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Net Law Roundup #49

by Jeremy Malcolm, Internet lawyer

An interesting game you can play with Google is to use it as a "sucks/rules-o-meter". For example, type "Microsoft sucks" into the search engine (including the quotes), and see how many hits are returned. Then type "Microsoft rules" and do the same. This technique enables you to determine whether almost anything sucks or rules (for the record, the consensus seems to be that Microsoft sucks).

But seriously, what is the legal position of protest (or "sucks") Web sites, that assert that a particular product or organisation sucks, and explains why? Well, it presents a number of risks, but if you are careful you can legally publish such a site. Some of the issues to consider are:

  1. The domain name. There have been a string of cases determined under the arbitration policy that applies to most domain names (the UDRP) in which a domain name has not been allowed to stand if it uses the name of a company and adds "sucks", such as "bigcosucks.com". On the other hand there have also been cases decided the other way, so at present, the most that can be said is that there is a risk of losing the domain name if the company in question complains.
  2. Trademark infringement. You are generally not allowed to use the name or logo of a company in relation to goods and services of the same type that it offers. However you can use those trademarks without permission if your intention is simply to identify the company by its trademark and not to claim any kind of affiliation with the company. If doing this, you should include a note at the bottom of the page to attribute ownership of those marks to the company.
  3. Defamation. In most countries including Australia, a company, not just an individual, can be a victim of defamation. Defamation is a very complex topic, but in general if you make a statement on a "sucks" Web site that would tend to lower the reputation of the company amongst reasonable-minded people, then you could be guilty of defaming the company unless you can avail yourself of a legal defence such as "fair comment". In some States and countries, it is not a defence simply to say that your statement was true.

It isn't a bad idea, if you can afford it, to have a lawyer look over the content of a "sucks" Web site that you propose to publish, in order to ensure that you are not inadvertently leaving yourself open to legal liability. But having said that, you don't need to be too afraid that you will be prevented from having your say, provided that you go about it in a sensible and fair way.

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances