You’ve been bullied online. Now what? The following suggestions for how to respond to online bullying comes from https://cyberbullying.org in an article titled, “Advice For Adult Vicitms of Cyberbullying“:
Also, please be careful not to retaliate – or do anything that might be perceived by an outsider to have contributed to the problem. Do not respond to the cyberbully except to calmly tell them to stop. If they refuse, you may have to take additional actions.
If the threats or comments are detrimental to your health, safety, or occupation, you might want to consult with an attorney who specializes in harassment, defamation of character, false light, intentional infliction of emotional distress, or similar types of civil action. A letter sent from an attorney (on law firm letterhead) to the bully may be all that is necessary to get the bullying to stop.
In 25 years of having an online presence I’ve done all of the above…and a few others things that aren’t on this list. Read on…
EtiquetteHell started about 22 years ago as a joke in a Usenet wedding planning group. Usenet was a wild and crazy anarchy of no rules, no filters, no moderation where the only hope of having a civil group lay with applying peer pressure. This was also an era where you could complain to the ISP about trolling, bullying and the ISP would actually do something about their wayward client.
Usenet wedding planning groups attracted not only brides but numerous wedding vendors, some of whose behavior fell far below what anyone would consider to be professional. To separate the good vendors from the bad, I created a Vendor Hall of Shame on my personal web site that predated Ehell by at least a year. Vulgarity, insults, lying, bad BBB reports all earned dozens of vendors a spot on my site. And they didn’t like it one bit, particularly the photographers who declared war.
My first attorney I hired was Lloyd Jassin, author of the then best-selling book, “The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors, and Publishers”. Jassin was a firm advocate of the right of the libeled to defend themselves with published rebuttals. Wired Magazine ran a very interesting article in 1996 titled “Libel Law: Let It Die” in which author Mark Godwin makes the case that internet libel lawsuits will go the way of the Dodo bird because of the internet culture of refuting speech with speech.
“It may be that the Net kills libel lawsuits – partly because the Net turns many more of us into public figures, and partly because our ability to use the Net to rebut charges is a much more satisfying remedy.” Mark Godwin
Jassin suggested that I respond to the fallacious statements being made by disgruntled vendors by publishing point-by-point, factual, data verified rebuttals. It was advice right in line with what the Wired Magazine article was advocating:
“The comparative openness of the Net means that more people who feel they’ve had their reputations besmirched have access to self-help. If some bozo writes 100 lines of false statement and innuendo about your sex life or personal habits, you can write 500 lines of point-by-point refutation. It’s a “day in court” that comes cheap.” Mark Godwin
Cyberbullying.org’s counsel to not retaliate against online bullies must come with a caveat. There is a moral, ethical and legal right to defend yourself against bullies who would destroy you by any means available to them. Point-by-point refutations have the effect, as Mark Godwin noted, of “leveling the playing field”. Godwin sums it up so well: “After all, it’s much more satisfying to use the Net to correct the record and to flame your defamers. And this remedy doesn’t take years – it takes only minutes.” I ended up publishing four such documents, created as FAQs, during my tenure on Usenet.
FAQs 1 and 2 involved 2 wedding photographers, a female photographer and a male photographer who defended her endlessly. I concluded about a decade ago that, if I had to do it over again, I would not have created the Vendor Hall of Shame or used so much energy trying to expose unethical vendors because, in the end, those efforts, while well-intentioned to protect consumers, did not dissuade brides from hiring them. The female photographer was hired by at least 12 Usenet group members, all of whom reported significant issues with getting their photographs. After paying $3000-5000 for her wedding photography packages, many of them could not reach her and they did not have their wedding photos. At least 2 filed lawsuits and won. Clients followed her all over the Internet trying get her to talk to them about their missing photos. She was featured on an episode of the Clark Howard Show, her business partner sued her and won, among other things. At least four other photographers and videographers on the Vendor Hall of Shame page skipped town leaving clients with having paid thousands of dollars and received nothing, unable to find their vendors.
FAQ 3 pertained to a man named “Steve” on the Usenet wedding groups. Steve had a witty humor that lured you into private email conversation with him. Once hooked, he made sexually inappropriate requests, asking for nude photos. When Melissa Z reported to the group that he had done this to her, he threatened her with a lawsuit. Three more women came forward claiming to have also received sexual requests from Steve and I was one of them. He retaliated against anyone who complained to his ISP. In one case he accused a photographer of creating pornography in his studio, and a wedding florist by the name of Paul was repeatedly framed by Steve to appear to be racist by replying to Paul’s posts but changing the content of the quoted material as if Paul had originally written it to be racist. Steve’s retaliation against me included writing Usenet posts that appeared to be written by me, changing just one letter of my name, and which made me look like a raging racist claiming, for example, that I homeschooled my kids “to keep them separated from n*ggers and jews”. ( In February 2014 Gawker reported the case of a woman’s ex-boyfriend public shaming her by framing her as a racist and posting the evidence to Racists Getting Fired as if this was some new phenomenon. )
I wrote the Steve FAQ to document everything Steve had done to various people including me and to refute the libel he had stated against various people. His retaliation for my FAQ was to make a threat that was so credible I filed a police report with the Granville County, NC Sheriff’s Department who forwarded it to the FBI. I included in the police report a copy of the FAQ as well as print-outs of Steve’s posts documenting that he had used the same ISP address and posting path in all his posts, including the threats and the posts that had framed me and others as racist. Several months later I received a phone call from the detective assigned to my case informing me that 1) after subpoenaing uu.net and earthlink.net, I had been correct in Steve’s full name as well as the city where he lived; 2) an FBI agent had paid a visit to Steve and had a chat with him; and 3) I would never be bothered by Steve ever again. And I haven’t.
FAQ 4 was the most heavily researched document I’ve done to date regarding two 2 women – Sue Bishop and Shirley Beard aka Shirley Hart, aka Shirley Whisler. Bishop had a reputation on Usenet of attacking individuals who disagreed with her by calling them child abusers or contacting their employer trying to get them fired. I came into her radar when I questioned her claims about Ohio’s laws pertaining to animal welfare and rescue and in retaliation she contacted my husband’s employer trying to get him fired despite the fact that he had not been involved in the debate at all. To make a long story short, Beard was an animal control director in Ohio having obtained that position by falsifying her credentials in her resume. Bishop was her volunteer sidekick. Both Bishop and Beard exploited a weakness in Ohio’s then law that allowed animal control officers to arrest offenders and to sell confiscated animals. Beard and Bishop would trespass on farms without a warrant, take photos of horses and return days later claiming the animals were neglected and threatening arrest if the owner did not surrender the horse(s) to them. The horses, some of them registered show animals, would then be sold to a buyer, in some cases competing breeders, with Beard and Bishop pocketing the money. By the time I was researching this, the county district attorney’s office already knew of the problem, Beard had been exposed as a fraud and had skipped town, and Ohio’s laws were in the process of being changed. A year after Beard skipped out leaving her property in foreclosure, the new owner discovered a horrifying site. Left in the house was a cat in a crate and a dog tied to a tree, both dead of starvation. I spoke to the new animal control director who had investigated the deaths and his disgust, anger and sadness were palpable. I still grieve 20 years later thinking of a lonely dog, tied to a tree and left to die a miserable, ugly, slow death. Two years after I published the FAQ on Bishop and Beard, Bishop hired a lawyer threatening a SLAPP (Strategic Lawsuits Against Public Participation) lawsuit, a legal form of bullying people into silence that is being increasingly banned in many states. Not content to let her attorney handle the case, Bishop emailed me with specific threats which included a threat to harass me at my home. Bishop’s attorney, upon being given this information by my attorney, backpedaled furiously and abandoned her client. Sue Bishop is now deceased.
Once I made the decision to turn EHell from a hobby into a licensed corporate business with a registered trademark and copyrights, it was time to have a lawyer on retainer. My attorney for the past 15 years is a “Super Lawyer”, a bar association Certified Specialist in trademark law and former chair of the American Bar Association’s Trademark Litigation and Trademarks and the Internet Committee. Hire the best attorney you can afford. The vast majority of EHell’s legal expenses pertained to trademark registration, defending the trademark against infringers (successfully I might add), copyrights, grant of rights, etc….boring but necessary stuff. When you own a website where your comments and opinions are published, it is expected that there will be dissenters, detractors, people who hate your guts and that’s just part of the package. But there were a few legal dramas arising from people taking things too far and which necessitated engaging the lawyer in fixing the problem.
The most notable legal issue occurred when the forum was being hosted on DelphiForums.com. Delphi staff had published a statement that I was committing a crime in the way I acquired stories for my books, that I was violating copyright law. Had this statement stood uncontested, it would have damaged my ability to acquire new stories and damaged people’s trust that I was following the law. The process by which I acquired the grant of rights to use those stories had been vetted by my lawyer and by the publisher’s legal department and involved acquiring the signatures of every person whose story appeared in any books in grant of rights documents. It took months to get all of the grant of rights documents signed and I still have the originals. Accusing anyone of a crime they did not commit is legally known as “libel per se”, meaning the false statement is so libelous on its face that no proof of damages is needed, the damages are assumed. My attorney wrote a demand letter to the CEO of Delphiforums.com, I received an apology and retraction letter that, according to the settlement agreement, I am allowed to publish anywhere I desire, and a settlement I am not allowed to talk about other than to say I’m happy. The moment we knew the settlement agreement had been signed and was in my lawyer’s possession, we hit the button on closing the Delphi EHell forum, then ranked #1, and moved it to a dedicated server that same day. Sweet revenge. I credit the Delphi libel issue with awakening me to the advertising earning power a large forum has.
The Delphi Forums case brings up a very interesting aspect of fighting defamation and libelous cyberbullying. To win most defamation/libel lawsuits, you may likely need to prove “malice” which is legally defined as “a conscious, intentional wrongdoing of a civil wrong like libel (false written statement about another)”. Traditionally, a person’s retraction of the false statement has served as evidence of an absence of malice as revealed in both case law and state statutes. From the University of Chicago Legal Forum: “Similarly, a refusal to retract has sometimes been used to buttress allegations that a defendant published a defamatory article maliciously. Although some courts have held that a failure to retract does not establish actual malice, most authorities suggest that a failure to retract, in conjunction with other circumstances, may be used to establish the requisite level of malice.” So, present your evidence in a factual, data referenced rebuttal, have an attorney vet it and include a demand for a public retraction. If the person publicly retracts the false statement, you both win. You get vindicated and neither of you is spending thousands of dollars on legal fees when spending it on a trip to Hawai’i would be so much better. If a retraction is not forthcoming, you have laid the groundwork for a better outcome should you pursue a lawsuit as a remedy.
Attorneys Can Be The Worst Bullies
I’m convinced that rogue attorneys can be some of the worst bullies online because there is an implied trust that they know more about the law than the average person therefore they are more credible. One of the EHell forum moderators was an attorney and people claiming to be attorneys and dispensing legal advice online without a disclaimer was one of her pet peeves. The forum rules banned legal advice so as to protect alleged lawyers from ethical lapses and to protect forum members from being misled. And yet two of the worst incidents of cyberbullying on EHell were perpetuated by lawyers.
The first lawyer case involved three women who had banded together to contact EHell’s hosting provider in order to claim that there was a copyright infringement on the site. They did not file a Digital Millennium Copyright Act Notification nor had they contacted me. A DMCA Notification is a legal document filed under penalty of laws against perjury stating that the filing party is or represents the copyright holder, that they have a good faith belief that infringement is taking place, and identifying the infringing content. The owner of the hosting service refused to recognize their complaint since it was not filed correctly and he refused to take down the Ehell site. When they began to threaten him personally he contacted me asking for help and EHell’s lawyer was brought up to speed. The spokesperson for the three women was a lawyer who threatened a lawsuit if the alleged copyright infringement was not removed (still no legal DMCA notification). When we discovered that the “lawyer” had not been licensed to practice law in the state she had lived for the previous 8 years, my lawyer sent her a scathing letter. Never heard from the three of them again. This incident changed EHell’s policy on copyright infringement reports (http://www.etiquettehell.com/?page_id=791). While I have removed stories at the request of the original story tellers, I do not tolerate bullying by people trying to shut down the site by use of bogus copyright infringement claims.
The second interaction with a bully lawyer occurred recently. When I announced the impending closure of the EHell forum in May 2018, every troll wanted to get their last licks in and this one attorney was right in the thick of it. She had joined the forum several years ago, credited it with helping with her wedding plans, she had never been moderated and she and I had never interacted either online or off. In other words no one associated with Ehell harmed her during her tenure on the forum. She was intent on harming me however. When a question was raised as to whether the words “Etiquette Hell”, “ehell” or “ehellion” could be used in the title of a new, off shoot forum, I had replied that these were trademarked words and I did not give permission for them to be used in that manner. Ms. Lawyer chose to post in a private Facebook group of about 400 people that 1) she was a trademark attorney and 2) my trademark was “bullshit”, “worthless” and “good luck to her if she ever tried to enforce it” thus implying that people were free to use the trademark without fear. The members of that group egged her on to post that information in the Ehell forum and she did so along with stating that I had a “lack of understanding of intellectual property law”. The irony of her actions is that the Facebook group she had posted her wayward legal advice to had violated my trademark years earlier by naming the group “Etiquette Hell”. One complaint to Facebook with the proof that I owned the trademark in the name and POOF! A Facebook agent named Paula deleted that entire group. (This, btw, brought out the crybullies who whined that I had not asked them to change the name while ignoring the obvious fact that they had not asked my permission to use it.)
Ms. Trademark Lawyer was found to have registered as a member of the EHell forum via her employer’s server, a law firm. The trademark post she made to the forum was also found to have been sent from the same law firm’s server during business hours so the decision was made to address our legal demands directly to the managing partner of the law firm since it was apparent his employee was declaring herself to be a lawyer and giving detrimental legal advice on the law firm’s time and server. I know this decision may cause some readers heartburn but the suggestion came from my attorney who is also the managing partner of his law firm.
Below is an excerpt from the letter a bar association certified specialist in trademark law and former chair of the American Bar Association’s Trademark Litigation and Trademarks and the Internet Committee writes to a lawyer who thinks she knows trademark law:
Recently, Ms. Jeanne decided to temporarily close the current Etiquette Hell forum, but not her blog, in order to restructure her offerings. After announcing this decision in early May 2018, a forum member asked if they could start a new forum using “Ehell” or “Ehellion.” Ms. Jeanne explained that she has trademark rights in ETIQUETTE HELL, EHELL, and EHELLION, and that the forum member would need to choose a different name if they wanted to start their own forum. Later that same day, Ms. Lawyer decided to weigh in on Ms. Jeanne’s request not to use her and EHL’s trademarks. Ms. Lawyer posted in an anti-Etiquette Hell group:
The Etiquette Hell trademark is bullshit, btw. It’s registered for “publication of wedding stories” and the exclusive right to use ETIQUETTE is disclaimed, so basically it’s a worthless trademark registration for general message board purposes and good luck to her if she ever tried to enforce it (yes I am/was a trademark attorney, haha).
When someone suggested Ms. Lawyer repeat that information to Ms. Jeanne, Ms. Lawyer replied, “That would ensure me getting banned for legal advice.” Ms. Lawyer then went onto the Etiquette Hell forums and posted:
Curious, where are the Ehell and ehellion terms registered as trademarks? I only see Etiquette Hell at the USPTO and that’s only registered for “wedding stories” (with the exclusive right to ‘etiquette’ disclaimed).
She later stated:
Not sure if it’s purposeful misstatement or a lack of understanding of intellectual property law. In any case, once you stop actively using a trademark you lose rights in it. The more you know!
Ms. Lawyer’s statements, and her describing herself as a “trademark attorney” who provided “legal advice,” are problematic. Individuals reading Ms. Lawyer’s statements are likely to mistakenly believe that they may use Ms. Jeanne’s and EHL’s marks without permission and that such behavior would be legal.
Unfortunately, Ms. Lawyer either misstated or lacks an understanding of trademark law. A trademark attorney should be well aware that registration is not required for enforcing trademark rights in the United States. Trademark rights in the United States spring from use in commerce. Ms. Jeanne and EHL have over twenty years of exclusive use in commerce of their ETIQUETTE HELL, EHELL, and EHELLION marks in conjunction with online forums (i.e. “message board purposes”). Ms. Jeanne and EHL own common law trademarks in ETIQUETTE HELL, EHELL, and EHELLION for online forums. Using any of those marks to offer a competing forum would be trademark infringement. 15 U.S.C. § 1125(a).
A trademark attorney should also know that abandonment does not occur the moment a mark ceases being used in commerce, particularly where use continues in related areas of commerce. Nonetheless, Ms. Lawyer told members of the Etiquette Hell forums that Ms. Jeanne and EHL would lose their rights “once [they] stop actively using” their marks. The Lanham Act, however, makes clear that abandonment requires discontinued use with intent not to resume such use. 15 U.S.C. § 1127. It further explains that “nonuse for 3 consecutive years shall be prima facie evidence of abandonment.” Id. Three years have not passed since May 2018. Ms. Lawyer also failed to properly state the law that abandonment requires not only discontinued use but intent not to resume use. Importantly, Ms. Jeanne is continuing her blog publications under the marks.
Third parties are likely to believe Ms. Lawyer is providing them with an accurate statement of the law. Ms. Lawyer held herself out as a trademark attorney and is associated with a reputable law firm. She then provided misstatements of trademark law that give the impression that Ms. Jeanne’s and EHL’s trademarks are free for anyone to use. This, in turn, is likely to lead to increased infringement and increased legal fees for our clients, who will need to enforce their marks against these infringers.
Ms. Lawyer is an associate of your firm. Your website identifies her as practicing “intellectual property matters” and she is holding herself out as a trademark attorney. Nonetheless, she is either intentionally misstating the law or she is committing malpractice. Her acts further amount to unfair and deceptive trade practices and intentional interference. As she is acting in her capacity as an attorney, and as her employer as an attorney is your firm, please be advised that Law Firm may also face liability for Ms. Lawyer’s behavior as she is ostensibly providing legal advice within the scope of her employment with your firm.
Ms. Lawyer did respond. She deleted the thread in the Facebook group, removed herself from that group and replied to the above with a letter of her own written in a manner my attorney described as an attorney’s version of skulking off the field of battle with her tail tucked between her legs without actually admitting she was wrong. Ms. Lawyer declined to make a settlement agreement and in my opinion this is not a prudent choice. If cyberbullying is about having power over another person, Miss Manners’ advice in the first installment of this series applies, i.e. be careful who you bully because they may be more powerful than you think. Failure to reach an equitable settlement that makes both of us happy leaves me holding all the power. I am free to publish, disperse, disseminate the factual details of this incident to whomever I want, whenever I want for the rest of my life. Twenty years from now, if she’s been nominated to a high court position or is political candidate for office, I am free to publish the data.
Over the 2+ decades of being online, I have encountered my share of kooks, bullies, crazies, etc. and as I look back, I’m comfortable with the avenues I and my legal team have used to address those situations and generally I’m happy with the outcomes.
Next in the Online Bullying Series: Doxing