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'Gripe sites' raise questions about free speech on the Web.

Nick Ciarelli, a Harvard University student, is a big fan of the Apple computer company. He publishes a Web site, ThinkSecret.com, where he reviews Apple products, discusses them with other users, and posts news about the company. Ciarelli, who writes under the pen name Nick dePlume, started the site when he was 13 years old.

But Apple isn't returning his love: In January, the company filed a lawsuit against Ciarelli in Santa Clara County, California, saying he published confidential information--Apple's planned release of a new computer and new versions of the iPod--before the company made its own official announcement. Apple's lawsuit says the information constituted a trade secret that Ciarelli had no right to publish on his site. (Apple Computer, Inc. v. N. dePlume, No. 1-05-CV-033341 (Cal., Santa Clara County Sup. Ct. filed Jan. 4, 2005).)

Ciarelli's lawyer, Terry Gross of San Francisco, said his client is entitled to the same "reporter's shield" protections trader the First Amendment that any other journalist is.

Ciarelli's case is one in an emerging tug-of-war between companies and individuals who write about them online. Some sites, like ThinkSecret, are fan sites, but others are harshly critical "gripe sites." The cases call up questions about the limits of the First Amendment, the definitions of "journalist" and "publisher," and how far companies can go to protect confidential information.

"The Supreme Court has held repeatedly that journalists and publications can't be held liable, even if the information they publish was obtained illegally, as long as the information is newsworthy," said Gross. "That is clearly the case here: [Ciarelli] wrote that Apple was about to release these products, and these were the features they might have. This is obviously newsworthy."

Gross said Apple is claiming that Ciarelli interfered with its ability to control the release of its own information and denied it the opportunity for mainstream press coverage.

"[Apple] is saying, 'We want to keep this information confidential so that when we do officially announce it, the press will cover it.' That seems pretty ridiculous," he said. "Controlling the release of news is not what the trade secret law was meant to protect." At press time, Gross was filing an anti-SLAPP (Strategic Lawsuits Against Public Participation) motion to strike Apple's complaint. The state's anti-SLAPP provision allows the motions when thin are intended to protect "conduct that falls within the rights of petition and free speech."

"This is a hot issue," said Eugene Volokh, a professor of law at the University of California, Los Angeles (UCLA), School of Law and founder and coauthor of the Volokh Conspiracy blog (volokh.com). "It raises a lot of questions. You can sue someone who leaks information, but can you sue the publisher of that information? Is a Web site entitled to a journalist's protections? What is a journalist? What is a blog? Is it a magazine? Is it the functional equivalent of a magazine? And so on."

Companies like Apple may argue that Web sites are not the same as professional publications and are not entitled to the same shield-law protections. But Volokh said California law is broad and pointed to language in the state constitution that defines a journalist as a "publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service." He noted that some state laws protect only "professional" journalists and others require that the reporter work a set number of hours or make a certain amount of money from journalism. California does not.

Ciarelli is not the only target of Apple's ire. In Marcia, the Santa Clara County Superior Court ordered the operators of two other Web sites, Power Page.org and AppleInsider.com, along with ThinkSecret, to name the sources who told them about new products. The information, Apple claims, could only have come from company insiders who stole trade secrets. The court also granted Apple's request to subpoena PowerPage's e-mail provider.

"These [actions] are actually more appropriate," Gross noted, because rather than targeting the Web sites, "they are going after the people who are the actual leakers for violating confidentiality, agreements. The approach is more appropriate as it focuses on trade secret misappropriation."

Volokh said these actions "might deter the folks who want to leak, but probably won't deter a newspaper or a blog."

The gripes of wrath

What the three sites have in common--aside from the fact that Apple is suing them--is that they are aimed at Apple enthusiasts. On the other end of the spectrum are gripe sites, where disgruntled consumers air complaints about major corporations like Chase Bank, Starbucks, or Dell, or about local doctors, home builders, or car dealers. The speed and ease of Web publishing have contributed to the proliferation of sites like microsuck.com, which exists "to express deep and sincere hatred for Microsoft"; CoCourtsAreASham.com, which details the writer's frustrating encounters with the Colorado court system; and StainedApron.com, a gripe site for restaurant servers where "no tale is too depraved."

On these sites, angry posters let loose with real or perceived slights at the hands of corporations and businesses. Now, some businesses are firing back.

Elaine Prentice, who lives near West Palm Beach, Florida, said she suffered from improper and incompetent dental surgery and that the Florida Board of Dentistry was unresponsive to her complaint. Her Web site, dental fraudinflorida.com, names the dentists she alleged were responsible and details her battles with the state board. She calls it a public service for consumers.

The dentists decry the site as a public nuisance and have issued cease-and-desist orders and filed a lawsuit against Prentice. Their suit argues that she cannot legally post information about the dentistry board since its proceedings are considered confidential.

"The First Amendment animates this case," said Prentice's lawyer, Paul Levy of Washington, D.C.-based Public Citizen. "The main issue is this: Is the Florida statute that calls for confidentiality about the board of dentistry a limitation on anything a citizen says?" He said courts have found that free speech rights trump state law.

"She is just saying that the board is not doing its job. It can't be that state law says you cannot criticize a state agency," Levy said.

Trademark law to the rescue?

Levy noted that most businesses invoke trademark law, rather than libel law, against gripe sites. The most common argument claims trademark infringement--that using the company's name will create confusion among consumers, especially since many gripe sites' titles include the company's name, as in PayPalSucks.com or AOLSucks.com.

For instance, Levy represented Michael Kremer, the operator of two gripe sites critical of the Bosley Medical Institute, a hair-replacement clinic headquartered in Beverly Hills, California. Bosley sued Kremer, saying the names he used--bosleymedical.com and bosleymedicalviolations.com--were similar enough to Bosley's that they could cause confusion.

In dismissing the suit, the court noted that Kremer had large-font disclaimers at the top of his sites alerting consumers that the sites were anti-Bosley. "The relief Bosley seeks would have a chilling effect on Kremer's free speech rights," the district court held. "Kremer is not making commercial use of Bosley's marks. Rather, his use of the marks in his domain names and Web sites is in connection with noncommercial critical consumer commentary, which is protected speech." (Bosley Med. Inst., Inc. v. Kremer, No. Civ. 01 1752WQHJMA, 2004 WL 964163 (S.D. Cal. Apr. 30, 2004).)

The argument that anyone would mistake the gripe site for the company's site "is ridiculous on its face," said Levy.

And case law would mostly back him up. Courts have generally found that as long as Web sites are not set up for commercial, profit-making, or advertising purposes, the law cannot limit their content. To do so, a company would have to show that the Web site operator violated the Anti-Cybersquatting Consumer Protection Act (ACPA) by acting "in bad faith" with an "intent to profit." The law has been used to protect companies from "cybersquatters" who buy domain names and then hold them "hostage" until the company buys them. But companies have been less successful in using ACPA to stop gripe sites.

In one of the earliest gripe-site cases, the Bally Fitness company sued Andrew Faber, who operated an anti-Bally Web site, for trademark infringement and dilution. The federal district court in California ruled for Faber in 1998, concluding: "The explosion of the Internet is not without its growing pains. It is an efficient means for business to disseminate information, but it also affords critics of those businesses an equally efficient means of disseminating commentary." (Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161 (S.D. Cal. 1998).)

More recently, the Fifth Circuit reversed a lower court finding that Joseph Maxwell, a Houston-area engineer, had violated ACPA and the Lanham Act, which also protects trademarks, by setting up a Web site critical of a local home builder. "Maxwell's conduct is not the kind of harm that ACPA was designed to prevent," the court held. (TMI, Inc. v. Maxwell, 368 F.3d 433 (5th Cir. 2004).)

In January, however, the U.S. District Court for Minnesota enjoined William Purdy from using any domain name similar to the ones used by the Coca-Cola Co. or its subsidiaries. Coca-Cola proved both that consumers were confused about whether Purdy's Web sites were endorsed by the company and that Purdy was using the name to misdirect consumers to a site where he was raising funds for his nonprofit organization. (Coca-Cola Co. v. Purdy, No. 02-1782 ADM/JGL, 2005 WL 212797 (D. Minn. Jan. 28, 2005).)

But in most cases, trademark dilution and infringement claims have not trumped free speech rights. "The trademark-confusion theory isn't apt in these cases," said UCLA's Volokh. "If somebody set up a Web site called VolokhSucks.com, we would do nothing to try to stop them, because it would be obvious we didn't endorse it."

Corporations may get a bigger stick for hitting gripe sites if Congress passes the Trademark Dilution Revision Act of 2005. According to Marvin Johnson of the American Civil Liberties Union--who testified on the bill in February before the House Judiciary Subcomittee on Courts, the Internet, and Intellectual Property--the revised law would require companies to prove only that there was a "likelihood of dilution" of their trademark, not actual dilution. Nor would they be required to prove falsity or malice.

As a result, "trademark holders will now have a more potent weapon to stifle speech that is critical or a parody of their trademark," Johnson testified. He concluded: "As the FTDA [Federal Trademark Dilution Act] expands, it alters the dynamic tension between trademark holders and free speech in favor of trademark holders.... It places the trademark holder in the position of holding an indefinite monopoly in expressive subject matter, and obstructs the public's ability to freely engage in democratic dialogue."

Johnson noted that already, many gripe site operators simply stop publishing when threatened with a lawsuit. With these changes to the law, he said, the effect would be greater and the result would be to "stifle speech in its early stages."

Lawyers for gripers agree that the threat of a lawsuit is often enough to make operators shut down their sites. Nick Ciarelli initially offered to pull the plug on ThinkSecret rather than face the cost of a lawsuit against Apple, but once Gross took the case pro bono, "he decided he didn't want to let them win by intimidation," Gross said.

Corporations certainly have more resources than the average Web site operator. Paul Levy took Prentice's case pro bono; Volokh has consulted pro bono with the Electronic Frontier Foundation on similar cases.

Levy said that for people who feel wronged, talking about it may be their best, or in some cases only, recourse. "It is important," he said, "for citizens to simultaneously pursue administrative remedies and tell their stories to the public."
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Author:Sileo, Carmel
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