Last Revised July 30, 2010
Please read this information carefully before filing a lawsuit against ScrewedByForums.
Occasionally, ScrewedByForums receives notices from companies or individuals who feel that false or inaccurate information about them has been posted on this site. Sometimes we receive letters from attorneys with similar allegations. These people sometimes threaten to sue ScrewedByForums for defamation and other claims unless the statements they do not like are removed.
If you are considering sending us a notice or demand (or if you have already done so), this page is intended to provide you with information that may help you to better understand the situation and your rights, as well as the rights of the people who post reports here. You need to understand that threats against ScrewedByForums are not effective, nor will they result in the removal of any reports.
Our Policy: Why We NEVER Remove Posted Reports
From our inception, ScrewedByForums policy has always been the same – we never remove reports. We will not remove posted reports even when they are claimed to contain defamatory statements and even if the original author requests it. Some people might criticize this policy as being unfair, but we deeply believe this policy is essential, fair, and infinitely better than the alternative – rampant censorship.
We have simple reasons for this policy. First, this site is most effective when all complaints are maintained and preserved so that over time patterns of business practices that regularly fall short of consumer expectation are exposed. If we removed reports after a certain period of time, this would provide consumers with less information to use when evaluating a company. We maintain a permanent record of all complaints, unlike the Better Business Bureau, which deletes complaints after just 36 months. This ensures that our users have more information rather than less.
Second, if we removed complaints on request this would give companies an incentive to pressure authors to remove true and accurate reports in exchange for money or simply to avoid a costly lawsuit. Most people aren't willing or able to spend huge sums of money in legal fees defending a defamation lawsuit, so even when a person has written a 100% true report, there is a huge amount of pressure for them to just remove it when threatened with legal action.
For that reason, we will never agree to remove reports, even if someone can show that a report is probably inaccurate. By having this policy, we take leverage away from companies who threaten or pressure a customer hoping to get them to retract a valid complaint. Even if this means that one or more questionable reports are left up, we think that removal of any reports would ultimately make this site less credible and thus less effective as a tool for educating consumers. That's why we have made this strict policy decision.
The Law You Need To Know - The Communications Decency Act
If you are considering suing ScrewedByForums because of a report which you claim is defamatory, you should be aware of a federal law called the Communications Decency Act or "CDA", 47 U.S.C. § 230. Because this important law is not well known, we want to take a moment to explain the law, and to also explain that the filing of frivolous lawsuits can have serious consequences for those who file them, both parties and their attorneys.
The CDA is part of our federal laws. An excellent Wikipedia article discussing the history of the law can be found here.
In short, the CDA provides that when a user writes and posts material on an “interactive website” such as ScrewedByForums, the site itself cannot, in most cases, be held legally responsible for the posted material. Specifically, 47 U.S.C. § 230(c)(1) states, "No 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."
Because the posts and reports on ScrewedByForums are authored by users of the site, we cannot be legally regarded as the "publisher or speaker" of the post or reports contained here, and hence we are not liable for reports even if they contain false or inaccurate information. The same law applies to sites like FaceBook, MySpace, and CraigsList – users who post information on these sites are responsible for what they write, but the operators of the sites are not.
The CDA exists because websites cannot possibly monitor the accuracy of the huge volume of information which their users may choose to post. If an angry plaintiff were permitted to hold a website liable for information that the site did not create, this would stifle free speech as fewer and fewer sites would be willing to permit users to post anything at all. See generally Batzel v. Smith, 333 F.3d 1018, 1027-28 (9th Cir. 2003) (recognizing, "Making interactive computer services and their users liable for the speech of third parties would severely restrict the information available on the Internet. Section 230 [of the CDA] therefore sought to prevent lawsuits from shutting down websites and other services on the Internet.")
Here is why the CDA is important to you -- if someone posts false information about you on ScrewedByForums, the CDA prohibits you from holding us liable for the statements which others have written. You can always sue the author if you want, but you can't sue ScrewedByForums just because we provide a forum for speech.
But what if the original author asks us to remove a report? Why doesn't ScrewedByForums have to take a report down when the author requests this?
There are many reasons why ScrewedByForums does not remove reports even if the original author has asked us to do so. First of all, if someone contacts us and claims to be the author of a post, we have no way of knowing whether they really are the author.
Second, as a matter of policy, ScrewedByForums does not want big companies to bully individuals into asking us to remove their truthful reports. To prevent this, we simply will not agree to remove reports, ever, thus eliminating that incentive.
You are not powerless. There are MANY ways to respond!
Just because ScrewedByForums won't remove reports does not mean you have no options. On the contrary, you can post a rebuttal explaining your position. Rebuttals can be extremely effective. If you are a business owner and you discover that the report was written by an unhappy customer, do not despair. You can turn that negative into a positive. Use the complaint as an opportunity to make things right with your customer, and ask the customer to submit an update confirming that their concern has been satisfactorily resolved. Even if the customer won't submit an update, you can write a rebuttal stating what you have done to make things right. As we often say, every business will receive complaints. Customers know that. Having a complaint does not mean your company is bad. It is the manner in which you choose to deal with your customers that will have the biggest impact on your reputation, so treat every complaint as an opportunity to show customers that you DO care about treating them well even when things go wrong. Of course, if you don't care about making things right with your customers, that's something the public has a right to know.
If you think a report is fake and/or written by a competitor, feel free to say so in your rebuttal post. Your rebuttal can also demand that the customer post some form of proof to back up their story. If the customer fails to do so, that will speak volumes about their credibility (or lack thereof).
Whether or not you choose to post a rebuttal, under the CDA you cannot hold ScrewedByForums legally responsible for material written by third parties. To be clear, all of the reports and rebuttals on the ScrewedByForums have been authored by our users, not by us. No employee or agent of ScrewedByForums has posted any content on ScrewedByForums about a company. Also, ScrewedByForums does not create the titles or headings of the reports. The titles are written by the author of the report. You can easily confirm this by following the steps on this site for submitting a report. You will see that as part of the process, the submitter constructs the title, not us.
Answers To Frequently Asked Questions
What can I do if I believe there's a false report about me on this site?
As explained above, one thing you can't do is sue ScrewedByForums. The law just does not allow this. You can always sue the person who wrote the report if it contains false and defamatory information about you. Of course, you should talk to an experienced lawyer in your area if you are unsure about your options.
If you find that a complaint has been posted against you, the best thing you can do is to post a rebuttal. Don't get mad, and don't make threats. Get creative. Explain your side of the story. Explain what your company has done (or is willing to do) to make things right.
If the customer is simply wrong, say so! If you think a report is phony, demand that the customer provide proof that they actually did business with you (by posting a copy of a receipt, etc.)
Post the names and contact information for favorable references who can testify to the high quality of your business. Provide a summary of any awards your company has won. Offer a link to any outside resources which provide positive information about you and your business.
Ultimately, there are countless ways you can take a negative complaint and turn it around into a positive advertisement for your company. As we ALWAYS say: every company, good or bad, will receive complaints. The fact that you have received a complaint is NOT what consumers care about -- it's how you handle the complaint that matters.
If I get the original author of a report to send a retraction demand, will ScrewedByForums remove the complaint post?
We are ALWAYS happy to hear that a dispute has been resolved! If you reach an agreement to resolve a complaint and the original author is willing to retract his/her original complaint post, they can easily post the retraction as an update to their original report.
This will let the world know that the matter has been handled to the customer's satisfaction. We are always happy to hear about parties resolving their disputes amicably and we encourage authors to post updates any time their complaints have been satisfied.
However, we cannot and will not consider removal requests from anyone, including a request which claims to be from the original author of a report. The reasons for this are explained above, but to summarize them again, we cannot determine which side to a dispute is telling the truth. Although our Conditions of Use prohibit users from posting false information, we simply cannot serve as the judge or jury in disputes between two parties. Likewise, if we receive an email from someone claiming to be the author of a report and asking that it be removed, we have no way of knowing if this request is really from the original author, nor do we know if the request is seeking the removal of truthful information solely because of a threat from the person listed in the report.
ScrewedByForums does not remove reports, even when the original author asks us to. Assuming the report is true, the public has an absolute right to know about it, and companies have no right to threaten authors in order to hide their bad track record from the public.
My lawyer says you have to remove false information upon demand, is that true?
No. Under the CDA, ScrewedByForums is not liable for the accuracy of statements posted by the users of the site. Therefore, we are not required to remove reports even upon demand.
My lawyer says ScrewedByForums has to verify complaints before they are posted and I can sue if you don't, is that true?
In the case of major media sources, (i.e., newspapers, etc.), this is generally true; stories must pass through some reasonable level of fact-checking and if they don't, the author and publishers might be liable for any mistakes they make.
The ScrewedByForums is not a newspaper or TV news program. Those kinds of media have the power, the ability, and therefore the duty to fact-check their stories before they are posted. As to these kinds of mainstream media sources, the law generally does impose some responsibility upon reporters and newspapers to check their stories before publishing them.
This logic works for large, for-profit newspapers, magazines, etc., but it does not translate well for free, user-controlled websites like ScrewedByForums which receives thousands of submissions per day, 24 hours a day, 7 days a week, 365 days a year. If ScrewedByForums was required to fact-check every report submitted by every user, the site would immediately cease to exist. While some unscrupulous businesses might applaud this, such a reduction in the amount of free speech available online is so un-American that our Congress enacted the CDA to prevent this result.
Someone posted a report which violates ScrewedByForums's Conditions of Use. Will you remove it?
No. As explained on this page, although our Conditions of Use prohibit users from posting false information, we simply cannot serve as the judge or jury in disputes between two parties. If you contact us and demand that we remove information because you contend that it's false and therefore a violation of our Conditions of Use, we have no way to determine if this is true, or if the information is really accurate. These issues are between you and the author of the post and must be determined in court, not by us.
In some cases, if a report contains private information such as a social security number, bank account details/passwords, or threats of violence, we will attempt to redact such material before a report is posted when it is clear that the material is prohibited by our Conditions of Use. If such information accidentally gets into a published report, please contact us and we will remove the information only if we deem such removal as appropriate.
However, if a report contains information which you allege is false, the staff of ScrewedByForums cannot simply remove information based on your request because doing so would place us in a position of having to determine which side is telling the truth. Because we cannot make such determinations, if you allege that a report contains false and defamatory statements, you should pursue legal action against the author if you determine such action is warranted.
Someone posted a report which used my trademarks in the title or metatags. Isn't this illegal?
The simple answer is generally NO; using a trademark in a metatag relating to a consumer complaint about the trademark holder is not illegal. However, this area of law is subject to a great deal of confusion, so here are some helpful points you should know.
First, trademark law is a highly specialized area of law which is complicated to say the least. A complete explanation of both federal (Lanham Act) and common-law trademark rules is beyond the scope of this site, but you can get some helpful background information on Wikipedia's trademark law page here.
Second, regardless of what particular aspect of trademark law you're dealing with (trademark infringement, trademark dilution, unfair competition, etc.), there is a general requirement that must be present before trademark law will apply — the person who is [mis]using your mark must be a competitor of yours. See Procter & Gamble Company v. Amway Corporation, 242 F.3d 539, 560 (5th Cir. 2001). When someone is NOT your competitor, it is generally not a violation of trademark law for them to say disparaging things about you even if they use your name or other trademarks in the process.
One of the best examples of this is a recent decision called Bosley Medical Institute, Inc. v. Kremer, 403 F.3d 672 (9th Cir. 2005). The basic story of the case goes like this: Bosley Medical offers hair restoration services for balding men. Mr. Kremer was an unhappy former customer who sued Bosley for medical malpractice and lost.
Not content with that outcome, Mr. Kremer started a website called www.bosleymedical.com which he filled with statements harshly criticizing Bosley's business. When the company found out about the website, it sued Mr. Kremer for, among other things, trademark infringement because the site was using Bosley Medical's trademarks.
The Ninth Circuit rejected Bosley's claims, holding that because Kremer and Bosley were not competitors, trademark law simply did not apply to the case:
"The dangers that the Lanham Act was designed to address are simply not at issue in this case. The Lanham Act, expressly enacted to be applied in commercial contexts, does not prohibit all unauthorized uses of a trademark. Kremer's use of the Bosley Medical mark simply cannot mislead consumers into buying a competing product - no customer will mistakenly purchase a hair replacement service from Kremer under the belief that the service is being offered by Bosley. Neither is Kremer capitalizing on the good will Bosley has created in its mark. Any harm to Bosley arises not from a competitor's sale of a similar product under Bosley's mark, but from Kremer's criticism of their services. Bosley cannot use the Lanham Act either as a shield from Kremer's criticism, or as a sword to shut Kremer up."
Based on the Ninth Circuit's decision in Bosley, unless you operate a business which competes directly with ScrewedByForums, and unless a significant number of people viewing the ScrewedByForums website would believe that they were actually viewing your website rather than a web forum, then trademark law simply does not apply to prevent the use of trademarks in connection with reports posted on the website.
The same is true of metatags. In case you don't know, metatags are just a series of words (usually keywords) which you cannot see but which are included in the HTML code for most web pages. These tags are used for indexing purposes by search engines such as Google, Yahoo and Bing.
When a person creates a post on ScrewedByForums, our software automatically converts the title of the report into metatags based on what the user entered into the title creation form. So, if you created a report about "Acme Corporation" located in "Miami, Florida", these words would be included as metatags so that search engines will accurately index the contents of that page. This isn't a violation of Acme's trademark rights.
It is common misconception that a trademarked term (i.e., Coca-Cola; McDonald's, Budweiser, etc.) cannot be used in a metatag without the trademark owner's permission. This can be true in some cases, but the mere fact that a trademark is used in a metatag is not per se unlawful; "the mere fact that [a defendant] uses [a plaintiff's] marks in the metatags of its sites and as search-engine keywords does not result in initial interest confusion. [The plaintiff] must show that these uses are deceptive." Designer Skin, L.L.C. v. S & L Vitamins, Inc., ____ F.Supp.2d ____, 2008 WL 2116646 (D.Ariz. 2008). Again, if a trademark is used in a way that cannot confuse viewers or mislead them into purchasing a product from Company A when they believed they were dealing with Company B, then trademark law generally does not apply to this situation.
Because of this, when a post appears on ScrewedByForums and it contains a third party's trademark in either the title, text of the report, or in metatags, this is not a violation of trademark law because no consumer viewing the site will be confused about the fact that they are not looking at the trademark owner's webpage. Absent such competitive harm, trademark law is not concerned with preventing the use of trademarks for purposes such as criticism, discussion, and other acts of free speech.
If I file a lawsuit against ScrewedByForums, will that get my complaint removed?
No. ScrewedByForums is not liable for statements posted by a third party, so it will not remove complaints even if you sue.
Filing a lawsuit will, however, guarantee the removal of one thing -- a LOT of money from your business into an attorney's pocket.
I Know the CDA Protects ScrewedByForums, But I Am Going to Sue Anyway!
If you have read all of the above information and still want to file a lawsuit against us, there are some other points you need to know.
First, Rule 11 of the Federal Rules of Civil Procedure, and each state court's rules, generally require that all pleadings, including initial Complaints, must be presented in good faith, after a reasonable investigation into the facts and the law, and not made for an improper purpose such as harassment. What this means in plain English is that if you file a lawsuit which you know contains false claims, or if you sue without first conducting a reasonable investigation as to the law as it may pertain to the facts of your case (such as determining the identity of the author of the post(s) you are concerned about), you and/or your attorney can be subject to serious sanctions at the judge's discretion.
In addition to penalties a judge may issue, those who would threaten us need to be aware of another law which imposes civil liability on anyone who files a frivolous lawsuit. This claim is known as "wrongful use of civil proceedings" and it is defined by § 674 of the Restatement (Second) of Torts as follows:
(a) he who acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and
(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.
Because ScrewedByForums is immune from liability under the CDA for defamation-based and related claims, any suit that seeks to impose liability for the speech of our users is, by definition, an action brought "without probable cause". We encourage the prompt and fair resolution of disputes between ScrewedByForums authors and those who are the subject of those disputes. However, ScrewedByForums wants to be clear that it accepts no liability for the speech of its users, and it will vigorously defend any litigation brought against us which seeks to circumvent the CDA. In addition, any suit filed against us without probable cause may subject the complaining party and/or their attorneys to liability in the State of New York for wrongful use of civil proceedings. We don't mean to sound harsh, but if you knowingly file a frivolous lawsuit against us, regardless of where your case is filed, you and/or your lawyers can be subject to a lawsuit in New York in which a jury could, if appropriate, award both substantial compensatory and punitive damages against you.
Finally, you need to be aware that if you file a lawsuit simply to harass us, not only will this not work, it will very likely end up being EXTREMELY expensive for you. ScrewedByForums has a very strict policy about lawsuits -- once ScrewedByForums is forced to appear in a case, it will not stipulate to a dismissal of the case unless the party who filed the action agrees to pay ScrewedByForums's attorney fees. There will be no exceptions. If you conduct a thorough investigation BEFORE you sue and you believe you have a valid case despite the CDA, it is your right to pursue your case and prove it in court. However, once you file a lawsuit, be prepared to either take it all the way to a decision on the merits or pay ScrewedByForums's attorney fees because ScrewedByForums will not stipulate to a dismissal without compensation.