Instagram Is Now Bigger Than Twitter With 300 Million Monthly Users

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Instagram now has 300 million monthly users, picking up 100 million since March. The photo- and video-sharing app has surpassed Twitter's official user count of 284 million.

Facebook's companion company, bought for $1 billion in 2012, announced the milestone today, as well as the fact that it will start handing out verified accounts, the kind coveted by Twitter's users.

The verified badges will be for public figures and brands, Instagram said. Verified badges, coming within the week, "will make it easier for people to identify and follow the authentic brands they care about," Instagram said today in an email. "When an account is verified, a blue badge will appear next to its name in its profile as well as in search."

Instagram has become the visual cousin to Facebook, attracting younger users at a time when the parent company is seen by some to be losing its youth appeal. Instagram also is expanding its ad business, recently releasing video ads.

Lastly, Instagram said it is purging fake accounts from the site, which means a number of brands could see their follower counts decline. Instagram said this is part of its ongoing anti-spam efforts.






December 11th 2014 Facebook, Mobile, spam, Technology, Twitter

LinkedIn Can’t Shake Publicity Rights Claims Based on Reminder Emails

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This is a lawsuit against LinkedIn alleging that LinkedIn wrongly sent out repeated invites to users’ contacts. In an initial ruling, Judge Koh denied LinkedIn’s request to dismiss on the grounds of standing but dismissed the federal claims for alleged violations of the Stored Communications Act and the Wiretap Act. Screen Shot 2014-11-17 at 10.25.45 AMThe court said that Plaintiffs consented to the initial invitation email but not the second and third emails. (Blog post on the previous ruling here.) The plaintiffs’ second amended complaint drops the federal claims and alleges violations of publicity rights and California’s unfair competition statute. While the court finds some technical deficiencies with plaintiffs’ pleading, it still declines to dismiss the crux of the case.

The sign-up process: The court walks through the sign-up process in detail. Shockingly, LinkedIn does not have a check-the-box implementation for its sign-up process. Rather than forcing users to check the box as a condition of proceeding, LinkedIn merely includes an asterisk next to a “join linkedin” button that directs the user to a line at the bottom of the page that then link to the relevant policies.* After confirming that the user wishes to “grow their network on LinkedIn,” the user is then directed to the third party email provider page (e.g., Google, Microsoft, and even AOL) where the user then enters in their email password. The court’s run-down of the process vis-a-vis various other platforms is interesting, as the platforms vary in their presentation and amount of control they say they provide to users. sign upThe user enters their password and then can connect with those of their contacts who already have LinkedIn accounts and can also urge those who do not have accounts to sign-up and ultimately connect with them on LinkedIn.

[* Note: we have repeatedly blogged about cases where large, established companies have a less-than-airtight sign-up process, which results in all sorts of entirely avoidable legal issues. Zappos was one of the more prominent examples, but there have been others. I didn’t check to see if they revised their sign-up process, but if not, that is something LinkedIn should take care of ASAP.]

Reminder emails: The court also describes the reminder emails in detail. The first email is an “invitation to connect”; the body says “I’d like to add you to my professional network on LinkedIn.” If this email does not result in the recipient joining, a reminder email is sent. This is titled “reminder about your invitation from [user’s name].” Finally, LinkedIn sends a second reminder. For some reason, the second reminder email includes the user’s profile picture.

The plaintiffs describe the difficulty in stopping these reminder emails. Apparently, you have to “individually open up each invitation from within his or her LinkedIn account . . and click a button that allows the user to withdraw that single invitation.” Plaintiffs further point to the complaints users have raised (for example):

at this point I’m finding LinkedIn more of a problem in terms of hurting my reputation rather than helping it.

Ouch. Plaintiffs also point to the various representations LinkedIn made about “respecting users’ privacy” and that LinkedIn would “not email anyone without your permission.” Finally, Plaintiffs pointed to statements in LinkedIn’s filings and corporate materials to the effect that this type of network-based emails along with reminders continue to be an important way for LinkedIn to grow its user base.

LinkedIn raised three defenses, none of which resolve the lawsuit.

Statutory damages under section 3344: First, LinkedIn argued that plaintiffs were not entitled to statutory damages under California’s publicity rights statute because they did not allege emotional damages. The court agrees, and says that while economic damages and reputational harm are available as actual damages, the statutory damage provision was aimed to provide relief to non-celebrity plaintiffs who suffered mental harm from commercial misappropriation of their name. While emotional injury that results from reputational harm is sufficient, plaintiffs did not allege emotional injury. Because plaintiffs only asked for statutory damages and did not allege emotional injury, the court dismisses this claim, but grants leave to amend.

CDA 230: LinkedIn also raised a Section 230 argument, saying that the emails were third party (i.e., users’) content. The court disagrees, crediting plaintiffs’ allegation that LinkedIn was responsible for the content, layout, and design of the reminder emails and cannot take refuge in Section 230. The court focuses on the fact that LinkedIn decided how many emails to send and things like whether or not to include the users’ picture in the email. According to the court, the textual differences in the second and third email also point in the direction that LinkedIn ultimately controlled the content (or, as the court intimates without saying directly, made material changes to content provided by the user).

First Amendment: The court also rejects LinkedIn’s First Amendment defense. First, LinkedIn argued that the reminder emails are non-commercial speech, subject to the full protections of the First Amendment. The court disagrees. Second, LinkedIn argued that even assuming the emails are commercial speech, plaintiffs can only state a right of publicity claim when their likeness is used to promote an “unrelated product”. The court says neither the publicity rights statute nor common law contain such a limitation. Finally, LinkedIn argued it’s entitled to the “adjunct use” rule, where the commercial promotion is incidental to the protected expression. No luck on this score either.

[Finally, the court also rejects the “incidental use” argument, which seems vaguely similar to a fair use argument.]

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LinkedIn is doing its best to whittle down this lawsuit, and perhaps it may still succeed, but the court’s order seems to indicate that there’s a cognizable claim buried in there. Auto-posts and emails sent on behalf of users that they can’t control are terrible behavior on the part of networks. Not giving users granular control over these emails just feels like LinkedIn was trying to get cutesy.

Publicity rights in California have turned into a sleeper hit for plaintiffs. (See, e.g., Fraley.) It’s interesting to see the positions reversed here, with the defendant seeking support in an argument premised on plaintiffs’ failure to allege emotional damages. Usually defendants are taking plaintiffs to task for not alleging and having support for economic damages. I’m not sure what to make of the statutory damages provision of section 3344. It would seem trivially easy for plaintiffs to allege that they suffered emotional harm as a result of seeing their network reputation suffer, and the court even alludes to the fact that emotional injury that results from reputational harm is sufficient.

As with all privacy lawsuits, this one is no different in citing to defendant’s flowery marketing assurances—there’s always plenty to choose from.

I don’t think there’s much to say about the First Amendment rulings. The First Amendment defenses did not seem particularly strong to begin with, and I’m surprised the court gave it as much attention as it did. As for the Section 230 defense I agree with Eric’s comments below–it smacked of desperation, or an after-the-fact justification that was not considered at the design phase.

Eric’s Comment: I hate to Section 230 losses but I can see why Judge Koh ruled as she did. She explains about the first and second reminder emails:

Contrary to Defendant’s assertions, then, the first reminder email appears to transform the substance of the initial invitation email from “Do you want to connect with me?” to “You never responded to the user’s first invitation so let us ask you again, do you want to connect with her?” The second reminder email is arguably more transformative still, as the substance changes from “Do you want to connect with me?” to “You never responded to the user’s first invitation or to our reminder concerning that invitation, so let us ask you for a third time, do you want to connect with her?”20 It is precisely this changed character of the reminder emails—from invitation at first to potentially annoying by the end—that the Court found could contribute to the additional harm the reminder emails allegedly caused.

As she summarizes later:

Plaintiffs allege that LinkedIn generated the text, layout, and design of the reminder emails and deprived Plaintiffs any opportunity to edit those emails, which Plaintiffs had no knowledge were being circulated on their behalf.

Perhaps LinkedIn prospectively thought it could rely upon Section 230 for these circumstances, but I doubt it. Instead, I suspect the Section 230 defense emerged only in desperation.

Case citation: Perkins v. LinkedIn, 13-CV-04303-LHK (N.D. Cal. Nov. 13, 2014)

Related Posts:

Email Harvesting: Repeated Emails From LinkedIn May Violate Publicity Rights

Path May Be Liable for Text-Spamming Users’ Contact Lists

Facebook’s “Browsewrap” Enforced Against Kids–EKD v. Facebook

Wiretap Claims Against Gmail Scanning Survive Motion to Dismiss — In re: Google Inc. Gmail Litigation

Court Rules That Kids Can Be Bound By Facebook’s Member Agreement

Facebook Sponsored Stories Settlement Approved – Fraley v. Facebook

Judge Seeborg Rejects Sponsored Stories Settlement For Now — Fraley v. Facebook

Facebook “Sponsored Stories” Publicity Rights Lawsuit Survives Motion to Dismiss–Fraley v. Facebook

Court Blesses Instagram’s Right to Unilaterally Amend Its User Agreement–Rodriguez v. Instagram

Privacy Plaintiffs Lose Because They Didn’t Rely on Apple’s Privacy Representations — In re iPhone App Litigation

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November 18th 2014 Marketing, spam

California Anti-Spam Law Doesn’t Require Sender’s Name In The ‘From’ Line or Domain Name

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While spam litigation generally has diminished, plaintiffs continue to push claims under California’s anti-spam statute. Federal court decisions were mixed on what types of California’s anti-spam claims are preempted by CAN-SPAM (whether plaintiffs had to allege fraud or merely misleading statements). shutterstock_148273682-But there were a few plaintiff-favorable rulings in California state court. The Hypertouch v. Valueclick case found a narrow scope of preemption, envisioning a greater range of anti-spam claims in state courts. Kleffman v. Vonage, which held that garbled domain names even if intended to defeat anti-spam filters were not necessarily misleading, was helpful, but did not stem the tide entirely. In Kleffman, the court noted that the domain names in question could all be traced to Vonage’s marketing agent if someone were to take the trouble to do a WHOIS hookup. Finally, Balsam v. Trancos struck a clear blow for the anti-spam community and held that a domain name which could only be traced to a non-entity/domain name and its PO Box was not “fairly traceable,” so commercial emails sent from these types of domains were misleading.

In this case, the emails advertised free hair care or beauty products and were sent from random domains, with individual senders such as “Proactive Special Offer,” “Wen Hair Care” and “Proactiv Bonus Gift”. The subject lines purportedly advised recipients that they were entitled to a “free or complimentary gift” without mentioning that these were merely gifts contingent upon making certain purposes. The emails were sent by Guthy-Renker. Although not identified in the domain name or the from line, Guthy’s name was in the body of the email. Similarly, the body of the email made clear that the gifts in question were not just free gifts but were contingent upon certain purposes. (Exhibit A included an email bearing the subject line “Exclusive WEN Deal: Complimentary Shipping, ” and it originated “From: Wen Hair Care (mavk@r.andedox.info)”.)

Misrepresented header information: The court surveys the cases and says that plaintiffs’ arguments regarding alleged concealment of the sender’s identity missed the mark because here the body of the email identifies Guthy as the sender:

The emails were advertisements for Guthy’s various consumer brands. The emails provided a hyperlink to Guthy’s website, and provided an unsubscribe notice as well as a physical address in Palm Desert, California. Plaintiff cannot plausibly allege that Guthy attempted to conceal its identity, as the clear purpose of the emails was to drive traffic to Guthy’s website.

The court does not cite to Mummagraphics, one of the earliest spam cases, which came to a similar conclusion.

Misleading subject line: Here, the parties disagreed as to whether an email which in its entirety paints a complete picture but has a halfway accurate subject line violates the statute. The court rejects plaintiff’s argument and says that a reasonable sender and recipient would not view the email as misleading. The court disagrees with the Hypertouch case on this point. In Hypertouch, the court says that a misleading nature of the subject line cannot be cured by text in the body of the email.

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It’s almost 2015. I’m surprised people are sending spam emails. I’m equally surprised people are suing over these emails. As we’ve noted, much of the focus has shifted to text-message-spam and the TCPA.

The key question is whether an email is materially misleading. The federal CAN-SPAM cases set this as a standard. Given CAN-SPAM’s preemption of state statutes, this is a boundary the state cases should keep in mind as well. My instinct is that correct result as to the subject line is that the email is rendered not materially misleading by statements in the body of the email. The domain name/sender issue is slightly more difficult. The argument that the from line must identify an actual person borders on frivolous, and this case correctly rejects it. The trial court had a nice quote that plaintiffs’ argument that the “from line” had to identify an actual person:

is akin to complaining that an email from ‘Buick’ is falsely labeled because . . . the sender should read ‘General Motors Corporation’.

As to the traceability of the domain name itself, I would think that as long as the email in question is traceable to someone or some entity, this should be sufficient. (See Kleffman.) What the anti-spam plaintiffs rightly get at is that someone should be identifiable–after all they need some place to direct their wrath? Whether this means you can look up the WHOIS for the domain name to identify the sender, or identify the brand in the body of the email, either of these should render the email not misleading as to its source. This was the holding from Mummagraphics and Kleffman. (This assumes that CAN-SPAM leaves room to bring a state law claim based on a failure to disclose information: the identity of the sender. It’s also worth noting that the text of the statute speaks to “falsified, misrepresented, or forged header information” and doesn’t leave much room for plaintiffs’ arguments that email headers must identify senders.)

At the fringe, these decisions raise the issue of whether a commercial entity has the right to email anonymously. I doubt this issue will ever be squarely presented, and as I’ve mentioned before, First Amendment challenges to anti-spam statutes don’t tend to fare very well.

This case is worth watching. Balsam v. Trancos had zero participation by amicus (surprisingly) and I hope the same thing doesn’t happen here.

case citation: Rosolowski v. Guthy-Renker LLC, B250951 (Cal. Ct. App. Oct. 29, 2014)

related posts:

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

Lawyer’s Suit Over “Professional Recognition” Spam Flops

Path May Be Liable for Text-Spamming Users’ Contact Lists

CAN-SPAM Preemption Doesn’t Apply To Fraud…And More

Advertiser May Have Claims Against SEO Firm Using Undisclosed Spammy Practices

Court Accepts Narrow View of CAN-SPAM Preemption but Ultimately Dismisses Claims – Davison Design v. Riley

Another Spam Litigation Factory Unravels –- Beyond Systems v. Kraft

Independent Contractor Relationship Between Sender and Advertiser Dooms Spam Claims – Kramer v. NCS

CAN-SPAM Violations For Private WHOIS Information and Putting Disclosures in Remotely Served Images – ZooBuh v. Better Broadcasting

Crazy SOPA-Like Attempt to Hold International Banks Liable for Pharmacy Spam Fails on Jurisdiction Grounds–Unspam v. Chernuk

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Court Refuses to Dismiss Claims Against Alleged Twitter-Bot Spammer–Twitter v. Skootle

Is SOPA’s “Follow the Money” Meme Infecting Anti-Spam Litigation? – Project Honey Pot v. Does

Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation

California Appeals Court Says Emails That Don’t Identify Sender Violate State Spam Statute – Balsam v. Trancos

Old School Spam Plaintiff Rebuffed in the Ninth Circuit

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

Court Dismisses Lawsuit Under Michigan Spam Statute Based on Preemption and Lack of Standing — Hafke v. Rossdale Group, LLC

Spam Claims Covered by Contract’s Indemnity Clause–Commonwealth Marketing Group v. IMG Assocs.

In Facebook’s Lawsuit Against Alleged Spammer, Court Denies MaxBounty’s Motion to Dismiss

Seventh Circuit Awards e360 a Whopping $3 in Damages Against Spamhaus — e360 v. Spamhaus

Court Rejects First Amendment Challenge to CAN-SPAM Indictment — US v. Smallwood

Jury Rejects Lawyer’s Claims Under DC’s Anti-Spam Law — CyberLaw v. Thelaw.net

Court Says CAN-SPAM Plaintiff Can’t Take Second Bite at the Apple — Melaleuca v. Hansen

Claims that Emails were not Labeled as Ads and did not Disclose Tracking Preempted by CAN-SPAM — Martin v. CCH

N.D. Cal.: Facebook Posts are Electronic Mail Messages, Subject to CAN-SPAM — Facebook v. Maxbounty

CA Appeals Court: Claims Under State Spam Statute Not Preempted by CAN-SPAM – Hypertouch v. Valueclick

Lawyer-Spam Plaintiff Loses in the Sixth Circuit Over Allegedly Misleading DISH Network Emails — Ferron v. Echostar

Domain Name Privacy Protection Services Not Liable for Failure to Disclose Identity of Alleged Spammer — Balsam v. Tucows

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November 11th 2014 spam

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

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Screen Shot 2014-10-07 at 8.54.54 AMShopkick is a rewards-based app that shoppers use on their phone while they are in-store shopping. I’m not precisely sure how it works (you get points for trying on items or walking in certain parts of the store?) but it did not seem to have crowd-buying component to it. Apparently, Shopkick allowed its users to send text messages giving their friends “points” on Shopkick and encouraging them to try the app. It’s unclear if the users must individually send such messages, or if the messages are sent out to all contacts en masse.

A recipient brought claims under the TCPA. The court initially dismissed the complaint because it failed to allege use of an automatic telephone dialing system. The amended complaint withstands a renewed motion to dismiss. The court says that plaintiffs face inherent difficulties in figuring out whether defendant uses an ATDS (plaintiff has no idea what equipment defendant may be using). Here, the allegations (uploading numbers from a contact list and sending out messages en masse) raise a possible inference that such equipment is being used. Courts have taken different approaches to this issue, with some saying that anything could be an ATDS, and with others vaguely saying that something that sends out messages in some orchestrated fashion would likely have ATDS capacity. In any event, the court denies the motion on the ATDS issue.

Shopkick also brought a motion to disqualify both plaintiffs and plaintiffs’ counsel. An earlier motion to disqualify raised the issue that the person who sent the text message and the recipient would be at odds, because Shopkick could point the finger at the end user who initiated transmission of the message, but the court’s most recent order does not mention defendant making this argument. Ultimately, the court says that adequacy of representation is more appropriately raised down the road (at the class certification stage).

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It cannot be said often enough that text-based marketing is a bad idea. Don’t do it! This case illustrates how easy it is for plaintiffs to allege the elements of a TCPA violation. The message is unwanted (by definition, to a potential plaintiff, it always is). All that is left is that defendant used an auto dialer, and this case indicates that the pleading standard is a pretty low bar.

It’s unclear if this is a “refer a friend” case or if Shopkick “commandeered” the contacts, as plaintiffs allege. To the extent it’s the former, it does raise an interesting issue of whether Shopkick should be held liable for its users’ conduct of initiating messages. The answer should be no. Interestingly, Shopkick’s initial motion to disqualify raised the issue that users may have divergent interests, but I don’t think anyone seriously thinks Shopkick would try to really throw its users under the bus (i.e., seek indemnification from users).

Perhaps Shopkick thought it would be able to argue that the messages were not truly marketing messages, since they were just individual encouragement by users encouraging others to sign up? Courts have not accepted this argument. Compare the messages here with the messages in cases such as Voxernet or more recently in WhisperText (dismissing claims but granting leave to amend). At least in those cases there’s an argument to be made that the messages are sent to alert the recipient of the app so the sender and recipient can communicate via the app.

I’m somewhat sympathetic to plaintiffs here, assuming their version of the facts is accurate. However, the lawsuit is representative of a broader trend. Cases (including Satterfield v. Simon & Schuster) set a low bar for what it takes to plead a text spam complaint. (Perhaps Congress was sloppy in its initial drafting or the statute is outmoded.) A predictable torrent of lawsuits followed. There are a few cases pending winding their way through appeals and proceedings in front of the FCC that could inject some much needed common sense into text spam litigation, but my sense is that it will need a legislative fix.

Case citation: Huricks v. Shopkick, C-14-2464 MMC (N.D. Cal. Oct. 1, 2014)

Related posts:

TCPA Claim Against Taco Bell Fails For Lack of Agency

TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Group Text Services Grapple with TCPA Class Actions

Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

Cellphone Spam Violates TCPA–Joffe v. Acacia Mortgage

Path May Be Liable for Text-Spamming Users’ Contact Lists

Yahoo! Scores Significant Win in Email-to-SMS Lawsuit

Spam Arrest’s Sender Agreement Fails Because Email Marketer’s Employees Lacked Authority–Spam Arrest v. Replacements (Forbes Cross-Post)

Telephone Consumer Protection Act Case Update – Summer 2013 Edition

Telephone Consumer Protection Act Case Update – February 2013 Edition

California Supreme Court: Retail Privacy Statute Doesn’t Apply to Download Transactions – Apple v Superior Court (Krescent)

Court: Customer Consents to Receive Texts by Providing Phone Number to Pharmacy – Pinkard v. Wal-Mart Stores, Inc.

Q3 2012 Quick Links, Part 3 (Advertising, Privacy, Consumer Protection)

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October 9th 2014 Marketing, spam

Your On-Page SEO is Missing a Few Factors

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250-scamsOh boy, here’s another example of Internet marketing spam / scam that I received as a blog comment…

Hello Web Admin, I noticed that your On-Page SEO is is missing a few factors, for one you do not use all three H tags in your post, also I notice that you are not using bold or italics properly in your SEO optimization. On-Page SEO means more now than ever since the new Google update: Panda. No longer are backlinks and simply pinging or sending out a RSS feed the key to getting Google PageRank or Alexa Rankings, You now NEED On-Page SEO. So what is good On-Page SEO?First your keyword must appear in the title.Then it must appear in the URL.You have to optimize your keyword and make sure that it has a nice keyword density of 3-5% in your article with relevant LSI (Latent Semantic Indexing). Then you should spread all H1,H2,H3 tags in your article.Your Keyword should appear in your first paragraph and in the last sentence of the page. You should have relevant usage of Bold and italics of your keyword.There should be one internal link to a page on your blog and you should have one image with an alt tag that has your keyword….wait there’s even more Now what if i told you there was a simple WordPress plugin that does all the On-Page SEO, and automatically for you? That’s right AUTOMATICALLY, just watch this 4minute video for more information at. Seo Plugin

Let’s dissect this…

  1. Here’s the author info:
    • seo plugin
    • 0 approved
    • SeoOptimizationxxx.com/x
    • nhsfkpqf@gmail.com
    • 23.231.7.41

    GREAT name and email address for a ‘professional’ SEO service, eh?

    Those are the easiest first clues to to spam blog comments.

  2. Then, this scammer doesn’t know how to use a blog comment form to save his (or her) life, or the English language for that matter.Yes, you can read through the text and make sense of what he is saying, but that doesn’t negate the fact that the scammer isn’t actually an SEO professional… or a professional who is competent in the English language.

  3. The advice is completely bogus, i.e. ‘nice keyword density of 3-5%’. Duh. As always, my advice is to write for humans, not search engines. The search engines ‘get it’ when you blog regularly about a consistent theme. They also ‘get it’ when you try to write to an algorithm… to the point that you will be penalized for trying to manipulate your rankings.

  4. There is no such thing as a ‘simple WordPress plugin that does all the On-Page SEO, and automatically for you? That’s right AUTOMATICALLY’.

Nope, sorry, I hate to burst your bubble, but there is not such thing as a plugin that does ‘all the on-page SEO.

REAL bloggers do their own on-page SEO by crafting titles, tags, heading tags, image alts, slugs and everything else manually to stay in Google’s good graces.

Comments, questions or suggestions? Please leave a comment below!

Cheers,

sig-ros

July 30th 2014 affiliate marketing, SEO, spam

The ‘Noticed something about your WordPress Site’ Scam

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250-scamsThat’s a catchy subject line for an email, isn’t it?

Can’t blame you if you opened it like I did.

I’ve recently received a number of emails coming through contact forms on my various sites, each with a subject along the lines of… “Noticed something about your WordPress Site”.

Here is the full text of one those emails…

Subject: Noticed something about your WordPress Site

Message Body:
I realized while I was on your website that you have a WordPress website. At first it seemed a bit sluggish and was a little slow to load. I also had this problem a while ago with one of my WordPress sites. Webhosts like Godaddy, Host Gator, Blue Host, etc often overcrowd their shared hosting plans which can be bad for your website, have you ever looked into this?

There’s a guide right on wordpress maintained by a member that shows you how to check for this in two easy steps. The guide is at:

*********.wordpress.com

If you have a moment, it’s always a good idea to follow the two steps in that guide to test your current host. Your hosting is one of the most important factors for a WordPress based website. Good luck with your website!

The site that is linked to in each case looks much like this:

fake-affiliate

The copy makes valid points about overcrowding, site speed and WordPress Administration panel loading speed.

So, I checked my http://windingway.com site which is hosted on Bluehost and this is what I found regarding the number of sites hosted at the same IP address…

winding-way-you-get-signal

Oh MY!!!

They found over 1000 domains hosted on the same web server / IP address as windingway.com.

BUT, when I did the site load test, this was the result…

winding-way-pingdom

So, what was the ‘something’ problem that they noticed about my WordPress site(s)?

The REAL problem is that the people sending those emails are affiliate scammers and spammers…

They didn’t notice anything about my websites other than they are WordPress sites.

Although I received similar emails pertaining to each of my domains, only ONE domain is hosted on BlueHost – the others are on my own dedicated server. It’s easy enough to find out where a site is hosted by going to Whois.net.

Not that they would bother… they just look for contact forms and paste in their spam messages with the hope that someone will buy the hosting they recommend through their affiliate link.

If you DO get an email like that, just mark it as ‘spam’.

We do NOT want to reward affiliates with commissions that they achieve through scamming and spamming.

Comments, questions or suggestions? Please leave a comment below!

Cheers,

sig-ros

July 26th 2014 affiliate marketing, spam

TCPA Claim Against Taco Bell Fails For Lack of Agency

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I mentioned before that a court said Taco Bell wasn’t liable for texts sent on its behalf because the plaintiff didn’t adequately allege the sender was Taco Bell’s agent (See “Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell“). shutterstock_148273682-That ruling was appealed to the Ninth Circuit, and the Ninth Circuit similarly rejected plaintiff’s claims that the main Taco Bell entity (the franchisor) should be held liable for a message sent out on behalf of one of its franchisee-associations:

Ms. Thomas did not present any evidence to the Court that Taco Bell directed or supervised the manner and means of the text message campaign conducted by the Association and its two agents, ESW and Ipsh. She presented no evidence to the Court that Taco Bell created or developed the text message. Nor did she present any evidence to the Court that Taco Bell played any role in the decision to distribute the message by way of a blast text. All of this control over the manner and means of the text message campaign was exercised by the Association, ESW, and Ipsh, and Ms. Thomas has not presented any evidence to the Court demonstrating that Taco Bell controlled the actions of these entities with respect to the campaign. Taco Bell, simply put, had nothing to do with it.

However, although the court affirmed the trial court’s rejection of the claims against the main Taco Bell entity, the Ninth Circuit held that the basis for holding Taco Bell should not be limited to traditional agency principles–it should also include apparent authority and ratification. On this issue, the court agreed with the FCC, which had earlier ruled that traditional agency is not the only route to holding a third party (non-sender) liable for text messages. A few observations about the case:

  • it’s a bummer the court chose to issue an unpublished opinion–the case involved consequential issues, and the court was covering new ground
  • it’s possible the factual scenario presented by a franchisee advertisement is unique–how will this track to traditional advertiser/sender relationships (will the typical advertiser agreement provide the requisite degree of control (over the “manner and means” of advertising) to satisfy agency principles)?
  • it’s worth contrasting this case with Satterfield, the original 9th Circuit case that started it all–that case did not delve into agency issues, although it involved an attempt to hold a third party (Simon & Schuster) liable
  • the apparent authority and ratification prongs that the court says can be additional routes to third party liability are murky and the court does not specify what exactly they mean in this context

On the one hand, this is a defense-favorable ruling in its result. On the other hand, future plaintiffs will welcome this ruling in its expansion of avenues to liability (the effect of the ruling will perhaps be tempered by its unpublished status).

Case citationThomas v. Taco Bell Corp., No. 12-56458, 2014 WL 2959160 (9th Cir. Jul. 2, 2014)

Related posts:

* TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

* Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

* Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

* Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

* Group Text Services Grapple with TCPA Class Actions

* Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

* Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

* Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

* Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

* Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

July 22nd 2014 spam

Lawyer’s Suit Over “Professional Recognition” Spam Flops

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shutterstock_148273682-Say you’re a lawyer and you receive a promotional email intimating that you’re one of the “Top Lawyers in California.” You probably just delete it and move on, right? That would be too easy. Nicholas Bontrager sued Showmark alleging that he believed he received an accolade from a “respected legal association or organization.” The email purported to charge a $159 fee for a plaque memorializing the award. Bontrager never paid the fee because, upon inquiring, he did not receive a response from Showmark, but he did end up wasting his time, bandwidth, and email storage space. He did the logical thing that lawyers do when email wastes their time: he sued Showmark for violating California’s spam statute.

Bontrager alleged that Showmark’s email contained a misleading subject line. Ordinarily, the court says this presents a question of fact, but the court says that the subject line in this case is not misleading. The court contrasts this email with other emails where courts have found subject lines potentially misleading because they insinuated a personal relationship (Tagged; Reunion) or where the subject line leads the recipient to believe that she will get something for free (Member Source; ValueClick).  This is not the case here:

The phrase “Lawyer Media, Top Lawyers in California” indicates that the body of the email will concern top lawyers in California. This is in fact the subject addressed in the body of the email. Although the information contained in the body of the email may have been misleading because it suggested that Bontrager had received a fictitious award, the fictitious award was an award for top lawyers in California. This is exactly the topic identified the subject line. For that reason, no reasonable trial [sic] of fact could conclude that the subject line of the email was misleading.

….

Nothing in the subject line of the email Showmark sent indicated that Bontrager would receive a “Top Lawyer” plaque if he took certain action (e.g., opening the email), while the body of the email required him to take different action to receive it (e.g., paying a fee). Nor did the subject line indicate that the email was from a personal acquaintance, or even from the organization making the fictitious award, rather than a company that manufactures plaques. For these reasons, no reasonable trier of fact could find that the subject line of the email was likely to deceive a reasonable consumer. Bontrager’s § 17529.5(a)(3) claim must therefore be dismissed.

Bontrager’s claims under the false advertising statute and unfair competition laws also fail. He did not pay any money to Showmark, or for that matter to any third party, as a result of the emails. He now knows the true nature of the email, so he’s not entitled to injunctive relief against future misleading emails of this nature. He also fails to allege damages sufficient to confer standing. He failed to allege how his loss of time, bandwidth, and email storage translated into economic losses (e.g., he did not plead that he paid for email storage at work).

Finally, Bontrager alleged negligent misrepresentation, but his allegations on damages fall short on this claim as well. He has to allege that he suffered damages as a result of the misrepresentations. He did not purchase the plaque—in fact, he investigated the award and “determined not only that he had not [won an award], but also that there was no organization that made such awards.” Thus, even if he had purchased a plaque, the purchase would not have been caused by Showmark’s misrepresentations.

Bontrager gets a chance to amend some of the claims, but he’s unlikely to do so for obvious reasons.

__

Ouch. Lawyer-plaintiffs and their often poorly-faring lawsuits are a perennial favorite on the blog. To his credit, Bontrager did not represent himself. [Eric's comment: Bontrager's thrashing in court does suggest that “Lawyer Media, Top Lawyers in California” was, in fact, a dubious claim based on this lawsuit's result. Even if another lawyer represents him/her, a lawyer-in-the-role-of-plaintiff should have known better. I think Venkat and I should send a "Thank You For Demonstrating Your Legal Acumen To Prospective Clients" plaque to future lawyers who get drubbed in court when they become plaintiffs.]

CAN-SPAM litigation has diminished significantly, but as this lawsuit shows, plaintiffs still sue under California’s spam statute. Courts grappled with preemption, but unfortunately they have drawn a murky line at best. When coupled with decisions under California’s spam statute that give an expansive reading of that law, plaintiffs have wiggle room to sue under California’s spam statute.

That said, this is a nice data point for litigation over email subject lines. There’s nothing materially misleading about the subject line in this case, and the court nicely groups the cases where courts have found for the plaintiffs. I suppose the court could have said that, because there’s no award and the recognition is fake, this causes the subject line to be misleading, but the court takes an approach that looks for material accuracy. (It’s similar in this vein to cases such as Mummagraphics that decline to find causes of action based on technical inaccuracies with other aspects of a commercial email.) The court says that the subject line says nothing about the legitimacy of the award. It merely says that the email is about the topic of lawyer recognition…which it, in fact, is. Perhaps the court wasn’t touched by the usual sympathy for a plaintiff because this case involved a lawyer?

Bontrager also argued that the subject line was misleading because it failed to indicate the email was a solicitation, but the court said there’s no such requirement in the statute.

Case citation: Bontrager v. Showmark Media LLC, No. 14-01144 MMM (Ex) (C.D. Cal. June 20, 2014) (h/t Kronenberger Rosenfeld)

Related posts:

Advertiser May Have Claims Against SEO Firm Using Undisclosed Spammy Practices

Court Accepts Narrow View of CAN-SPAM Preemption but Ultimately Dismisses Claims – Davison Design v. Riley

Spam Arrest’s Sender Agreement Fails Because Email Marketer’s Employees Lacked Authority–Spam Arrest v. Replacements (Forbes Cross-Post)

Another Spam Litigation Factory Unravels –- Beyond Systems v. Kraft

Independent Contractor Relationship Between Sender and Advertiser Dooms Spam Claims – Kramer v. NCS

CAN-SPAM Violations For Private WHOIS Information and Putting Disclosures in Remotely Served Images – ZooBuh v. Better Broadcasting

Crazy SOPA-Like Attempt to Hold International Banks Liable for Pharmacy Spam Fails on Jurisdiction Grounds–Unspam v. Chernuk

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Court Refuses to Dismiss Claims Against Alleged Twitter-Bot Spammer–Twitter v. Skootle

Is SOPA’s “Follow the Money” Meme Infecting Anti-Spam Litigation? – Project Honey Pot v. Does

Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation

California Appeals Court Says Emails That Don’t Identify Sender Violate State Spam Statute – Balsam v. Trancos

Old School Spam Plaintiff Rebuffed in the Ninth Circuit

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

Court Dismisses Lawsuit Under Michigan Spam Statute Based on Preemption and Lack of Standing — Hafke v. Rossdale Group, LLC

Spam Claims Covered by Contract’s Indemnity Clause–Commonwealth Marketing Group v. IMG Assocs.

In Facebook’s Lawsuit Against Alleged Spammer, Court Denies MaxBounty’s Motion to Dismiss

Seventh Circuit Awards e360 a Whopping $3 in Damages Against Spamhaus — e360 v. Spamhaus

Court Rejects First Amendment Challenge to CAN-SPAM Indictment — US v. Smallwood

Jury Rejects Lawyer’s Claims Under DC’s Anti-Spam Law — CyberLaw v. Thelaw.net

July 13th 2014 Marketing, spam

Email Harvesting: Repeated Emails From LinkedIn May Violate Publicity Rights

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This is a lawsuit alleging that LinkedIn improperly mined users’ contact lists and sent them repeated invitation emails. While Judge Koh eliminated the Stored Communications Act and California anti-hacking statute claims, a chunk of the lawsuit remains. Harvesting contact lists remains a risky business. (See also Path.)

The court describes the sign-up process for LinkedIn in some detail. Screen Shot 2014-06-17 at 2.36.21 AMUsers who create profiles are offered a chance to “grow [their] network[s] on LinkedIn.” As part of this process, LinkedIn collects a user’s email address, which is pre-populated – a user can skip this step or continue. Users who continue are taken to a page of their email service provider. (The court uses the example of Google, noting that the complaint focused on individuals who used Gmail accounts to sign up for LinkedIn.) Then the user is asked somewhat obliquely if LinkedIn can access the user’s Google contacts. A user who says “allow” then proceeds to the “connect with people you know on LinkedIn screen.” Screen Shot 2014-06-18 at 7.25.03 AMThis page allows a user to connect with people who have LinkedIn accounts, by checking or unchecking boxes next to their accounts. Then comes the next page, which asks innocuously: “why not invite more people”. This page allows a recently signed-up user to invite their friends who don’t have LinkedIn accounts. While the user is given the choice of “adding” users to the network or skipping the step, plaintiffs complained that LinkedIn sent repeated email invites (3 to be exact). Each email contains the name of the user and says the now-familiar “I’d like to add you to my professional network.”

According to plaintiffs, it wasn’t entirely easy to stop this process:

there is no mechanism by which users can withdraw all endorsement emails at once . . . Plaintiffs allege that it would take hours to prevent LinkedIn from sending the repeated endorsement emails to the hundreds or thousands of contacts a user may have.

Plaintiffs alleged claims under the Stored Communications Act, California’s publicity rights statute, Section 502 of the California Criminal Code, and the Unfair Competition Statute.

Standing: The court says that plaintiffs have standing as to the federal statutory claims. As to the remaining claims, the court says that Fraley v. Facebook and Cohen v. Facebook are possibly analogous (one, Fraley, allowed the claims based on Sponsored Stories to move forward, while the court in Cohen rejected the claims as to promotion of the FriendFinder service). The court says this case is “no different from Fraley”:

The Court’s decision in Fraley was premised on the fact that endorsements or invitations from friends or acquaintances are more valuable than generic advertisements that do not contain the recommendation of a familiar or trusted sources. It is this measure or personalization of an endorsement that routinely has a concrete and provable value, as this Court recognized in Fraley and as Judge Seeborg concluded in C.M.D. … In sum, the Court finds that individuals’ names have economic value where those names are used to endorse a product to the individuals’ friends and contacts.

SCA/Wiretap Act: The court addresses LinkedIn’s consent argument and says the key question is whether a reasonable user who viewed LinkedIn’s disclosures would have understood LinkedIn was collecting email addresses. The court says yes, noting that the words “allow” and “no thanks” are presented to the user before the point of collection. Significantly, consent is not buried in a terms of service as it was in the Gmail scanning/advertising case.

Plaintiffs tried to argue that the precise scope of LinkedIn’s collection of emails was unclear, but the court rejects this. It would be clear, the court says, that LinkedIn wants to access a user’s Google contacts . . . i.e., all of them. Plaintiffs also argue that LinkedIn was not clear about its storage practices, but the court says this is irrelevant to consent. The court also rejects plaintiffs’ argument that LinkedIn’s collection of email addresses is contrary to LinkedIn’s own stated policies.

Right of Publicity: As to this claim, the court also agrees that LinkedIn’s disclosures were sufficient to alert users that their names would be attached to emails sent to contacts who were not on LinkedIn. However, the court says that this contsent does not necessarily extend to the second and third emails. Among other reasons, because LinkedIn says “we will not . . . email anyone without your permission,” the court says LinkedIn users may have been led astray.

LinkedIn argued that the alleged harm from the second and third emails would be no different from the first, but the court understandably credits the users’ allegations the repeated emails have more of a deleterious effect on a user’s reputation:

Specifically, the second and third endorsement emails could injure users’ reputations by allowing contacts to think that the users are the types of people who spam their contacts or are unable to take the hint that their contacts do not want to join their LinkedIn network. The reputational harm is magnified by the fact that the only people who receive the second endorsement email are the user’s contacts who chose not to register for LinkedIn upon receipt of the first email. . . . Therefore, individuals who receive second and third email invitations to join LinkedIn after declining one or two previous email invitations to join LinkedIn from the same sender may become annoyed at the sender, which could be professionally or personally harmful. [emphasis added]

Section 502 of California Penal Code: This section has been interpreted to require circumvention of a technical or code-based barrier. Plaintiffs argued that LinkedIn “tunnels through any open email program on a user’s desktop” (i.e., where a LinkedIn user has a Gmail account open on a separate tab, or accesses LinkedIn without having logged out of Gmail, LinkedIn improperly prepopulates the Google account screen where a user is asked whether LinkedIn may access her contact). The court says this does not sufficiently allege circumvention of a code or technical barrier. More importantly, the court says that any alleged harm is undermined by the users’ consent. In practical terms, even if LinkedIn improperly prepopulated the Gmail/LinkedIn page, because the user affirmatively must agree and take an affirmative step before proceeding, a user cannot assert harm.

UCL Claims: Plaintiffs alleged two types of claims under California’s unfair competition statute, those based on misrepresentation and under the unlawful prong. The court dismisses the misrepresentation based claims because plaintiffs failed to allege they actually read and relied on any misrepresentations. As to the UCL claims under the unlawful prong, the court says denial of the motion to dismiss the right of publicity claims necessitates denial of the motion to dismiss these claims as well.

___

Why must social networks abuse our trust so? In a better world, where networks were less careless about respecting user preferences, I could see giving networks access to my contact lists. But the opportunity to demonstrate user trust in that regard has come and gone (and been squandered). (I’m can’t even get comfortable with the idea of using my primary email address when signing up for accounts.)

While we may not necessarily agree with the legal conclusion that the second and third emails should be treated different from the first, it’s tough to deny that these emails are designed solely to benefit LinkedIn. Any reasonable user would send one email at best, encouraging their friends to join a network. On a related note, perhaps the case offers lessons to those looking to implement a refer-a-friend program, and shows the drawbacks of being aggressive with repeated emails, even if you have properly procured consent.

Consent under the Stored Communications Act has not been tested very often. The ruling alludes to the Gmail scanning case where Google unsuccessfully attempted to rely on consent in its terms of service. Judge Koh makes a point of contrasting that, by noting that consent here is obtained much more explicitly. I think there’s still some room to argue that LinkedIn could have made it clearer, but the ruling nevertheless provides some guidance for those who wish to rely on consent in this setting.

Publicity rights have been the sleeper hit for plaintiffs in litigation against social networks.

Another interesting case and a split-the-baby ruling from Judge Koh. Although we may not always agree with her rulings, she’s thorough and her opinions make for interesting reading.

[Disclosure: I own a small number of shares in LinkedIn. Also, Eric is an Influencer on that platform.]

Case citation: Perkins v. LinkedIn, 2014 WL 2751053 (N.D. Cal. June 10, 2014)

Related posts:

Path May Be Liable for Text-Spamming Users’ Contact Lists

Facebook’s “Browsewrap” Enforced Against Kids–EKD v. Facebook

Wiretap Claims Against Gmail Scanning Survive Motion to Dismiss — In re: Google Inc. Gmail Litigation

Court Rules That Kids Can Be Bound By Facebook’s Member Agreement

Facebook Sponsored Stories Settlement Approved – Fraley v. Facebook

Judge Seeborg Rejects Sponsored Stories Settlement For Now — Fraley v. Facebook

Facebook “Sponsored Stories” Publicity Rights Lawsuit Survives Motion to Dismiss–Fraley v. Facebook

Court Blesses Instagram’s Right to Unilaterally Amend Its User Agreement–Rodriguez v. Instagram

Privacy Plaintiffs Lose Because They Didn’t Rely on Apple’s Privacy Representations — In re iPhone App Litigation

June 19th 2014 Marketing, spam

Study Shows How Socialbots Can Infiltrate Twitter, Gain Followers & Influence

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More and more, we are counting on social media to be a reflection of reality. In many ways it has become the world’s focus group, a massive crowd-sourced data mine. News organizations use it to take the pulse of public opinion; Nielsen sells a social TV ratings report; Major League Baseball…



Please visit Marketing Land for the full article.

June 7th 2014 Social Media, spam, Twitter