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Consumer Group Helps Citizen Control Legal Pest

Dec. 3, 1999

Consumer Group Helps Citizen Control Legal Pest

California Homeowner Battles Terminix Over Web Site

WASHINGTON, D.C. — A homeowner who lost thousands of dollars because of a home inspection she found shoddy has a First Amendment right to post her story — and the complaints of other homeowners — on the World Wide Web, Public Citizen said in court documents filed this week.

The case, which could define the parameters of consumers’ free speech rights as they pertain to the Web, stems from an experience that Carla Virga, a 50-year-old secretary who lives in Yuba City, Calif., had with the pest control company Terminix. Virga received a “clear” report for a home she purchased with her husband; however, the company overlooked numerous problems. Virga sued and lost; Terminix then collected a monetary award against Virga that drove her into bankruptcy.

Wanting to share her experiences and warn other consumers about Terminix, Virga started a Web site. The site includes information from many consumers as well as a compendium of information about Terminix complaints in 50 states.

In October, Terminix, its corporate parent ServiceMaster and several corporate affiliates sued Virga to force her to remove all references to Terminix and ServiceMaster from her Web site. The suit also seeks millions of dollars in damages. Without contending that anything on her Web site is false, the companies allege in the suit that Virga violates their trademark rights every time she refers to them by name on the Web site. Public Citizen has asked the judge to dismiss the suit because it violates Ms. Virga’s First Amendment rights.

The companies also claim that Virga should not be permitted to use their names in the Web site’s “metatags” — identifiers that enable consumers who are looking for information about the companies to use Internet search engines to locate Virga’s criticisms. Relying on cases in which companies have been prevented from using competitors’ trademarks to siphon Internet traffic to their own commercial Web sites, the Terminix companies argue that consumers who create Web sites should also be prevented from publicizing their views by using metatags. This is an unacceptable position, Public Citizen argues in its court filing.

“Ordering the removal of the references to Terminix and ServiceMaster from Ms. Virga’s Web site would be like giving a consumer the freedom to pass out leaflets expressing her objections to Terminix but only from her front lawn where almost nobody will see them,” said Paul Alan Levy, Public Citizen’s lead counsel in the case.

“Members of the public have been able to make effective use of the Internet to bring their problems with big companies to a broader audience,” Levy said. “If this suit were successful, either by securing a legal ruling against Ms. Virga or by driving her off the Web by the threat of ruinous litigation, Terminix could both set a dangerous precedent for other consumers and insulate itself from effective criticism on the Internet. We hope that the judge will uphold Ms. Virga’s First Amendment rights and thereby protect the rights of all citizens.”

Terminix earlier sued Virga in California for defamation but lost (the suit was thrown out of court). This latest suit was filed in Memphis, Tenn., where Terminix is headquartered. Public Citizen believes that the companies hoped to suppress Virga’s speech by the mere prospect of having to defend herself 2,000 miles away from home. Public Citizen got involved when contacted by Virga and is representing her pro bono with the assistance of volunteer lawyers from Memphis and Nashville.
Those lawyers include Lucian T. Pera and Brian S. Faughnan of the Memphis firm of Armstrong Allen Prewitt Gentry Johnston & Holmes, and Thor Y. Urness, a trademark and Internet lawyer with the Nashville firm of Boult, Cummings, Conners & Berry.