• Chasebanksucks.com:  According to its creators, the site is dedicated to "all those who hate Chase Manhattan Bank, and also to inform others why they should not bank with Chase,"this highly-publicized site features an animated picture of a man repeatedly urinating on the word "Chase." A bulletin board allows customers and ex-employees to gripe about every service Chase provides (as well as an "insider's" prospective on Chase policies).  The site also provides links to news stories about how "Chase's 'right relationship' started with the Nazis during W.W.II" and how "corruption is alive and well at Chase."
   
• AOLsucks.com:  The creator of this site is upset over apparently overzealous censorship, inconsistent service, prevalence of spam and lack of security.  The operator's biggest claim to fame, however, is a series of e-mails sent by AOL employees which threaten legal action at first, and then become very apologetic as AOL begins to realize the public relations fiasco they might create.  Nevertheless, AOL has been one of the most outspoken proponents of shutting down anti-AOL sites.⁵
   
• Dunkindonuts.org:  David Felton of Hartford, Conn., was outraged that his local Dunkin' Donuts store did not carry 1 percent milk, his favorite coffee lightener.  He was also upset that the world's largest doughnut chain did not offer a "decent" low-fat muffin.  Felton's site is among the most prominent of Internet consumer complaint sites, featuring "unhappy tales about coffee, crullers and cinnamon buns."⁶
   
• Starbucked.com:  The Starbucked Web site documents the saga of onetime Starbucks customer Jeremy Dorosin and his fight against Starbucks' corporate greed, all stemming from a defective espresso machine Dorosin purchased.  Dorosin also plugs his book detailing his struggle against Starbucks in addition to maintaining a "Top Ten" list of other companies who have "starbucked" customers.⁷
   
• Untied.com: A mistype of united.com (for those looking for United Airlines) leads to untied.com, a complaint site created by anti-fans of United Airlines.  This site tries to be a clearinghouse for passenger complaints directed at the customer service department at United and publishes all complaint letters (and the few responses from United) for the world to see.
   
• Bally Sucks: Once the target of a federal lawsuit in which the operator was held to be justifiably exercising his free speech rights, this site caters to those bitter customers who find themselves unreasonably bound by Bally Health Clubs' membership contract and policies.  This case is now an often-cited example of the clash between corporate image and First Amendment rights on the Web.
   
• The Nervous Investor:  In explaining how he "lost his shirt with E*TRADE Canada," Lubomyr Prytulak crusades as one who has been "defending investor rights since 1 Jan. 1999." This site consists mostly of personal experiences Prytulak has had in using E*TRADE services and his dissatisfaction with the result.  With all the nervousness of online investors and the susceptibility of stock prices to rumors on the Internet, attorneys for E*TRADE recently sent Prytulak a letter alleging harassment and libel and seeking injunctive relief, damages, costs, and account closure.⁸

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Consumer and Ex-employee E-mail: In addition to the Web, disgruntled consumers and ex-employees may take to e-mail to vent their frustrations and disrupt company operations.

In ways perhaps far more damaging, disgruntled customers have used e-mail to disrupt company operations.  In perhaps one of the largest cases of phantom e-mail, during two weeks in July 1997, some six to twenty million Internet users received what appeared to be unsolicited, promotional e-mail from Samsung Electronics.  Upset over the apparent "spam," thousands sent back angry responses.  This time, they received a nasty cease and desist message, apparently from Samsung's law firm, that said, in part, "Your e-mail name was provided as being suspected of connection to various acts of Internet terrorism.  Your acts are illegal." Not surprisingly, Samsung received an even angrier and more voluminous response (as many as 10,000 e-mails a day).  Samsung estimated that the damages from the incident reached into the millions of dollars.  However, none of the offending messages originated with Samsung or its representatives.  They were, apparently, the work of a single dissatisfied customer.⁹

Ex employees have also used e-mail to disrupt company operations.  In Intel Corp. v. Hamidi¹⁰, a California judge recently granted Intel summary judgment and a permanent injunction in its trespass suit against a former employee.  Intel sued the former employee in 1998, alleging that he illegally accessed the company's e-mail system, sending more than 30,000 messages stating that the company is unfair and abusive to Intel employees.  The court noted that "the evidence establishes (without dispute) that Intel has been injured by diminished employee productivity" and in devoting resources to blocking the e-mails.¹¹

Political Web Sites Targeting Companies:  In addition to disgruntled consumers and employees, companies may face Web sites sponsored by environmental or other activist groups seeking to promote their political causes.  There are many examples of these types of Web sites.

• Homedepotsucks.com:  Depicting a Home Depot employee with a skull for a head, this site is run by the Action Resource Center and the Rainforest Relief and Living Jungle Alliance.  The groups claim that Home Depot is the "largest retailer of old growth rainforest wood in the U.S.  As countless forests and indigenous peoples continue to face death and annihilation, Home Depot only responds with PR spins and broken promises." This site also fields general customer complaints that have nothing to do with old growth lumber; many contributors tell unverified stories of managers killing birds trapped in the store, bitterness over getting fired from Home Depot, and anger over Home Depot running smaller stores out of business.¹²  Home Depot's director of community affairs and environment programs strongly disagrees, noting that "[i]t's just not true," and that she "respect[s] the right to freedom of speech," but not when it involves false and misleading information.¹³  The company has tried to counter the charges through its Web page by highlighting their strong commitment to environmental programs and policies such as recycling, "green" products, and consumer education on the environment.
   
• McSpotlight: With over sixty volunteers in several countries, 21,000 files, and a server in the Netherlands and mirror sites in the U.S., New Zealand and Australia, this fancy Web site and the organization responsible for this site, McInformation Network, were recently the subject of a lawsuit--nicknamed "McLibel" by the group--by McDonald's in the United Kingdom.  McDonald's won $94,000 in damages for libel, after having spent $16 million on the case.¹⁴  This site charges McDonald's with: 1) the connection between multinational companies like McDonald's, cash crops and starvation in the third world; 2) the responsibility of corporations such as McDonald's for damage to the environment, including destruction of rainforests; 3) the wasteful and harmful effects of the mountains of packaging used by McDonald's and other companies; 4) McDonald's promotion and sale of food with a low fiber, high fat, saturated fat, sodium and sugar content, and the links between a diet of this type and the major degenerative diseases in western society, including heart disease and cancer.; McDonald's exploitation of children by its use of advertisements and gimmicks to sell unhealthy products; 5) the barbaric way that animals are reared and slaughtered to supply products for McDonald's; and finally, 6) the lousy conditions that workers in the catering industry are forced to work under, and the low wages paid by McDonald's, and McDonald's hostility towards trade unions.

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Competitor Sponsored Sites:  Some "complaint" sites may not be run by disgruntled customers or employees, but by a competing company or its employees.  For example, in a federal suit filed in Michigan in 1998, Amway alleged that Procter & Gamble "has been a behind-the-scenes sponsor of a rogue Web site...that foments hate rhetoric about Amway."¹⁵  In addition to the standard array of negative news clippings and personal testimonials, the site "Amway: The Untold Story"¹⁶ apparently published some sensitive internal documents.  Proctor & Gamble acknowledged it supplied some material to the creator of the site but says the documents were public and that it acted legally.¹⁷  The veracity of Amway's claims has yet to be tested in court, but the case serves as a reminder that companies must make sure that its own Web site does not libel or infringe upon the rights of its competitors.

Personal Revenge Sites Against Employees:  William A. Sheehan III, a Seattle-area man who believed his credit had been unfairly damaged by several rating agencies--including TransUnion, Experian, CBI/Equifax and SCA Credit--retaliated against some of the companies' employees and attorneys by posting family information such as names, birthdates, social security numbers, home addresses and maps to their homes on his Web site.¹⁸  Fearful the information might get into the hands of a stalker, the companies asked a judge in Seattle to close the site.¹⁹ But even though Sheehan called the employees "scumbags" and worse, he didn't advocate hurting them, so the judge let him keep the site.  However, the court later dismissed Sheehan's lawsuits against the credit agencies because of Sheehan's "bad faith and abuse of judicial process" in disparaging the credit agency attorneys on his Web site, which the court noted was "clearly presented as an invitation for others to harass, threaten, or even attack these people."²⁰

Disgruntled Employee Web Sites:  Many of the "complaint" Web sites contain forums for disgruntled current and ex-employees.  The walmartsucks.com, chasebanksucks.com and bestbye.com sites are three of the more popular among such employees.  Most employee complaints seem to revolve around poor treatment of lower-ranking employees by management. While rooted in some element of truth, many complaints are one-sided, exaggerated, and sometimes outright false.  Nevertheless, when an anti-company Web site is setup by existing employees, employers must be aware that taking action against the site could violate labor laws. If a site discusses company policies and invites other employees to comment, then it can be considered "concerted activity" and is protected by the National Labor Relations Act (NLRA).²¹ In short, where the company does not sponsor the Web site or host it on company servers, there is may be little the company can do to shut down employee forums.  As discussed infra, however, companies can pursue employees and non-employees who the company believes are revealing confidential information and spreading false rumors.

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III.   BUSINESS IMPACTS FROM CUSTOMER "COMPLAINT" WEB
       SITES

Consumers often search the Web for opinions and experiences with products and services.  Although it is difficult to quantify the impacts from customer "complaint" sites, there are now a few examples of business losses attributable to such sites.

In 1996, EPS Technologies, an $80-million computer manufacturer in Omaha which sold PCs through its 800 number, blamed significant revenue loss on four "complaint" sites hammering its service.  The first site was created by a customer who was frustrated by a month-long delay in receiving a laptop.  Though EPS offered him a refund, he insisted on additional compensation for his inconvenience.  When the company refused, the customer threatened a negative Web site.  The site went up, but EPS Technologies did not realize the site was built with metatags--special Web-search markers--that brought the negative site up ahead of EPS Technologies' own site on search engines.  Cyber-customers who searched the Web to learn more about the company instead read a scathing indictment of EPS Technologies. "People called up and said they were canceling orders because of it," EPS Technologies president Ed Kieler said. "We have to assume some others simply never called in the first place." All told, EPS lost hundreds of orders, he added.  In 1997, EPS Technologies went out of business for reasons unknown.²²

A large company generally has the resources to fight online rumors by hiring a public relations firm.  For example, in 1996 rumors spread on the Web that Mrs. Fields Cookies planned to donate cookies to the O.J. Simpson victory party.  Threatened with a national boycott, Mrs. Fields Cookies quickly hired an online firm to fight the rumors, which eventually died down as a result.²³

While the "complaint" sites or rumors may be only a nuisance or irritant to large corporations, they can be more devastating to smaller companies.  In 1998, David Holker hired two Web site designers to help him develop a Web page for his company, Express Success Inc., a multilevel marketing company that sold car products.  After a billing dispute, the designers created expresssuccesssucks.com, a site where they "called Express Success a 'scam,' pictured Holker in prison clothing, and posted an advertisement for one of his biggest competitors."²⁴ Holker claims the attack drove his revenues down from $60,000 monthly to nearly zero, since many of his clients came from the Internet.  Claiming defamation, among other things, Holker sued the Web site designers.  His efforts to shut it down failed, but he's still seeking money damages.


IV.   LEGAL STRATEGIES FOR CUSTOMER "COMPLAINT" SITES

While some companies have tried to silence their cybercritics using legal force, the results have been mixed.  In many cases, however, the mere threat of legal action is enough to scare a Web site operator into submission.  By the same toke, the company must keep in mind that threats of legal action will generally be highlighted and portrayed poorly on the complaint site.²⁵

Web site operators argue that they have a constitutionally protected right to preach their message.  Unless the content is libelous it is protected by the First Amendment.  In addition, trademark infringement and dilution claims may be ineffective if the complaint site is clearly unofficial, non-commercial, and unlikely to confuse consumers.²⁶   In addition, any legal action that a company threatens may draws more attention to the complaint site.  In short, legal action may be more appropriate for extreme cases, i.e., a clear case of libel or trademark infringement or dilution.
 

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1. Common Law Defamation and the First Amendment Defense

When challenged, the vast majority of "complaint" Web site operators claim their conduct is protected under the First Amendment, which guarantees freedom of speech.  Accordingly, many complaint Web sites on the Internet contain a disclaimer similar to the one on www.bestbye.com (link to https://www.bestbye.com/legal.html), an anti-Best Buy site:

"This site is classified as a non-commercial, non-profit consumer advocacy site, which is permissible via the First Amendment to the US Constitution; specifically, the freedom of speech/expression.  It provides a forum for the general populous to voice their opinions and experiences regarding the subject matter at hand. The operator assumes no liability for the actions or statements of the posting party(s)."

Because the standards for a state defamation claim are very high, many "complaint" Web sites may not constitute libel.  A defamation claim generally "requires the plaintiff to demonstrate the existence of a defamatory statement about the plaintiff that is 'published' by the defendant with malice."²⁷ Nevertheless, operating under the flag of "consumer advocacy" and "public opinion," such sites are very difficult to attack using libel laws for three main reasons:²⁸

First, as a general rule, companies cannot sue for libel –called "trade libel" or "product disparagement" – unless they can show actual damages, such as monetary losses resulting from the false statement.  In the many cases, however, companies are seeking to shut down "complaint" sites before any damage is done or damages are speculative.  While perhaps a prudent strategy, trade libel may not apply.

Second, those individuals²⁹ within a company who are singled out for criticism are usually considered "pervasive public figures" or "limited-purpose public figures," meaning that by merely "being" a notable figure within a company (i.e. Bill Gates) or at least engaging in the transaction giving rise to the criticism (i.e., setting a corporate policy or selling a certain product), such individuals have invited public scrutiny and exposure.³⁰  As a result, the standard for libel rises to the level of "actual malice," meaning that the false statement must have been made "with knowledge that it was false or with reckless disregard of whether it was false or not."³¹  This "reckless disregard" standard usually makes it extremely difficult to prove actual malice³² since the Supreme Court has held that a statement need only be "substantially true,"³³ meaning that the overall nature of the statement is true, but not necessarily entirely true.³⁴ Although the standard for libel drops to a mere negligence if the plaintiff is a private figure, it is difficult to imagine a "complaint" site singling out an individual without also mentioning some act within the corporation to which the individual is linked.

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On many Web site providers like Yahoo!/Geocities or AOL,³⁵ the Web site creator can hide behind a cloak of anonymity.  This anonymity is often guaranteed in the host's privacy policy, primarily to assure users that their personal information will not be divulged to Internet marketers.  Because of the anonymity, however, companies have considered pursuing a libel action against the parties responsible for hosting the site.

After the enactment of the Communications Decency Act (CDA) of 1996, however, ISPs and discussion group hosts no longer have an incentive to monitor the content on its servers for defamatory material.  Although much of the CDA was struck down as unconstitutional, 47 U.S.C. §230(1) remained.  It provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."³⁶  Congress noted as its express purpose in enacting §230 the intent to allow ISPs to exercise editorial discretion without fear of publisher liability.³⁷

The immunity provision faced its first major test in Zeran v. America Online.³⁸  In Zeran, an anonymous subscriber repeatedly posted allegedly defamatory statements about Zeran to an AOL bulletin board.  In attempting to hold AOL liable, Zeran argued that §230 did not bar his action because once he notified the service of the first message, it had knowledge of the defamatory statement and had a duty to remove the posting promptly and notify its members of the falsity of the statement.  Zeran argued that §230 only immunized "publishers;" he claimed that AOL was a "distributor" for purposes of defamation law.  The court, however, held that §230 did indeed immunize AOL against liability for defamatory statements of content providers.

Despite §230, however, as a matter of policy most Web hosts and ISPs will block any defamatory or abusive material of which they are made aware.³⁹  Furthermore, Web hosts and ISPs will often divulge an anonymous user's identity to companies who threaten legal action.  For example, Raytheon, in the libel case discussed infra, "had a relatively easy time"⁴⁰ obtaining orders that Yahoo! reveal the identities of the chatters, despite a privacy policy that emphasizes that Yahoo! is "committed to safeguarding your privacy online."⁴¹  Specifically, Yahoo! has included a disclaimer for its Business & Finance discussion boards, noting that "under special circumstances, such as to comply with subpoenas and other legal obligations, Yahoo! may provide personally identifiable information which may include IP addresses."⁴²  Ultimately, Raytheon dropped the case when four employees implicated in the discussion board resigned,⁴³ including a Raytheon vice president, Mark Neuhausen, who allegedly posted confidential information under the alias "RSCDeepThroat."⁴⁴
 

2. Trademark infringement, trademark dilution, copyright infringement and unfair competition under Federal law.

Trademark rights are one of the biggest concerns of any company trying to protect its name and trademarks on the Internet from cybercomplainers.  Most cybercomplainers use the company name in their domain name or plaster their sites with a company's name and/or logo--often doctoring the logo to spell crude names.  In fact, "[m]ore than 80 percent of Fortune 1000 companies are victims of some type of trademark misuse on the Internet" according to Cyveillance, a company that monitors online abuse for corporate clients.⁴⁵  However, in pursuing a "complaint" site, a standard trademark infringement claim requires confusion on the part of the consumer, implying that infringement claims only work where the alleged infringer is engaged in commercial conduct.

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