May 10, 2010
Court Sides with Public Citizen, Allows Criticisms of Telemarketing Investment Bank to Be Posted on Web
After Company Obtained Restraining Order on Web Comments, Federal Judge Ruled Message Board Host Could Not Be Sued
WASHINGTON, D.C. – A website designed to air criticisms of telemarketers should operate freely, and a ban on comments criticizing a Chicago-based investment banking firm should be lifted, a federal judge ruled Thursday.
After reading critical comments about the company on an online message board, the lawyer for Houlihan Smith & Company targeted the website operator with a state court temporary restraining order against the comments. When that order expired on May 7, Houlihan Smith sought a preliminary injunction to continue banning factual comments about the company or any of its employees.
Judge Virginia Kendall in U.S. District Court in the Northern District of Illinois in Chicago ruled that there would be no injunction.
Public Citizen represented Julia Forte, operator of 800notes.com and Whocallsme.com, sites that host online message boards about telemarketers.
“The court made the right decision and upheld the First Amendment rights of people who want to speak out in favor or against a company online,” said Paul Alan Levy, the Public Citizen attorney who argued the case. “Rather than pursue the anonymous posters on the message board, Houlihan Smith targeted the website’s operator in an attempt to muzzle any criticism. The company really should have gone after the Does here.”
Since 2007, roughly 250 messages – many, but not all, unflattering – have been posted on 800notes.com about Houlihan Smith. Houlihan Smith said the comments constituted trademark misappropriation, dilution and right of publicity violations because its name and employees’ names were used in the posts. However, Judge Kendall’s oral opinion rejected the claim that the use of Houlihan Smith’s name as the subject of criticism could be the subject of a trademark claim for which a message board operator can be held responsible. Judge Kendall indicated that she will issue a written opinion soon.
This isn’t the first time Public Citizen has defended Forte. Rather than try to sue the people who post critical comments on the website, companies have attempted to sue Forte for content on her website, even though she does not write any comments on the site herself. Federal law protects Web hosts like Forte from being sued for what the public says on their websites. Moreover, people have a First Amendment right to criticize companies on the Internet.
Houlihan Smith also claimed that Forte embedded information about the company in title tags, meta-data or other code on the Web pages about the company. However, Judge Kendall was familiar with reading Web code from her previous career prosecuting child pornography cases, and recognized that the accusation is false.
L. Steven Platt of the Chicago firm of Arnold & Kadjan is local counsel for Forte.
Public Citizen’s brief may be found at https://www.citizen.org/litigation/forms/cases/getlinkforcase.cfm?cID=604. !!!
The previously banned comments have been restored and can be found at http://800notes.com/Phone.aspx/1-312-499-5900 and http://whocallsme.com/Phone-Number.aspx/3124995900.
Public Citizen is a national, nonprofit public interest organization based in Washington, D.C. For more information, please visit www.citizen.org.