Thinking About Sueing HO-Check.com? Keep reading please...
Do you really want to sue HO-Check.com?
You should read this information before filing a lawsuit against us, HO-Check.com or it’s creator(s).
Do you have any of the following questions?
· There's a untrue Check a H.O. report about me on this site!!! What can I do?
· If the original author of a Check a H.O. report sends a retraction will it be removed?
· I heard you have to remove false information upon demand, is that true?
· Lawyers say HO-Check.com has to verify postings before posting them is that true?
· If I file a lawsuit against HO-Check.com, will that get my complaint removed?
· I want the name of who posted an anonymous report about me. How can I get that?
If you answered 'YES' to any of these questions, please read this information before filing a lawsuit against HO-Check.com or it’s creator(s).
1. Introduction
From time to time, HO-Check.com receives notices from individuals and jobs/companies that claim that false or inaccurate information about them has been posted on this site. Sometimes we receive letters from lawyers with similar allegations. These people sometimes threaten to sue HO-Check.com 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 HO-Check.com are not effective, nor will they result in the removal of any reports. Here's why.
2. HO-Check.com's Policy: Why We NEVER Remove Reports
As is our policy, we never remove reports even when they are claimed to contain defamatory statements, and even if the original author requests it.
The reasons for this policy are simple.
First, this site is only effective when all complaints are maintained and preserved so that over time patterns of truly habitually offensive behavior and business practices are exposed. If we removed complaints this would give individuals and companies an incentive to pressure authors (or us) to remove true and accurate reports in exchange for money or simply to avoid a costly lawsuit. For that reason, we will never agree to remove reports, even if someone can show that a report is probably inaccurate. Under this policy, no reports are ever removed, so there is no benefit to 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.
If this seems unfair or unreasonable, consider this -- if someone sues you in court and makes outlandish claims that are completely false, you can fight the case and win, and at the end of the case a judgment will be entered in your favor proving that you were right and your accuser was wrong. However, the court clerk will NOT destroy the file or seal the records of the case simply because you won. Even when a lawsuit is shown to be 100% baseless, the documents remain part of a public record that is maintained for years or perhaps forever (trust us -- we KNOW about this from first-hand experience). In this situation, the remedy you are entitled to is a court order or judgment proving that you did nothing wrong, not destruction of the public records about the case.
3. The Law You Need To Know - The Communications Decency Act
Some Anti-HO-Check.com sites (who will remain nameless) have tried to spread "truthy" stories that HO-Check.com has been sued and has lost, having to pay millions of dollars in damages in some cases. Just so you know the real truth, here it is.
Because we will not remove reports, HO-Check.com has been sued on many occasions based on the content which our users have created and posted. If you are considering suing HO-Check.com because of a report which you claim is defamatory, you should be aware that to date, HO-Check.com has never lost such a case (with one exception; explained below). This is because 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 a website such as HO-Check.com, 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 reports on HO-Check.com are authored by users of the site, we cannot be legally regarded as the "publisher or speaker" of the reports contained here, and hence we are not liable for reports even if they contain false or inaccurate information.
The reasons for this rule are simple. Websites cannot possibly monitor the accuracy of the huge volume of information which their users may choose to post. If a disgruntled 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.")
In general, each and every lower federal district court and federal appellate court that has construed the CDA has held that websites like HO-Check.com are immune from virtually every type of civil liability when the site has been sued based on information posted by a third party. See Doe v. America Online, Inc., 783 So.2d 1010 (Fl. 2001); Green v. America Online, 318 F.3d 465, 470 (3rd Cir. 2003) (noting that the CDA, "‘precludes courts from entertaining claims that would place a computer service provider in a publisher's role,' and therefore bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions - such as deciding whether to publish, withdraw, postpone, or alter content.'"); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003); Schneider v. Amazon.com, Inc., 31 P.3d 37 (Wash.App. 2001); Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003); Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); Blumenthal v. Drudge, 992 F. Supp. 44 (D. D.C. 1998).
Based on the protection extended by the CDA, HO-Check.com will successfully defend any case brought on with such basis. The CDA shields our site from any claims seeking to treat it as the speaker or publisher of information posted by a third party. See Global Royalties, Ltd. v. Xcentric Ventures, L.L.C., 2007 WL 2949002 (D.Ariz. Oct. 10, 2007) (holding CDA barred claims against HO-Check.com based on statements posted by a third party user of the site); Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, No. 2:04-cv-47-FtM-34SPC, 2008
So, why should you care about the CDA? Well, it's simple -- if someone posts false information about you on HO-Check.com, the CDA prohibits you from holding us liable for the statements which others have written.
Now, to be 100% accurate -- there was ONE case where a predecessor website to HO-Check.com was sued in a foreign country and a default judgment was entered in the plaintiff's favor. However, when the plaintiff tried to domesticate that judgment in the
4. Other Websites Have Said A New Case Shows That HO-Check.com Is Not Protected By The CDA; Is That True?
On April 3, 2008, the Ninth Circuit Court of Appeals issued an opinion in a case called Fair Housing Council of San Fernando Valley v. Roommates.com, L.L.C., --- F.3d ----, 2008 WL 879293, 08 Cal. Daily Op. Serv. 3857 (9th Cir. 2008). Some people (okay, lawyers, mostly), have recently argued that Roommates has narrowed the CDA significantly, exposing HO-Check.com to liability even with regard to information posted by third parties. If you are interested, you can get a copy of the actual Roommates case here. Many of HO-Check.com's critics have tried to argue that Roommates says that the CDA no longer applies to sites like HO-Check.com, but that's not what the case says.
The Roommates case involved a website, http://www.roommates.com/, which allowed users to advertise and search for housing opportunities and, of course, potential roommates to live with. As part of its operation, the website asked each user to answer a series of questions about themselves and about the kind of roommate they wanted. These questions included topics such as race, gender, marital status, number of children, and so forth. Every user of the site was required to answer these questions before they could use the site.
Based on this, a group called the Fair Housing Council of San Fernando Valley sued Roommates.com, arguing that the questions asked by the website violated a federal anti-discrimination law called the Fair Housing Act or "FHA"; 42 U.S.C. § 3601 et seq. Under the FHA, it is unlawful for anyone to discriminate in a housing-related transaction based on a person's race, religion, family status, or national origin, so merely asking a person who is seeking housing about the number of children they have is potentially a violation of the FHA. Because the website asked its users to answer questions which were not permitted under the FHA, the Fair Housing Council sued in an effort to require Roommates.com to stop asking these questions.
At the start of the case, Roommates argued that it was protected by the CDA. The trial court agreed and dismissed the case. The Fair Housing Council appealed and the Ninth Circuit Court of Appeals reversed, saying that the CDA did not protect the Roommates.com site.
The case is very long and some of the judges "dissented", meaning they disagreed and felt that the CDA should have applied. However, you do not need to be a lawyer in order to see why the decision in Roommates was correct, yet this does not mean that HO-Check.com is exposed to liability.
Under the CDA, a website cannot be treated as the "publisher" or "speaker" of information provided by a third party (i.e., someone using the site). But in Roommates, the Fair Housing Council argued that the site violated the FHA by asking illegal questions, not because it was publishing or speaking any information from a third party. Since the Court agreed that the FHA could be violated by anyone who asked such questions in the context of a housing transaction, it found that the plaintiff's claims did not require that Roommates be treated as the publisher or speaker of any information from a third party, and therefore the CDA did not apply. This decision was correct because the website was responsible for the fact that it asked illegal questions regardless of how (or if) a user answered the questions.
HO-Check.com does not ask illegal questions. The sole purpose of this site is to allow users to post stories about their experiences so that other consumers can read them, become more informed, and make more educated decisions about how to spend their hard-earned dollars. Our terms of service specifically prohibit users from publishing any false information on the site, and we require every user to affirm that their report is true and correct before the report is published. Because the HO-Check.com website does not violate any laws merely by the fact of its existence, the holding in Roommates does not apply to us and we are still protected under the CDA.
5. But what if the original author asks us to remove a report? Why doesn't HO-Check.com have to take a report down when the author requests this?
There are two reasons why HO-Check.com does not remove reports even if the original author has asked us to do so. The first is the same as stated above -- as a matter of policy, HO-Check.com (like the Ripoff Report.com) does not want to encourage big companies to bully individuals into asking us to remove their truthful reports. So, we simply will not agree to remove reports, ever, thus eliminating that incentive.
Second, every time a report is submitted to us, the author must read and agree to the following terms (under "Step 6 - Submit Report"): "By posting this report/rebuttal, I attest this report is valid. I am giving HO-Check.com irrevocable rights to post it on this web site. I acknowledge that once I post my report, it will not be removed, even at my request. Of course, I can always update my report to reflect new developments by clicking on UPDATE."
This does not mean you are powerless.
On the contrary, you can write a comment/rebuttal explaining your position. Rebuttals are 100% free, and we strongly encourage you to use this resource since they 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. 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 HO-Check.com legally responsible for material written by third parties.
To be clear, all of the reports and rebuttals on the HO-Check.com have been authored by our users, not by us. For more than five years, no employee or agent of HO-Check.com has posted any content on HO-Check.com about a company without the company's written permission. Also, HO-Check.com 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.
6. Specific Answers To Frequently Asked Questions
There's a false report about me on this site!!! What can I do?
As explained above, one thing you can't do is to sue HO-Check.com. Sorry, but the law just does not allow this. You can always, however, 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 filed 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 HO-Check.com remove the complaint?
If you get the original author to retract his/her report, that author can easily post the retraction as an update to their report. This is 100% free and it 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 strongly 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 Terms of Service 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.
If you think this is unfair, consider this -- everyone knows that Michael Jackson was accused many years ago of molesting a young boy (this was the first case, not the later one). While the police were investigating but before charges were filed, Michael Jackson reached a settlement with the boy which included a confidentiality provision that prevented the boy from talking about the case -- even to the police! As a result, the police were never able to complete the investigation and no criminal charges were filed against
Because this made it appear that Michael Jackson had "bought the silence of a witness", shortly after this happened California passed a new law -- Code of Civil Procedure Section 1002 -- which prohibits confidentiality agreements in civil cases relating to allegations of sex crimes. Under this law, it is impossible for a wealthy defendant to pay off a victim and escape responsibility by requiring the victim to promise not to discuss the case in exchange for money.
Although the situation is slightly different, the same reasoning explains why HO-Check.com 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 individuals or 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, for the reasons explained above, that's not true. Under the CDA, HO-Check.com 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 HO-Check.com 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 HO-Check.com just like the Rip-off Report is not the New York Times or the Wall Street Journal or the NBC Nightly News. 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 HO-Check.com which receives thousands of submissions per day, 24 hours a day, 7 days a week, 365 days a year. If HO-Check.com 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 HO-Check.com’s Terms of Service. Will you remove it?
As explained on this page, although our Terms of Service 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 TOS, we have no way to determine if this is true, of if the information is really accurate. These issues have to 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 Terms of Service. If such information accidentally gets into a published report, please contact us and we will remove the information if appropriate.
However, if a report contains information which you allege is false, the staff of HO-Check.com 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 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. 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 always 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 http://www.bosleymedical.com/ which he filled with statements harshly criticizing Bosley Medical’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 Medical’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 HO-Check.com, and unless a significant number of people viewing the HO-Check.com 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 webpages. These tags are used for indexing purposes by search engines such as Google, Yahoo!, and so forth.
When a person creates a HO-Check.com, 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 "
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 report appears on HO-Check.com and it contains a third-party’s trademark in either the title, text of the report, or in a 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 HO-Check.com, will that get my complaint removed?
No. HO-Check.com is not liable for statements posted by a third party, and it has never lost a case involving such statements, 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 wallet and into an attorney's pocket.
I want the name of someone who posted an anonymous report about me. How can I get that?
Our Terms of Service require us to protect the First Amendment rights of our users by safeguarding their privacy to the fullest extent of the law. This means that HO-Check.com will not release the contact information of any user of the website without a lawful court order.
Although this is a question that you should discuss with your attorney, at a minimum HO-Check.com will generally follow the requirements set forth in Mobilisa v. Doe, 170 P.3d 712 (App. 2007) with respect to any subpoena(s) we receive demanding the contact information for anonymous third party authors.
I Know the CDA Protects HO-Check.com, 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 report(s) you are concerned about), you and/or your attorney can be subject to serious sanctions at the judge's discretion. Many who have sued other websites have settled with them and some have paid some or all of thier attorney's fees. Other times cases have been defended for years running up large legal bills for both sides. Either way, we will more than likely NOT pay (like these other sites)have never paid out a dime in settlement or damages to anyone who has sued.
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 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 HO-Check.com 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 HO-Check.com authors and those who are the subject of HO-Check.coms. However, HO-Check.com 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
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. Due to the number of meritless cases similiar sites have had to defend, HO-Check.com has adopted a very strict policy about lawsuits -- once HO-Check.com 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 HO-Check.com'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 HO-Check.com's attorney fees because HO-Check.com will not stipulate to a dismissal without compensation.
This This information was derived in whole or in part from The Ripoff Report.com