Okay, my xoops2 site is up for 1 week and I already have someone threatening us with legal action if a particular post is not removed -- because it casts their organization in an unfavourable light. (you can read more details below)

WHAT I NEED TO KNOW IS...

(1) Will a simple disclaimer normally do the trick? If so, are there any disclaimers you would recommend (or have worked to ward-off the lawyers for your site)?

(2) If so, how to incorporat it into our site? (xoops2 has a built in disclaimer at registration, but it's not visible to a visitor until they register)

Thanks!

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Here are the details...
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We run a free membership website where we try to post news/info/discussions that is relevant and helpful to our members. I posted an article today that pointed out this organization's much higher prices in Canada (for certain products) when compared to the prices charged by their Philippines parent organization -- even after the exchange rate has been taken into consideration.

The Canadian office claims that our article makes it look like they are gouging our Canadian members -- when the additional prices simply reflected the additional cost they've incurred to import certain items into Singapore.

My contention is that historically these product-types have been offered by this organization (as well as other in the same industry) at a price that is merely reflective of our exchange rate, and no more.

Maybe you can add a link in your footer. One to link to your privacy policy, one to link to your terms of use, one to link to a disclaimer, etc.

Not sure about the legal issues. Check out a site like amazon.com or epinions.com and read their disclaimers. They allow user reviews of products, which one might imagine might be negative at times.

Good luck.

Thanks, Sunsnapper! I'll post it as a footer and link to one of the Q&A in our FAQ section.

Remember, anyone can sue you for anything even if they're wrong. A disclaimer will let readers know that your not responsible for content provided by others. Yahoo and other have 'not so favorable' content all over the place but, they don't take it down just because someone asks.

What you need to do is open a dialog with the company threatening suit and ask them if this post exposes copyrighted material, material covered by the DMCA, or if it infringes on any IP they may own.

If it is, I would suggest they give specific example of how it infringes then consider removing the post. If they just don't like that someone said something negative, then they are SOL. It's call the First Amendment to the Constitution, Freedom of speech.

Let them know that if they want to go after the poster directly, then have them get a court order to expose the posters information stored in your system. That's all your obligated to do unless there's a copyright or other infringement.

Hope this helps.

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Just thought I'd pop in with a comment here. The above statement is a misconception. I used to live with a lawyer, and here's the deal: the First Amendment to the US Constitution only prevents the government from abridging your freedom to speak. It does not prevent actions such as the one referenced. You can be sued under libel or slander laws for some writings or statements, depending on the nature of the writing or statement.

It's unclear to me if the original poster is in Canada or the US, so the whole First Amendment point might be moot anyway.

If the company claims the post is inaccurate, then it would seem to me that the web site's best action is to post the company's rebuttal. It gives them the opportunity to be heard but allows the original post to stand. People are then free to make up their own minds, and the company, it would then seem, no longer has grounds to complain.

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Aerobrick

DISCLAIMER: I'm not a lawyer, and you shouldn't construe this as legal advice.

If the story is true they should theoretically have no right to complain. That is a perfect world however and not the one we live in.

If it was me I'd go on the offensive and tell the world what a slimy thing they are trying to do in squashing all negative press about their company.

Some similar cases have popped up this week, most notably at www.whitehouse.org, who was threatened about an unflattering bio of Lynne Cheney by Whitehouse lawyers, who is a public figure and open to parody. (ACLU lawyers eagerly took that case). And of course the Crossroads mall incident where the mall arrested a man for wearing a peace t-shirt. The charges were dropped in that case due to massive negative publicity for the mall and it's owners.

I am very curious to see the offending post and to know what slimeball company is asking you to throw away your God-given birth right of communication just to protect their reputation to sell more crap.

They seem to be paranoid about negative publicity, if it was me I'd give it to them. But that's me, you should decide what is the best way to handle this for yourself.

I'm upset by this and I call myself Big Brother, the irony is thick.

www.newshax.com

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First, my disclaimer: I am a law student, but I am NOT an attorney. I'm not offering legal advice. I'm merely tellin you how I understand the law based on the information I have encountered thus far.

It sounds like you are in Canada. If you were in the States, I'd probably be able to provide you more accurate information. It sounds like what they are suggesting is that this is libel, in which case they would have a hard case to prove (at least in US courts). In the States (and Canadian common law may have adopted this, as well) a business organization is typically considered to be a public figure, meaning that if the company wants to sue for libel, they have to prove that (a) the statement was true, (b) the statement was defamatory (injurious to reputation), (c) the statement was published (a given here), (d) the statement specifically identified the plaintiff, and (e) either (1) the statement was known by the publisher to be false or (2) the publisher disseminated the information with a reckless disregard for the truth.

You would have three defenses in this case: truth (the plaintiff would have to prove that the statements were false), lack of actual malice (the "known to be false" issue), and the defamation issue (is the statement really injurious to reputation?).

Unless there are some really outrageous facts here that you haven't shared, they've got holes you could drive a truck through. I doubt that they could prove any of these factors. (Again, this is an American standard, but since Canada courts use common law, it could well have been adopted in the Canada, as well.)

Incidentally, if you're an American and your site is hosted in the states, Canada probably doesn't have personal jurisdiction over you, anyway, unless you do a lot of business in Canada.

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Typically, yes and no, but yes more than no. Something along the lines of "All opinions expressed are those of the author and do not reflect the views, beliefs, or positions of this site, its management, or owners" will go quite a ways. It's not dispositive, but it doesn't hurt.

Most of the time, a website such as this one is considered a "secondary publisher" if it is open to the public for posting. (The "primary publisher"--the author--would be totally liable.) The owner's liability is typically limited that of, say, someone who owns a physical bulletin board in a public space where members of the public post signs. You may have a responsibility to remove information posted by others that is libelous per se, but you are typically not held liable if you do not know or have no reason to know the information is libelous.


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Put it on the front page (like most porn sites do....or so I've heard...) and/or in a pop-up window, and make very visible links to it on every page. It might also help to make sure your terms of service for users who post includes an indemnity clause: "User agrees to indemnify and hold harmless [owner] for any damages (including but not limited to legal fines, fees, and awards) that result from information I post on this site. I understand that I am responsible for the content of my posts and for their legal consequences, including liability for defamation, blah blah blah..." That way, if you do get sued, you can file a third-party claim against the author of the post. More importantly, it makes people think twice about posting potentially libelous information.


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See, this is where I think they have a proof problem. They would have to prove that your math is wrong, and that the prices are not higher. If they can't prove that, they're SOL.

What I would probably do is make their behaviour in dealing with you an issue by posting copies of all of their correspondence on the site. Suddenly you become little David and they are big Goliath, and they look like they're simply picking on someone to be a bully. This is what the owner of the website that parodied the Bush campaign did when they started trying to cause him legal trouble. It became such an embarassment for them that they backed off and left the guy alone. I think they even agreed to pay his legal bills in lieu of being hit with a Rule 11 sanction.

BTW, there's a very good article on this on FindLaw athttp://library.lp.findlaw.com/articles/file/00009/005576/title/Subject/topic/Injury%20%20Tort%20Law_Defamation/Libel/Slander/filename/injurytortlaw_1_213


Good luck.

What a great community!

Thank you for all your support and help. I really appreciate it. And thanks ACE for taking all the time to post all that legal info.

I have not heard anything from them today, and am hoping that cooler heads will prevail. I will keep everyone posted if there are any new developments. We are in Canada (our web host is in US).

Thank again, everyone! It's a real previlege to be a part of this great community.

This topic is a few months old now, but I figured I would chime in with something I recently learned.

If you are going to have some type of disclaimer on your website, make sure that it is implemented in such a way that the user MUST acknowledge it.

Let's take two examples.

1) You have a link at the bottom of every page of your site that says "Privacy Policy" or "Terms of Use". The user must go click the link to bring it up.

2) The user can not progress onto the site until they have checked some box or clicked some button acknowleding that they have read and understand the "terms".

Case number 1 occurs on almost every website you see. Anyone and everyone can surf a site, post to a site, etc., etc. and never actually go click the link at the bottom.

Case number 2 is standard on any major software you buy. Think about MS Windows or some other software you purchased that bring up the license agreement that you must aknowledge before you can continue the install. If you don't acknowledge it, you can't install the software.

I recently read an article in a paper that said that courts have recently been ruling that in CASE 1, the owner/operator of a website can be sued, etc. because the user never really acknowledge or agreed to the terms before using the site.

If you opt of option 2, your "more" covered because the user agreed to the terms prior to using the site. With Xoops, this is implemented at registration, so your best option would be to lock down those parts of your site that could cause problems and then only those users who have ackowledged the disclaimer can actually view and post. I've actually created a much longer, more detailed "Terms of Use" that the user must agree to.

Good luck.

Since Jacktsai is listed as a member from Singapore (and who knows where the site is actually hosted !), I am wondering if there are some jurisdictional issues here as well in terms of which country's laws would apply (or to be more pragmatic, could be enforced).

I would probably handle this by publically inviting the company to post a rebuttal (or explanation of the pricing differential) on your site if they feel it is inaccurate.