our site. It cost about $250 using forms we purchased, filled out and mailed in to NY State. It was easy and fairly quick.
Lee
www.mostemailednews.com
Great information!
Thanks for the information. I formed a LLC for protection and tax purposes.
I'll also be watching as this unfolds. It appears that bloggers are the new targets for all sorts goodness. Since the Web is offering newer and wider reaches of influence, many are scared that they will be exposed.
YieldingWealth.com
(I doubt this comment will
(I doubt this comment will go through, I always have problems with Firefox 3.
As I wrote in previously lost comment..)
This really isn't a First Amendment issue, though Leslie has my sympathy and I hope she does get a lawyer, soon. As for incorporating to protect ourselves, incorporation doesn't really help. Incorporation will protect our assets, but the corporation can still be sued and then we'll be out money trying to protect the "corp". Incorporating can cause a false sense of security.
Your note on honesty is the key. Honesty and differentiating between statement of fact and expression of opinion. Practicing commonsense over hyperbole can only help.
I don't want to downplay people's concerns, but I don't think we're at significant risk for being sued. There have been millions of webloggers writing trillions of weblog posts, many negative of companies or people. Look how few lawsuits there have been? We're more at risk getting hit by lightning than getting sued, yet we don't trail a copper wire behind us, "just in case".
If there is a fund raiser to help Leslie get a lawyer, do post a note. I'd like to see she gets legal help.
Hopefully...
a blogging attorney might step forward and provide legal guidance for her...
best wishes, Leslie!
nelle
&
llhaesa
Thanks for the support!
Thanks to everyone here at Blogher for your support! These discussions are really helpful to me and your passion for blogging, freedom of speech and unity is awesome! I will post updates on my blog about this, to keep everyone informed of the process (there are 8 days left from today that they must respond to my Motion that was filed.) We can all learn together :)
Please feel free to contact me.
Thanks again! xoxo!
Leslie @ The Oko box
www.oko-organic-clothing.blogspot.com
Thanks for joining in
to the discussion, Leslie. We will indeed be watching to see how this turns out for you. It matters to all of us.
Virginia DeBolt
BlogHer Technology Contributing Editor
Web Teacher
First 50 Words
LLC, S Corp, and Libel
Do any of these actually protect an individual's assets against a charge of libel? I don't think so...
And merely prefacing everything with "In my opinion..." doesn't quite cover your behind, either. But truth is an absolute defense.
---------------
Holly Jahangiri
http://jahangiri.us/blog
There are ways to word it...
The truth is always a sure way to protect, but sometimes (as in my case) we think we are writing the truth and it may turn out later to be questionable. I did truly believe VMT was "imaginary", until I called the courthouse and asked if the summons had been filed myself- and now assume they are real based on the lawsuit. I was told by a well versed litigation lawyer that wording & disclaimers are very important and can do quiet a bit of shielding. Wording it in ways that show it is your opinion instead of saying it as absolute truth. But still the line is blurred as to whether a blog has much power, there are even laws that say if you don't have a great a reputation then you can't be held libel. (Possibly meaning if you are not some high traffic blog you are not really a threat.)
As far as assets go, and what can shield you, I do not know how this works. Because I have no assets what-so-ever (not even a car) - no one has discussed this much with me. But whatever I learn I will share with ya'll !
I think these areas are so shady that it has to be taken of a case to case basis. But that's just my opinion ;)
Leslie @ The Oko box
www.oko-organic-clothing.blogspot.com
Doesn't sound like you meet the "reckless"
test, either.
You posted what you sincerely believed. That's not reckless. You retracted falsehoods once you learned they were false. I don't think this company has a leg to stand on, and they may have done more harm to their own reputation by letting this get so much publicity. I'd never even heard of them before now!
You're right, there are ways to word things. And making it clear that you are expressing an OPINION is one of those ways. I was just pointing out that prefacing a statement that's clearly meant to be believed as a statement of fact with the words, "In my opinion..." isn't necessarily sufficient. (And as you hinted, that largely depends on your own "reputation" - your credibility factor. If you're a well-known tech blogger who trashes a computer manufacturer, your "opinion" is much more likely to be taken as fact by readers than if you're a frustrated grandma who starts ranting about the brand of computer her grandkids gave her for Christmas.)
It must just take your breath away to be served with a suit for $20 million - wow. That's one to frame! :)
---------------
Holly Jahangiri
http://jahangiri.us/blog
she was wrong
this was not a scam.
so please stop saying it is...
it is a business that skims the edges to get clients. to sell, you don't have to be totally upfront about everything..she should have gotten legal advice before agreeing to anything or a contract.
i have spoken to these people before. VMT..
they say that you have to pay upfront for the fees after they do their pitch. you have to ask about the fees..otherwise they assume you will pay.
they call us all the time trying to get us to do it. we just say no..
sounds like Leslie did not listen to them.
every business has a 'catch' that communicates via internet or phone.
their site clearly states what they do.
(and I do not work for them)
stop playing victim and do research.
i honestly don't think they'll get a penny from her..but she needs to consider removing blogs like this. she's only making it worse to allow others to post more remarks on it. the lawsuit is not going to backfire on them..please..they've not got anything to lose here.
a lesson to everyone.
be careful of what you put on the internet that directly bad-mouths a person or business, read between the lines and don't be a sucker..
thinking that someone is going to invest in your local business and make it a national wonder is really silly. Like a one-in-a-million chance. She got stars in her eyes and then got mad when she realized she screwed up. hope she turns out ok..but she will have hopefully learned a lesson in internet etiquette and biz sense.
You kind of have to laugh don't you.....
Too funny.
"To sell, you don't have to be totally upfront about everything."
Sounds like someone I'd like to do business with :)
http://whymomdrinksrum.blogspot.com/
Conventional motherhood? You bet it includes rum!
I'm laughing
Well, in a lawsuit we were involved in, the judge seemed to think one does have to be totally upfront.
Come share a laugh!
http://mommalittle.com
A fact
to keep in mind is that no contract was signed.
Virginia DeBolt
BlogHer Technology Contributing Editor
Web Teacher
First 50 Words
paying for videos
I started a video blog recently, and I have been wondering why, when I approach people to ask if I can interview them for a video, they ask if it is going to cost them any money. Now I understand!
I am sure that if it goes to court, there will be lawyers who would love to represent Ms. Richard...hope it doesn't go that far though. Honestly, she should counter-sue for emotional and physical stress.
And in response to Just Saying,
"every business has a 'catch' that communicates via internet or phone." - my business doesn't have a catch! I approach entrepreneurs with cool products every day, and ask them if I can do a blog post or a video on them - helping to promote their product and spread the word via my web site. Oh I suppose there is a catch - I ask them for a review sample as I can't afford to buy everything I cover. The video offer from this company and the broadcast connections they said they had, was straight-up bogus.
ModernGearTV.com
Look good. Live well.
Being careful online
I'm not a lawyer, but Leslie you might want to be careful what you say online until this issue has been resolved in court. Any "argument" you make online in your defense is ammunition for your opponent. You don't want to continue giving them any information into your plans, your thoughts, concerns, or potential actions.
justsaying, you wrote, "to sell, you don't have to be totally upfront about everything", actually, yes, you do. In fact, in the United States there isn't a state attorney general that won't investigate sellers who are not "upfront" about everything.
That's why I really hope Leslie gets a lawyer, and soon, because offense makes a great legal defense, and the organization suing her is probably more vulnerable to legal action than she is. Oh my, yes, indeed.
Good advice
Thanks ShelleyP for your advice. Just to clarify what I've written up top - these are just litigation related issues people have brought up in discussion and I am just sharing some basics (you can find this stuff online pretty easy and on the EFF website or at your courthouse library), and nothing beyond what is public record on file already is being disclosed.
Leslie @ The Oko box
www.oko-organic-clothing.blogspot.com
Good, I just wanted to make
Good, I just wanted to make sure you're careful. I hope my
note didn't come across as patronizing -- I'm just concerned about your not having a lawyer. Yet.
You know, I read that lawsuit and though I'm not a lawyer, I have a feeling a lawyer could shred this company, and that filing. Especially that filing.
Must Read: Professor Kim's article
for more helpful information.
How to avoid a lawsuit: tips for bloggers
Thanks, Virginia!
kudos to you for starting this conversation!
Kim
BlogHer Contributing Editor|Professor Kim|
other criticism
One more comment and then I'll stop cluttering up your comment space Virginia.
I'm not sure if any of you saw this report on Vision Media Television. Interesting information, and I also thought it was a very effective writing.
Thanks for the link to legal tips.
Thanks for the link, Shelley
AND for the comments. They are definitely not clutter.
Virginia DeBolt
BlogHer Technology Contributing Editor
Web Teacher
First 50 Words
This Industry Is "Sue Happy"
I wrote about this at WiredPen. In my research, I learned that this "pay to play" video production industry -- which seems centered in Florida -- has been sued by Walter Cronkite and Michael Douglas. At least one of the celebrities was counter-sued by the production company. Both were settled out of court.
The hardsell marketing tactic is related to bait-and-switch. I don't understand how this company can continue to talk about "Public Television" (in all caps) and not have PBS all over them!
Do the math -- they said 400 clients in 2007 - that's $10+ million. It'll pay for a lot of telemarkting cold calls ...
And sister companies have been called "scams" in print.
The religious persecution of the ages has been done under what was claimed to be the command of God. I distrust those people who know so well what God wants them to do to their fellows, because it always coincides with their own desires.
-- Susan B Antho
Contact the EFF
If she hasnt already, she needs to contact the EFF who may have a pro bono lawyer take her case. This one sounds like it would be right up their alley.
http://www.eff.org/
Yours, Tracy Viselli (a.k.a. Myrna the Minx)
My Company
Reno Fabulous Media: www.renofabulousmedia.com
My Main Blog
Reno and Its Discontents: www.renodiscontent.com
I reached out to the EFF re: This issue
They'd like to be able to connect to discuss if they can help.
Drop me a line at minjung_AT_minjungkim.com and I'll pass the info along as well but at least folks at the EFF are now aware of this.
Minjungkim.com
EFF
The contact information at EFF that minjungkim found has been passed on to Leslie.
Virginia DeBolt
BlogHer Technology Contributing Editor
Web Teacher
First 50 Words
NYT picks up VMT story
here
ConsumerPop Marketing
PopConsumer (Politics, Current Events & Links)
Beyond Help (Music, TV & Pop Culture)
NYT Article...
Thanks for posting the NY Times article, I felt it reflected my experience and was really well written. That was the first time I had read any responses from Vision Media Television in an article. And I felt those responses were revealing, in ways even I had been uncertain about.
Leslie @ The Oko box
www.oko-organic-clothing.blogspot.com
Disclaimer
Virginia,
This is great information. I also read Kim's post. I've added a disclaimer to my blog at www.NurseBarb.com thanks to your timely advice.
I carry malpractice insurance, business insurance, and because I'm a licensed health care provider I have to be very careful about the health advice I provide on-line. The disclaimer will help me sleep better at night!
thanks again,
NurseBarb
It really makes you think
It really makes you think that could happen to somebody for just expressing them
selves. I think I will have to look into a LLC
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