But due to recent events, I decided I wanted clearer answers than a bit of Googling could provide. So I reached out to Davis, attorney and founder of Sexquire. Davis was kind enough to answer all my questions — and surprisingly, her answers made me feel way better about continuing to massacre the products I hate… freely and without fear.
Read on to find out what Davis has to say about defamation vs. opinion, red flags, whether an email exchange is a binding contract, what to do if someone threatens to sue you over a review, and whether it’s a good idea to blog publicly about bad experiences with companies.
Small disclaimer: we are only talking about US law, as some other countries have far more conservative slander and libel laws. Also, defamation, SLAPP (strategic litigation against public participation), privacy laws, and reporter shield laws vary from state to state, but freedom of speech and copyright issues are federal.
Legal issues related to blogging are still difficult to parse, right? What do we know, especially about the law surrounding online reviews?
The world of blogging is such a conundrum because there has been very little actual litigation we can look to and say “oh, this is how judges react to this” (which is how you basically guess whether a legal case will actual have merit, since people CAN sue about ANYTHING, but the actual question is “will this have any merit or will a judge laugh it out of court?”).
There are a lot of good cases and literature related to bloggers accepting free stuff to review and not making that public (basically like a “paid advertisement” header in a magazine). This is somewhat helpful because it at least gives us an idea of how the courts will view bloggers. Are they journalists or aren’t they?
Speaking of that, tell me more about the FTC guidelines. I think a lot of reviewers are still confused about what they mean.
Many courts have said that bloggers should be held to the same ethical standards as journalists, and cannot ethically accept free things (even for review) in exchange for a good review without disclosing it. There has been some back and forth where courts have said no, they’re not like journalists, but those were really isolated cases, and not really related to reviews for product.
If I were counseling a blogger I would say err on the side of caution… be on the up and up about things you receive for free in your reviews and never ever hint or imply that you’ll give good review in exchange for receiving a free sample of something.
What are some red flags bloggers should look out for when dealing with companies sending them products? Is there anything that sex toy reviewers in particular need to consider?
Watch out for companies who have a lot of “okay you can have this BUT…” This is a red flag that they aren’t used to providing product for reviews and therefore likely aren’t aware that just because they gave the blogger something free that doesn’t mean they are going to get a glowing review. Watch for companies that will ask you what other products you’ve reviewed, or those that want to look over the review before it goes live (this is a BIG red flag).
One thing sex toy reviewers should know, and I say this as someone who also represents small manufacturers sometimes, is that companies get approached a LOT by sex toy reviewers. A LOT. So if a company says they can’t provide a free sample, know that this alone does not make them a bad company. That’s not really legal advice, just general “let’s all play together nicely” advice.
Very true. So, since a lot of our contact with companies is via email, how legally binding is an email exchange in which there is not a contract per se, but there is an agreement of sorts? What kinds of agreements should we avoid making?
It all depends. In a perfect world I would advise people not to make ANY agreements, through email or any other method, without consulting with an attorney first. But that is not practical (not everyone has an attorney handy that often, not to mention the fees).
To determine whether any particular email exchange can be construed to be a binding contract you’d have to look at a number of things:
The “course of dealing” of the two parties — have they done business before and come to terms through email exchanges and then acted on those terms?
The level of sophistication of the two parties — should they both reasonably know that the other meant for the agreement to be binding, or is one experienced in contracts and the like and the other not?
What kind of precedent would this set if a court did say that yes, this should be a legally binding contract — would it be good public policy?
If I had to guess I would say that unless the intended contract language is REALLY clear in the email (almost to the point of saying “I EXPECT THIS TO BE LEGALLY BINDING”), you might have a hard time getting a ruling that there was a clear intended contract.
I’ve been Googling a little bit and it sounds like as long as a review is an opinion piece and reasonably seen as such, it cannot be defamation. I think review blogs are all pretty clear that they are based on opinion. What is opinion and what is libel? I’m allowed to call something a “shoddy piece of crap,” right?
The sites you’ve Googled, particularly the EFF, are pretty great. EFF is an amazing source of information for folks doing any kind of publication. And yes, opinions cannot be the basis for a claim for defamation because a defamation claim has to be based on “a statement of verifiable fact.” Saying something is a shoddy piece of crap does tread the line, since a reasonable reader may think you are stating this as a fact. It’s safer to stick to describing your experience with it and WHY you came to the conclusion that it’s a shoddy piece of crap. Show, don’t tell, in other words.
Well, truth is always an absolute defense to claims of libel or slander, at least in the US. So when you can show verifiable truths that led you to the opinion that a company was unethical, you’re sitting in a good spot. The same with the Doc Johnson issue. If you could show that they made a claim on the package that wasn’t true, that would be a defense to any claim of slander or libel on their part.
The last example, your review of the Little Chroma, makes some accurate statements about things that are true about the vibrator (like that damn screw on and off cap feature, ugh!) and the rest is quite obviously your opinion. The company may not like it, but I don’t think, with the style and overall feel of the piece, that they could argue that someone would think you were stating anything that wasn’t a fact as fact.
But this proves a good point about these kind of claims… there is a lot of wiggle room which allows for attorneys to try to argue about things. So you could get sued, but I doubt it would hold up.
Okay, so say a company threatens legal action over a review. What do you suggest the blogger do?
If the blogger were my client I would counsel them to ignore the threat, OR to let me take over the correspondence, where I would explain calmly but firmly to the person threatening the suit just what we’ve discussed here. I’d also ask for the contact info for the company’s lawyer because I have found that most of the time when people immediately jump to “I’ll get my lawyer involved” they don’t actually have one. If you have a lawyer you consult with them and if they are any good they tell you “either let me take over the communication or don’t mention me, otherwise you sound like the little boy who cried wolf.”
Finally, I would remind the company that the internet is SUCH a convenient tool for communication, and that just like you see on television, “anything they say can and will be used against them.” It’s sometimes good to remind companies that even if they truly believe they are right, the vast majority of people who find out about what they are doing will see it for what it likely is, which is an attempt at bullying a blogger.
I am nodding so hard right now. But what if a company explicitly says, “take down that review, or I’ll sue you”? Should the blogger cave, or wait to see if anything comes of it?
Any good attorney would send a cease and desist before going straight to a lawsuit. Unethical attorneys may be different, but there is always the issue that you have to prove that you actually had DAMAGES from the review. If you don’t send a cease and desist and give the offending blogger time to remove the content you disagree with, and you don’t have any actual monetary or other tangible damages you can PROVE (not allege, not hypothesize, but PROVE), a judge is not going to look kindly on your case. Suing should ALWAYS be the last resort.
That’s pretty reassuring. And this would always apply to just one post, right? They wouldn’t be able to ask for the entire blog to be taken down? And if someone gets a cease and desist and they comply with it, they aren’t out any money?
Yes and yes!
Oh, sweet relief! Okay, just one more, but it’s an important one. If a company does something shitty to a blogger and they want to alert other bloggers, is it a bad idea to blog about it publicly?
Caveat: I’m kind of a risk taker and have a somewhat vigilante streak when it comes to companies doing shitty things to people. And I am privy to a LOT of this, and can’t say anything because of my client confidentiality requirements. So I often am very inclined to tell clients to give as much publicity as possible to companies and people who do shitty things and think they can get away with it.
However, the sex industry can also be a very small world, so I often have my clients walk through with me a pros and cons list for if something is made public. I also always caution them to wait a day before responding or publicizing anything, unless it is time sensitive information to disseminate.
So, might they get some flak from the company and make some people think they are petty or being catty by blogging publicly? Maybe, but if something egregious is said or done and the blogger feels they owe it to the community of other bloggers and the public at large to tell about it? Then I say go for it. Just make sure you’ve taken all the precautions we talked about, and maybe review the EFF’s info re: blogging and the law.
Thank you so much, Davis! You are invaluable!
If you guys EVER need legal, financial, administrative, or even public relations help with your sex-related business, be sure to contact Sexquire. They can do all sorts of things for you, like help you become an LLC, do your taxes, or ensure you aren’t signing your life away in a contract.