Blogger Sued on Trade Secret, Libel Charges; Liability Unclear

“The complaint is so vague it’s hard to know exactly what I'm being sued for,” Wall told us: “I was told [the evidence] was too voluminous to tell.” Wall said he’s also confused by the timing of the cease & desist and lawsuit: “Most of the stuff’s been posted on my site for 6 months or a year.” Comments on the site about Traffic Power are harsh, but they are “just people leaving their opinions, and other people are leaving their experiences” with the firm, Wall said. Traffic Power needs to give him details if it wants him to remove content: “It’s so hard for you to verify [the legality of] everything” otherwise. Attorney Max Spilka, representing Traffic Power, declined to discuss details of the case against Wall.

“The company tried to handle it without going to court,” asking Wall to remove the posts and comments containing trade secrets and libel, a Traffic Power spokesman told us. The attempted negotiations explain the disparity between the date of Wall’s early posts and the cease & desist, he added: “We have phone records” documenting Traffic Power efforts to talk to Wall before filing the C&D and suit. “It would have been obvious” to Wall what material on the site contained trade secrets or defamatory statements, he added. “He either maligns us or worse… or he posts” Traffic Power correspondence, showing bad faith. The spokesman cited one hostile comment by Wall about Traffic Power as evidence of many more that are legally actionable, but declined to give details on what the firm considers trade secrets or libel.

Wall thinks the case might have arisen from a post he wrote in May 2004 after receiving a cold call from a Traffic Power salesperson, asking if he would like the company to improve his site’s search ranking for a fee. His site at the time was “a hunk of crap,” leading him to think poorly of the company: “Would you bet your financial future on a random telemarketer who knew nothing about marketing or your life?” A post from “aaron wall” dated Sept. 19, 2004 said: “I am not a competitor so much as I do not like idiotic high pressure salesmen calling me to try to sell me shit services… and since you called me personally to promote a bad site I know your services must suck” (ellipses in original). Wall didn’t dispute he wrote the comment. Others commenting at SEOBook.com have pretended to be Traffic Power officials, who have never posted on Wall’s or any other SEO site, the spokesman said.

In other posts Wall has alleged Traffic Power, also known as 1P.com, created an “absolutely fake forum” for SEO discussion to push its services, calling the effort “pathetic.” He said the tactic was “to try to make all SEO forums look deceptive and sneaky” so Traffic Power and others “can be at a level bar with respectable SEO firms.”

The spokesman said Wall has removed much of the content the company considered legally actionable, and uses code to block the Wayback Machine -- a website that caches pages -- “so a lot of the stuff we had to save.” Wall disputed the claim: “So far as this case is concerned I deleted nothing from my website.” He added that other search engines can cache his site, and he showed us a page cached by Google: “Many of the useful bots that help potential site visitors are still caching my site.”

Traffic Power has many critics who call its SEO tactics inept or unethical. The firm is suing TrafficPowerSucks.com, whose anonymous creator claims to have lost $4000 to Traffic Power for services not provided. In an update dated Aug. 18, after receiving notice of the suit, the creator said: “I called the lawyer and asked him exactly what information he was referring to. He had no idea what I was talking about.” Search engine observers seem to be leaning against Traffic Power in the dispute. “Whatever reputation improvement Traffic-Power thought it might be gaining through such an action has just gotten worse,” Search Engine Watch editor Danny Sullivan said: “Small sites may react to the chilling effect of being sued.”

But Wall has critics, too. Daniel Brandt of Google- Watch.org, a critic of the search company, said Wall has used Brandt’s name to pull up SEOBook.com in Google search results by exploiting quirks in Google’s algorithms. “In taking advantage of Google’s incompetence, Mr. Wall knew exactly what he was doing and why he was doing it,” Brandt wrote in Sept. Wall advocates bidding on the names of SEO experts for websites to get higher page rank, he added.

Wall’s liability for comments left by other posters is unclear. The Communications Decency Act has been interpreted to protect providers of online services from content posted by others, including in a 2003 U.S. Appeals Court, San Francisco ruling.

But some think comment moderation itself can lead to liability. Intuitive Systems principal and business blogger Dave Taylor said Wall made himself vulnerable by altering comments in any way, even by deleting comment spam. Such editing means “you stop being able to defend yourself as a common carrier and become a publisher who is, indeed, liable for the content that they publish.” He analogized the situation to the difference between AT&T, Dish Network and Comcast on one hand, and Clear Channel on the other, which is “reputed to axe certain programming if it doesn’t meet their programming guidelines,” theoretically making them liable for anything they broadcast. Taylor said the incident should be a “wake-up call” to business bloggers such as himself to formulate comment moderation policies.

The basic shield for ISPs should extend to bloggers in a case like this, said John Palfrey at Harvard Law School’s Berkman Center. That no similar case has been litigated makes this one thornier, he told us. The trade secrets issue adds briars to the thicket of Web law, in which multiple doctrines intertwine, Palfrey added.