Most people online know what a “troll” is and pretty much everyone, regardless of whether or not they know the term, has encountered at least one in their travels on the Web.
Wikipedia describes a troll as, “Someone who posts inflammatory, extraneous, or off-topic messages in an online community, such as an online discussion forum, chat room, or blog, with the primary intent of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion.”
However, there is another type of “troll” working on the Web as we speak. Though this kind is much more rare, it is also much more dangerous. Where a traditional troll may disrupt a conversation or say hurtful things, legal trolls (or law trolls) sue/threaten people and, in doing so, attempt to ruin them financially, often over minor perceived violations or no violation at all.
But as few and far-between as these legal trolls are, they are growing and you need to be aware of them and how to avoid them, at least as much as possible. So, with that in mind, here’s your guide to the world of online legal trolls.
Defining the Legal Troll
As with the regular troll, it can be difficult to get a clear or succinct definition of what a legal troll is. The definition seems to change wildly as new, controversial legal tactics get tried out.
For my purpose, and the purpose of this article, I’m defining a legal troll as follows: Anyone who uses the legal system in an unfair manner against others online in a bid to either silence criticism or earn a profit when either no illegal activity has taken place or the infraction was so small that the legal response is clearly disproportionate.
In short, it’s someone who abuses the legal system to hurt others online.
Obviously though, this leaves a lot of room for interpretation and, unlike traditional trolls, most legal trolls probably don’t see themselves as such. There’s a lot of room for disagreement on this issue.
Still, there has been a wide variety of controversial litigation and threatened litigation on the Web in recent years and, sadly, it appears things are just getting started. On that note, here are just some examples of legal trolling taking place on the Web.
While there are many occasions where a copyright lawsuit is both reasonable and justified, such as the Lara Jade case, there are times that people go too far with copyright litigation.
Take, for example, the case of Righthaven. Righthaven is a company that files lawsuits over content from the Las Vegas Review-Journal and the Denver Post. Whenever they find content from those papers online, the company acquires the rights to those works and then files suit over them.
Righthaven’s tactics, however, have drawn a great deal of controversy for several reasons including:
- Righthaven doesn’t sue on behalf of the copyright holders, but for themselves. Collecting copyright judgments and settlements is their primary, if not their only, business model.
- Righthaven makes unreasonable demands that aren’t backed up by the law, including demands that the domain name be turned over.
- Righthaven sues before taking any other action, such as sending a cease and desist letter or a DMCA takedown notice. This makes the lawsuit the first warning of the infringement.
Righthaven has also created controversy by targeting forum owners and site administrators instead of those who actually upload the infringing material and by seeking settlements that, while still very financially draining, are designed to be less than the cost of fighting the suit.
However, Righthaven has suffered a series of setbacks including several rulings that went against them and a class action counterclaim based on their behavior. But they have hired a new attorney to represent them and, if they are able to overcome their current obstacles, expect a lot more companies to take Righthaven’s approach to copyright “enforcement”.
Blogger and video game marketer Bruce Everiss was sued two years ago by the company Evony LLC, which makes the online game Evony, probably best known for its controversial and skin-baring ads.
However, what made the case unusual was that Everiss, a UK citizen, was being sued by Evony, a company with Chinese and American roots, in an Australian courtroom. The reason was because defamation laws in Australia are very generous to plaintiffs in such cases. That and, with the alleged defamation taking place online, Evony could claim that Everiss’ comments harmed their company’s reputation in the country.
That case was dropped after both a public outcry and the discovery that Evony had more than 10 employees (in Australia only companies with fewer than 10 employees can sue for Libel). Howevery, Evony was far from the only such case of defamation or libel trolling.
In fact, the act of seeking friendly jurisdictions for libel cases, also known as “forum shopping” or “libel tourism”, prompted the U.S. to pass a new libel law last year that would not honor foreign defamation claims unless they met the U.S. standard. This means that, while plaintiffs can still sue anywhere, they will be unable to collect damages.
Obviously this won’t stop the practice but it will, at least, hamper it.
Finally, there are some companies that are famous for engaging in trademark trolling activities online. Fortunately, these companies rarely file suit against bloggers, but they often attempt to get domain names revoked and sites shut down, in particular those that disagree with them.
For example, back in 2002, PayPal went on a crusade against several anti-PayPal sites, including PayPalSucks.com and NoPayPal.com. PayPal sent threatening letters to the site’s administrator as well as other sites that used the PayPal name to protest the company’s service.
Under trademark law, since the use was not intended and not likely to cause confusion in the marketplace, meaning no one would likely confuse the two sites as being “official” PayPal domains, the use was almost certainly legal and none of the sites turned over their domains.
However, other companies have take similar actions as well. Monster Energy Drinks, for example, hired an outside consulting firm to send threatening letters to a site that reviewed one of their beverages. Also, some companies are famous for registering either incredibly generic trademarks or even the trademarks of existing companies in order to obtain royalties for their use later.
These actions are, at least in the majority of cases, not within the bounds of trademark law, which provides a very narrow scope of protection for the mark.
Still, this doesn’t prevent some from getting scared and paying up, which is what the trolls are counting on.
It’s important to remember that, just because someone says something is illegal doesn’t mean that it is. You owe it yourself as a blogger and as Web user to be aware of what the law actually says and ensure that you can both protect your rights and not infringe on others.
It doesn’t take much education to see through most legal trolls so taking some time to study the laws relevant to the Web can save you a great deal of headache in the future.
The good news is that there are still relatively few legal trolls on the Web and it’s unlikely you’ll be directly affected by one. Also, most of the trolls that are out there have been facing serious opposition and their track record when confronted is not that great.
Still, that’s not going to stop others from getting in the legal trolling game, not so long as there may be money to make and unwanted opinions to silence.
So be aware and try not to be the troll’s next victim.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for Freelance Writing Jobs). This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.