There are many rules governing sensible protection of your company's online reputation. The first is simple, if vague: to quote Wil Wheaton, don't be a dick.
If you've been a dick, there's no need to despair. Everybody has a bad day now and then, and the internet is basically a big old bag of dicks, so your dickery may quickly be forgotten. Redemption is within your reach.
Unless, that is, you double down, and triple down, and quadruple down.
"Doubling down" means that, when called out for being a dick, you retaliate by being even more of a dick. The infamous Charles Carreon doubled, tripled, and quadrupled down in his dispute with The Oatmeal and with a satirical blogger. Paul Christoforo doubled down. Craig Brittain of "Is Anybody Down?" doubled down. Ranaan Katz doubled down.
When you double, triple, and quadruple down on online dickery, you place yourself beyond easy reputational redemption, and instead face the full force of the Streisand Effect.
Illinois bus company Suburban Express learned this lesson over the past week. But even though they engaged in online dickery, and even though they doubled down, having caught a glimpse of the Streisand Effect, they are now retreating furiously from the precipice and avoiding the fatal triple- and quadruple-down. But has their change of strategy come soon enough?
Pick A Fight With Reddit! What Could Go Wrong?
Suburban Express provides shuttle-bus services to Illinois universities. I learned about them when, through their attorney, they wrote to a moderator of the University of Illinois Urbana-Champaign, threatening a libel suit based on Reddit postings.1
Folks on the UIUC subReddit became actively interested in Suburban Express when University of Illinois student Jeremy Leval wrote a Facebook post claiming that he witnessed a Suburban Express driver berating a passenger for not speaking English well. When Suburban Express sued Leval, havoc ensued, and reporters discovered that Suburban Express was filing quite a large number of small claims lawsuits against local students.
Suburban Express' litigation strategy depends upon its terms and conditions — you know, those things that you click to accept without reading.
In the event that your ticket is altered, multiple copies of your ticket are collected by driver(s), your ticket is used for transportation on the wrong date or trip or between the wrong stops, you agree to pay the applicable full fare plus $100 for each invalid, altered or duplicate ticket collected, and authorize us to charge your credit card for same.
If passenger or passenger parent / friend / companion / ride interferes with or delays departure of bus in any way, engages in disruptive behavior, or uses offensive or aggressive language in dealing with company, company employees, subcontractors, or subcontractor employees, you agree to pay Suburban Express the amount of $500 for liquidated damages sustained by Suburban Express resulting from the aforementioned actions, and authorize us to charge your credit card for same.
If an attorney is retained to contact you in relation to any violation of the terms and conditions contained herein, you agree to pay said attorney a minimum of 3/4 hour at the prevailing rate.
You agree to direct all questions and concerns pertaining to credit card charges or credits to Suburban Express / Illini Shuttle IN WRITING at PO Box 4048, Lisle, IL 60532.
You agree to pay any and all collection costs, including attorney’s fees, should collection or other legal action become necessary, and that the agreed venue for any legal action arising out of this transaction shall be Ford County, Illinois.
In other words, if you accept Suburban Express' terms and conditions, even though you go to school in Champaign County, they will say you're agreeing you can be sued in a different county, that you'll pay their attorney to demand money from you, that you'll pay their attorney fees if they sue you, and that you'll pay a flat $500 if they think you or your friends have been rude to Suburban Express.2 Asked why they seek to litigate in Ford County, Suburban Express responded breezily:
“Wide-open court calendar, easy parking, and service with a smile,” the bus company said in the email, adding that distance is also a factor. The Ford County courthouse is located in Paxton, Ill., the county seat; the courthouse is 26.3 miles from Champaign and 111 miles from Chicago, according to Google Maps road directions.
I believe the "service with a smile" part. When I called the clerks of the court in Ford County, seeking copies of some of Suburban Express' filings, I found them to be the most pleasant, helpful, and kind people I had spoken to all month.3 They swiftly faxed me a copy of Suburban Express's small claims complaint against Jeremy Leval, which I have uploaded (redacted to remove his address) here. As you can see, Suburban Express attaches its terms and conditions and asserts that Mr. Leval's own online accounts of his ride show that he violated the "disruption" clause above — in other words, that he was the aggressor in the incident in which he says he observed driver rudeness. Suburban Express is demanding $500 in liquidated damages4 plus fees and costs.
Thanks to the helpful people in Ford County, I reviewed other complaints as well, which I picked at random from the docket showing the many cases they have filed this year. Suburban Express' pattern is consistent: they send a demand letter alleging some breach of their terms, demand damages, and if they don't get them sue in small claims court in Ford County. The complaints I've seen are bare-bones and formulaic and rather vague. Notably they are coy about when and exactly how the alleged violations of Suburban Express' terms occurred. This is significant: I've reviewed, for example, a letter from January 2013 dunning a student for a violation that allegedly occurred in 2011. How many students can remember exactly which bus they took in 2011 and exactly what they did with the paperwork?
There's only way that filing lots of small claims cases like this is economically feasible: if the vast majority of defendants don't fight them. Students living in a different county represent the perfect targets for such litigation. They don't have income that will let them hire lawyers, they are busy with school, they may have trouble getting transportation to court, they're easily intimidated, and after graduation they will be concerned about their credit and easy to bully into paying judgments.
Students learning about this litigation campaign were, understandably, quite angry, leading stories of Suburban Express to spread more quickly over social media. But it was not the lawsuits alone that fueled outrage — it was Suburban Express' threats. In addition to the Reddit threat above, I have reviewed threats from both Suburban Express and their attorney to multiple people based on expression on multiple review and social media sites. I am not naming the other threat recipients because I am concerned that doing so could expose them to harassment by Suburban Express; if Suburban Express intuits who has forwarded threats to me and retaliates, I will not hesitate to put up the Popehat Signal and secure pro bono representation for the people threatened based on their speech.
Suburban Express' threats, as the Reddit threat suggests, are highly problematical. Suburban Express plays fast and loose with the difference between allegedly false statements of fact — which can be the basis for a defamation claim — and statements of opinion, which are protected by the First Amendment when they do not imply false statements of fact. Courts are much more likely to view statements on the internet as opinion rather than fact. For instance, Suburban Express takes issue with a statement of Reddit that they are "likely to sue you," saying that given their number of riders it is actually statistically unlikely they will sue you. But given Suburban Express has sued at least 125 people in 2013, this is the sort of statement that will almost certainly be taken as an opinion or rhetorical flourish rather than a false statement of fact. Second, Suburban Express doesn't seem familiar with Section 230 of the Communications Decency Act, which protects hosts (like, say, Reddit or a Reddit moderator) from the words of guests (like people who comment on Reddit or a blog.). All of Suburban Express' defamation threats I have reviewed are either very vague (which, as I often say here, are a reliable hallmark of meritless thuggery) or target protected communication. Suburban Express may not be familiar with Illinois' anti-SLAPP statute, which would provide a mechanism to dismiss the defamation lawsuits early and secure fees for the defendants. In short, Suburban Express' defamation threats are highly dubious.
Consequences Will Never Be The Same!
What's remarkable about this case is how rapidly the Streisand Effect unfolded: it went from zero to "catastrophic reputation damage" in less than a week. That's the consequence of widespread social media and internet use amongst college students. In addition to multiple Reddit threads and articles in the Daily Illini, Suburban Express was soon looking down the barrel of posts at Ars Technica and BoingBoing.
To their credit, Suburban Express and one of their attorneys are now trying to fix things. I corresponded with Suburban Express' attorney, and found him to be polite, professional, and very clearly trying to repair the situation as swiftly as possible. I've also now corresponded with Dennis Toeppen, owner of Suburban Express, who wrote me on Sunday and answered some questions I put to him.5
In short, Suburban Express and their attorney have withdrawn the defamation threat against the Reddit moderator, and say they will dismiss the small claims case against Mr. Leval. Mr. Toeppen followed up by telling me this:
Based on a email which I received after I pressed send on the email to you, I have decided we are going to take the following action:
1) Dismiss all the Ford County suits so that we can take a step back from this.
2) Engage individuals in settlement discussions, so that they have yet another opportunity to make good on their deal with us.
3) Re-file cases where we are not able to come to an agreement, giving people an opportunity to change venue to Champaign county by mutual agreement.
You can read my full correspondence with Mr. Toeppen here. On the one hand, Suburban Express is taking a certain amount of responsibility and responding to complaints. On the other, Mr. Toeppen is indulging in something he's previously done in statements to the press: pointing fingers and taking shots at others.
We're going to have to take a close look at our ticketing/admission/accounting workflow. We started web ticketing back in 2008, and had very few fraud problems initially. But those are the good old days, it seems. Nowadays, we have frequent fraud. The problem has gotten much worse since our archrival, LEX Express, went belly up in December. I get a sense that LEX riders were accustomed to cheating LEX, and now we're dealing with them.
We would have preferred that Mr Leval gather information and report the incident to us, rather than creating a scene on the bus.
. . . and so on.
Lessons . . . If You Want To Learn Them
Right now, as a result of its conduct, Suburban Express' pool of potential customers is limited to people who have never heard of them. I didn't go to business school but I think that's not how marketing is supposed to work.
But has Suburban Express irretrievably beshat itself? I don't know, but it seems very likely. Mr Toeppen's emails to me — sent when he knew I was investigating the story from a First Amendment attorney's perspective, sent in an effort to get their side of the story out — don't bode well. It seems unlikely that Suburban Express can resist its pattern of lashing out. If they abandoned their current raft of litigation and started afresh, they might come back.
If they want to come back, they might think about a few lessons.
First, never miss a good opportunity to shut up. That may sound like a strange thing for a blogger to say, but I'm not running a public relations campaign. Most of the statements Suburban Express has made have served to inflame customers, not soothe them. An angry and defiant to a customer complaint — particularly on the internet — may be worse than no response at all.
Second, take some time to get a grip. You will not encounter a situation where waiting 48 hours to open your mouth will destroy your brand. But you will often encounter a situation where making a statement in the heat of the moment, without getting good advice, and without people convincing you not to talk like an ass, will ruin your reputation.
Third, know thy enemy. As I said in a recent article about the Streisand Effect in the Daily Journal:
Before sending a takedown demand to a web site, spend some time getting to know its culture to assess the probable effect of your letter. Some websites pride themselves in making rude public responses to legal threats. Other sites are frequented by free speech advocates likely to call attention to your demand letter. In 2012, an Arizona attorney sent a defamation threat to the popular webcomic “The Oatmeal,” only to find himself the subject of a brutally satirical comic that drew millions of views online, mainstream media coverage, and widespread denunciation. Don’t be in the position of telling your client [after the fact] “I didn’t realize this web site had a hundred thousand daily readers and a habit of printing and denouncing threat letters.”
Fourth, know what you are talking about before you talk big. Again from my recent article:
A legally unsupportable demand is far more likely to trigger the Streisand Effect. Bloggers love to call out lawyers who don’t know the law. To reduce your risk, don’t send a takedown letter until you have educated yourself about the law governing online content. For instance, too many lawyers threaten web sites based not only on content written by the site owners, but on comments left by visitors. But Section 230 of the Communications Decency Act dramatically limits a web site’s liability for comments left by third parties. See, e.g., [Barrett v. Rosenthal], (2006) 40 Cal. 3d 44 (2006). Similarly, too many lawyers don’t grasp the distinction between statements of fact – which are susceptible to defamation analysis – and statements of opinion – which often are not. California courts recognize that the internet Internet disputes produce exaggeration and fiery rhetoric, and are more likely to interpret online statements as mere insults or opinions rather than actionably false statements of fact. See, e.g., [Chaker v. Mateo], (2012) 209 Cal. App. 4thth 1138 (2012). Finally, too few lawyers are familiar with California’s anti-SLAPP statute, which allows a defamation defendant to secure a swift dismissal and attorney fees when a case lacks merit. Cal. Code Civ. Proc. § Section 425.16.
If you are new to this area of law, the Electronic Frontier Foundation (www.eff.org) and the Digital Media Law Project (www.dmlp.org) have excellent guides.
F. Scott Fitzgerald was wrong, or at least didn't anticipate modern America: there are second acts in American life. Just ask Mayoral aspirant Anthony Weiner. But if you're trying to sell something with an internet presence, it's much safer to the get first act right.
- The threatening letter is here. ▲
- That's called a contract of adhesion; whether it is enforceable is a subject too complex for this post. ▲
- Bear in mind I am a lawyer in Los Angeles. ▲
- Liquidated damages are damages that are specified at a particular amount in a contract in the case of a particular contingency. Their enforceability, again, is beyond the scope of this post. ▲
- Because Suburban Express' attorney was professional with me, I immediately wrote him and told him his client was corresponding with me. Usually you wouldn't want your client doing that and you'd be enraged if they did. Fucking clients. Here, apparently, it was deliberate. ▲
- The new terms remove the Ford County venue selection clause and the vague "pay $500 if you are rude" clause, but retains this: "You agree to pay any and all collection costs, including attorney's fees, should collection or other legal action become necessary." ▲
Last 5 posts by Ken White
- A Few Notes On Lois Lerner And The Fifth Amendment - March 5th, 2014
- LEAVE HOUSTON CITY ATTORNEY DAVID M. FELDMAN ALONE - March 4th, 2014
- The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich - February 27th, 2014
- Controlling Public Art By Lawsuit: Japanese-American Citizens Sue To Remove "Comfort Women" Memorial - February 25th, 2014
- Rep. Steve Stockman (R-TX) Files Highly Questionable Defamation Suit - February 23rd, 2014