Remember I am not a lawyer, and this is a stong opinion piece.

I am trying extremely hard to create an assertion of fact dressed up as an opinion

ePerks Are Suing Vlad

I found out on Saturday from Vlad that he is being sued by ePerks.

Here are the documents served on Vlad.

Just a quick note for anyone who shares this document, it would be well worth modifying it to include some keywords in the links that Scribd inject. I should have also suggested to Vlad that it be prefaced with some links to relevant discussions.

<a href="http://www.scribd.com/doc/3271851/Barabus-vs-Zablotskyy">ePerks - Brabus vs Zablotskyy</a> - <a href="http://www.scribd.com/upload">Upload a doc</a></div><div style="display:none"> Read this doc on Scribd: <a href="http://www.scribd.com/doc/3271851/Barabus-vs-Zablotskyy">ePerks - Brabus vs Zablotskyy</a>

It is interesting to note that for some reason Brabus are looking for punitive damages and claiming malice, and they have confined the case to the way Vlad defended his family name when he was attacked quite viciously on multiple websites suggesting he is/was a paedophile which as far as I know is untrue – Vlad has always come across as a kind and generous person.

This was particularly damaging for Vlad, he writes a pro-life blog, and is in the process of filing for adoption.

Vlad’s post in my opinion, and I have read it at least 20 times, doesn’t seem to directly accuse ePerks of anything, and would only suggest suspicion, but certainly not direct accusation, if the whole situation up until that point was taken into account.

At that time the suspicion was warranted, “Jaffar S” was using the same IP address in comments as people claiming to be ePerks employees, and others posting multiple positive comments, the same IP address range as I previously highlighted being used for ePerks shilling.

76.206.0.160 to 76.206.0.167 – I suggest anyon who has come into contact with ePerks in any way search their databases and email accounts for every IP address in that range – it may be vital evidence.

Ben Behrouzi claimed his company ePerks had nothing to do with the address range, and Vlad posted that information very clearly on his blog.
There was a little confusion though of which Ben might not be aware – though Vlad originally mentioned Texas, the IP range is actually tied to San Francisco and San Jose, where ePerks is located, and that is the area that lots of shill comments originated from as well.

As Trace points out about ePerks

Vlad made no accusations but simply presented anecdotal evidence indicating that ePerks was possibly linked to the false charges

Trace also goes into detail that the papers served on Vlad have no relationship with the previously sent Cease and Desist.

All of this is important, lets take a look at what I didn’t (deliberately) quote from the chilling effects article.

Question: If I write something defamatory, will a retraction help?

Answer: Some jurisdictions have retraction statutes that provide protection from defamation lawsuits if the publisher retracts the allegedly defamatory statement. For example, in California, a plaintiff who fails to demand a retraction of a statement made in a newspaper or radio or television broadcast, or who demands and receives a retraction, is limited to getting “special damages” — the specific monetary losses caused by the libelous speech. While few courts have addressed retraction statutes with regard to online publications, a Georgia court denied punitive damages based on the plaintiff’s failure to request a retraction for something posted on an Internet bulletin board. (See Mathis v. Cannon)

If you get a reasonable retraction request, it may help you to comply. The retraction must be “substantially as conspicuous” as the original alleged defamation.

Vlad very clearly posted the statement on his blog that Ben Behrouzi claimed the attack on Vlad’s character was nothing to do with ePerks.

ePerks – Brabus Ventures are suing Vlad under California law, and my reading of Vlad’s article on IP addresses is that that could be looked on as a very fair statement given equal weight in the public eye, even though (as far as I am aware) no request for a retraction was ever received from ePerks / Brabus Ventures.

In a similar light, ePerks at least on Vlad’s blog might be looked upon as a public figure – they paid him to write about them – one article opened Pandora’s box.

From Chilling effects

A public figure must show “actual malice” — that you published with either knowledge of falsity or in reckless disregard for the truth. This is a difficult standard for a plaintiff to meet.

How Can We Help Vlad?

Spreading the news – this affects all bloggers free speech.

Donations – Greg Swann has set up a donation fund for Vlad

Greg has created some logos / banners / badges along with donation buttons that can be easily syndicated and posted on your blog.

Support Vlad Zablotskyy’s Defense Fund
Defend your own right to free speech!

I might have arranged things and orchestrated things differently, using a dedicated site for the donations, and coordinated the release of information, but nothing can quell the desire to help Vlad in any way people can.

If you have come into contact with Vlad in the blogosphere, or support free speech, or are a parent disgusted at the way false claims can be made against people anonymously, or someone who understands how important a clean reputation is for adoption, you might want to consider a donation.

For bloggers out there, remember to use descriptive anchor text for every link

Blog Posts

I am going to start compiling blog posts of people writing about this horrible situation, especially where they add something significant to the conversation (lawyers, want a link? SEO help?)

Aaron Wall went through this in the past, and has noted that ePerks is going viral (the negative point of view)

Are eperks spammers?, by Lord Matt takes a look at “piles of poo” about ePerks, and a very clear statement of personal opinion from Matt – “I fully believe that Ben Behrouzi of Brabus Ventures (eperks) is both a spammer and an unpleasant human being”- the type of vernacular he normally reserves for the local council and utility companies.

Joe from Sellsius Real Estate is the first lawyer that I am aware to blog about this, and whilst of course this can’t be looked on as legal advice the discussion regarding the long arm of the law and personal jurisdiction in libel cases is extremely interesting.

I never thought I would see the day I would link to Ripoff Report, but someone seems to have listed a complaint about ePerks there. Please don’t add to the report unless your have a genuine complaint about their service.

Fortunately Susan Singleton, one of the UK’s leading experts on online marketing law, dropped by and left a comment…

I have been doing quite a bit of work on these regulations including putting on a conference with the UK Government representative who has been drafting and advising them – we are running it again on 11th June (www.singlelaw.com)….pause there and laugh because on 26 May when the UK version of the regulations are in force I will not be allowed to do that – merge the comment with some “advertorial” or subtle or not so subtle plugs for a service or product.

It will be a criminal offence but probably used as a last resort for persistent offenders.

A disclaimer will not work but if someone is outside the jurisdiction and happy to avoid holidays in the UK in future they may be able to avoid the strong arm of European Justice I suppose.

Concerns in the UK have been over issues such as are “buy one get one free ” (BOGOF) offers still okay – yes they are. Being careful however to make sure what is “free” is definitely free. Issues over conduct of salesmen who go door to door -so training for staff is useful under the new regulations. A couple of companies have asked me to do some training in house on the regulations. Also viral marketing is likely to be a problem under the regulations. The Government has issued guidance and also updated its general guidance on “Price indications” so anyone interested in how this affects pricing of goods should have a look at that too.

Since then I have done lots of research on the new laws, and Susan is the leading authority – I am not quite sure where she finds the time. She runs her own legal practice, consults many leading corporations in the UK, speaks at legal conferences on a frequent basis, and has 5 kids, many of which are still at school.

She has also listed as an author of 30 books, though a few of them were a joint effort. We are not talking ebooks, but real hard or soft cover books stocked by legal book specialists, Amazon, and every bookstore in between.

As Susan mentioned in her comment, she is holding a conference on 11th June which may be of interest

Conference Details

SINGLELAW CONFERENCE

Consumer Protection from Unfair Trading Regulations 2008

Business Protection from Misleading Marketing Regulations 2008

Wednesday 11 june 2008, London EC2

9.30am – 12.45pm (3 hours CPD)

From 26 may the new unfair trading regulations make major changes to the law on advertising and marketing. This half day course provides a comprehensive examination of the regulations

What they mean for your business
How advertisements are affected
What salesmen can say
Enforcement, potential fines and jail sentences

Presenters:

(1) Susan Singleton, Solicitor, Singletons, Chairman and speaker

(2) Peter deft, Berr (DTI) representative, who has responsibility for the new regulations

Susan Singleton is a well known commercial and competition lawyer running her own practice, Singletons solicitors. Author of 30 books she is a frequent speaker in the consumer law field and MONTHLY contributor to consumer law today and other publications. She has been writing and advising on the regulations since their origins as a draft eu directive.

AGENDA

9am coffee/tea
9.30am the consumer protection from unfair trading regulations 2008 and business protection from misleading marketing regulations 2008 – comprehensive examination of the new provisions in force from 26 may
Prohibition on unfair trading practices
Misleading practices
Aggressive practices
Protection for vulnerable consumers, marketing to children and the like
List of prohibited practices which are unfair – fake free offers, bait advertising, inertia selling etc
Practical guidance to avoid breach of the law
Repeal of principal provisions of legislation as diverse as major parts of the trade descriptions act 1968, consumer protection 1987, control of misleading advertisements regulations 1988 and the fraudulent mediums act 1951
Penalties for infringement
11am coffee
11.20am view from The Department for Business, Enterprise & Regulatory Reform
12 noon detailed question and answer session
12.30pm chairman’s closing remarks
12.45pm close of conference

Venue

Lion Court Conference Centre, 25 Proctor Street, London WC1V 6NY, Tel 020 7067 1126

Fee

£250 per delegate + vat = £293.75

(10% discount for each second and subsequent delegate)

(in-house: this course is also available in-house on request)

COURSE NOTES AND FREE LEGAL ADVICE VOUCHER: All delegates receive a voucher for 30 minutes’ free legal advice from singletons and comprehensive pack of notes including copies of the regulations and related materials

Delegates wishing to email questions and answers for consideration at the Q&A session in advance should email them to susan@singlelaw.com

CONTACT DETAILS:

Singlelaw, Tel 020 8866 1934 fax 020 8866 6912 susan@singlelaw.com www.singlelaw.com

________________________________________________________________

Booking form

Unfair trading regulations 11 JUNE 2008 (AM)

Delegate Name (s):

Company name:

Address:

Tel email

I enclose my cheque for £_____ payable to e s singleton

(10% discount for second and subsequent delegates)

— Post to Singlelaw, The Ridge, South View Road, Pinner HA5 3YD

A copy of this information with booking form can be grabbed here where I have posted it as a Google Doc

This Affects Me

Ever time I write an article promoting an affiliate product, I always have this in the back of my mind.

As an example I have been using quite explicit disclosure where free tools or content might be looked on as being “business to consumer” – if something is for making money online, it is business to business, but if something I am promoting could possibly be used by a consumer, such as an SEO tool, in my own mind I feel I have to be much more specific in my disclosure, even if that costs me in income, and I am sure it does.

I feel Google might even be crossing the line with their CPA based promotions for Firefox with Google Toolbar

It is important to look at both the intent and letter of the law – is something really free?

Most certainly these laws will have the biggest effect on those in the health market, and possibly their affiliates.

Short Notice

I dropped the ball a little on this.

This is a little short notice, but well worth while for anyone in the London area interested in safeguarding their online business, or that of their clients.
If you have legal advice on retainer, it might be worth suggesting your advisors attend… at their expense ;)

It isn’t actually that expensive… Susan typically charges £250 / hr for her consulting time… based on my experience she is under charging – during one major legal battle I was involved with 6 years ago we were paying a similar rate, though that was with a large legal firm.
Thus the bonus for attending, 30 mins or £125 of consultation time is very worthwhile.

One of the reasons why I am posting this is really to gauge interest – I receive lots of search traffic on legal matters regarding this, and other topics such as si3429.

Based upon the number of UK marketers who are still not conforming to the requirements of si3429, and the amount of self-promotional comments I still receive… and promptly delete, there seems to be a distinct lack of understanding.

At the same time, not everyone can afford to retain a qualified lawyer, especially a specialist in internet law as it applies to companies based in the UK or Europe.

The internet however gives us the possibility to disseminate specialist information in a much more convenience, and hopefully cost effective manner. Specialist training, videos, access to seminar recordings and specialist publications.

I can see a need for this, for my own business needs – is this something you need?

I estimate possibly 500-1000 of my subscribers are UK based, thus this effects them directly, assuming they have some online presence… a website, ecommerce store, blog etc… in fact bloggers might be least likely to have full legal compliance.

Many others offer “multinational” services, especially the big agencies, but might not have access to specialist legal information that might affect their clients.

Do you have your legal bases covered?

This was the whole point of a little experiment I helped Paul with over the last week, and the results are extremely conclusive. It is partially to do with the Krak.dk story I have written about in the past, but I think the results also paint a much broader picture.

Here is what I wrote before:-

Oh, and talking of trackback, I need to link to Irish in Denmark – this is actually part of an experiment with Google Bombing, and something else to prove a point that is highly valid and deserves some attention. I know exactly what is going on, and encourage others to link through to Paul using the same anchor text “Irish in Denmark”.

It should be noted that Pual doesn’t use nofollow on his trackbacks, so you receive a live link probably from another DNS C-Block. If you write a post about trackbacks as I have done, it is even a link that is LSI related.

Paul today has let the cat out of the bag, and written about the “sugar trap” terms of service he created to prove a point, and I believe the results are devastating.

1202 pageviews and 615 visitors NOBODY viewed the Terms of Service of the site they were on.

So how many people did he trap into linking to him, who if this was serious might owe him a significant amount of money?

The 50,000 Sugar Trap

Imagine doing that combining a little SMM on Digg, some great linkbait, and then clearing up! Welcome to scamming Web 2.0 style.

I am not sure how long this has been in the rules at Clickbank, as Clickbank currently block archive.org – that being said I am sure it would have been brought up by someone during the last few months in discussions regarding various paid review services such as PayPerPost, ReviewMe and Sponsored Reviews.

The A-List bloggers concentrated their attacks on the paid reviews services because it made good headlines, and most missed the much more serious implications for affiliate marketing.

Clickbank isn’t a small startup company looking to carve a niche – their daily sales turnover is probably higher than the funding received by any of the paid posts companies. It is only possible to estimate their sales figures, because they are a privately held company. They claim 20,000 sales per day on their website, and typical prices of their digital products are $47 to $67 each, with many of the top sellers costing $77 to $97.
In the past I have asked Clickbank directly for more accurate figures, but as is their privilege that was declined.

As an example, the current top selling ebook launched 6th February, Day Job Killer, an ebook that provides tactics for affiliate marketers using Adwords PPC to drive traffic to various affiliate merchants such as Amazon and Ebay has sold more than 5000 copies in the first 24hrs of release, with a $77+tax price tag, thats $385,000 in sales which many Web2.0 statups can’t achieve in advertising revenue in one month.

A large chunk of that revenue will go to affiliate partners, but that will easily be recouped by backend sales. As an example this is the 3rd Ebook published by the same authors, and I am sure many of the 5000 sales recorded were direct sales by the authors to their private mailing list.

I am not a lawyer, and this blog article is purely a discussion topic for your own amusement and does not represent legal advise.

Here is the specific clause from the Clickbank Rules:-

If you promote products listed by ClickBank, then:

* You agree to make no such promotions that suggest or imply any warranty or other policy that might conflict with ClickBank’s eight week return policy.
* You agree to make no such promotions that involve unlicensed use of materials protected by copyright or trademark law.
* You agree that you will not engage in activities that interfere with our tracking of commissions, or with the normal flow of traffic from affiliates.
* You agree that all such promotions will be fully compliant with federal and state laws, including US federal and state laws regarding network abuse, unsolicited messaging, and FTC Advertising Rules and Disclosure Rules.
* You agree to make no such promotions promising customers rebates, coupons, tickets, or vouchers in connection with their ClickBank purchase.

I have bolded the first line and 2 sections, and I will deal with the second section first

Offering Bonuses for Clickbank Products

The wording is clearly aimed at monetary bonuses as we expected the clarification in Clickbank rules from back in November to contain. Many Clickbank affiliates are still offering cash incentives as this advert for Day Job Killer grabbed yesterday confirms.

I have also received many emails offering cash rebates. With those who I trust and have business dealings with in the past, I just sent a friendly note. It is not like Clickbank send out email notifications of rule changes. In fact the rules changes don’t even make it to their internal news system.

Clickbank and Disclosure

I don’t remember seeing the statement regarding disclosure within the Clickbank Terms of Service when I was last reading them in November.
Whenever Google change their policy statements, everyone knows about it, and discusses it. When they change their Terms of Service, you normally have to agree to the changes, and there is normally word for word analysis by many sites.

The above clauses are clearly intended for affiliates, because the opening line is “If you promote products listed by ClickBank“.

The FTC Disclosure Rules don’t mention the word affiliate, but they frequently mention advertising. I am clear in my own mind that the rules cover both placement adverts, and various forms of word of mouth advertising.

For an Affiliate Marketer, I am fairly open about disclosure. I have a disclosure policy, and there is a link to my disclosure policy with my feed items, both in the form of a custom footer in my posts and RSS feed(Disclosure Policy Plugin for WordPress), and as a Feedburner Feed Flare. Those are my own developed solutions for affiliate disclosure as an alternative to adding (aff) after affiliate links, which might not have meaning to a casual reader.

As I pointed out in my fairly neutral review of Day Job Killer, it is important to conform to all the rules, and some of the techniques in Day Job Killer would be less successful if you plastered “I am trying to sell you something” all over a squeeze page.
I offered a bonus for Day Job Killer, but none are cash equivalents.

Duncan Riley’s research into one of the endorsements on the Day Job Killer sales page is also intriguing. There is also the possibility it is a real person, or a real testimonial with a made up pen name.

I just read a Squidoo Lens promoting Day Job Killer written by a Tax Attorney – it is a shame he is breaking Clickbank’s rules on disclosure, not a disclosure in sight.

It is interesting that Clickbank now require disclosure, and Google effectively prevent disclosure for their referral units.

I would be very interested in the opinion of some more legal experts such as Brian @ Copyblogger or Mike Young

This video was originally posted on the Google Adsense blog, and the presenter is Laura from Adsense Support.

Now I should point out that Google have been very clear in their wording with all the recent correspondence relating to Adsense changes, which in some ways makes this even more extraordinary.

The interesting bit in regard to financial declarations starts 1min:30 from the start.

It should be noted that this wasn’t recorded live, as you can see from the out-takes at the end, is in response to reader emails, and it seems that the responses were prepared prior to recording.

Here are some quotes:-

You should feel free to recommend and promote a product you are displaying a referral button for, but please don’t use language that implies that users should visit your referral site, or benefit you financially.

A later example also allows you to use the word “click” and give a strong recommendation – Word of Mouth Marketing

I use Firefox and use it to browse the web

I love Picassa, click here to get this great software

An example that would not be appropriate would be

click on these links to help me earn money

Now it was only a month or so ago that there was a huge amount of blogger attention regarding a letter issued by the FTC in regards word of mouth advertising. Many bloggers directed their attention to various paid blog post monetization models and said that this legislation was directed at them.
Many lawyers however also pointed out that this affected various forms of affiliate marketing.

Adsense Referral Unit (potentially) = Affiliate Marketing = Word of Mouth Marketing

So based upon that theory, anyone using Adsense Referral Units, and who in any way reviews a related product, or encourages someone to use a product that is part of the Adsense referral program showing on a page, should make a disclosure of some kind.

How This Might Affect You?

This actually depends on how you normally declare affiliate links when you are recommending a product.

Some of the recommendation links are very normal looking such as

Firefox with Google Toolbar (btw that isn’t a referral link)

Now I know many bloggers who would write something like this. They do that with every other affiliate link, so they should do the same for a Google one.

I Love Firefox, Click this link Firefox with Google Toolbar (aff)

But their readers understand that any link with (aff) after it helps to support the blogger. It isn’t quite “Click on these inks to help me make money”, but it is very close to that situation I am sure on many blogs, forums etc which have a very honest and open disclosure policy.

How about if you have a more general disclosure policy such as I have, or maybe a statement that your site is advertising funded, or a visit our sponsors section?

Adsense referral buttons are fairly inviting

You can obviously refrain from writing reviews about Adsense products, but it seems Google want to encourage WOMM (Word of Mouth Marketing).

If Google want to use WOMM, they have to allow their affiliates a free reign to declare they are being compensated for any referrals, however they like with no restraint.

I am actually quite happy with many of the changes that have been made with the Adsense guidelines. The Adsense team have been very forthcoming with information

I also know that a little guy is going to be more worried about complying with the Adsense policies and terms that this could easily be a major stumbling block in widely adopted disclosure.

Remember, I have a toolbar buttons site. One of the ways I intend to monetise that site is the referral buttons, especially when the new Firefox Google Toolbar comes out of beta.

Update: Google’s Dan Friedman has written a clarifying post on referral units that I had hoped would clear up this issue, but in all honestly it makes things even more confusing.
Clickbank now require affiliates to disclose, and Google seem to prevent that.

There is increasing talk about Google in negative tones as they increase in power, and with people’s increasing dependence on Google service, and in the case of webmasters, traffic from Google and income from Google Adsense.

So now a small Danish website, Krak.dk is trying to destroy their reputation, and attacking bloggers. Well small in the global scheme of things, probably quite large in their Danish niche.

For the full story, Paul has a great write up about this Deep Linking Fine a company is charging.

Note, they didn’t deep link to a picture, they linked to a page with lots of advertising on it, giving both traffic and link equity.
Note that they have no mention of their insane deep linking policy on the pages themselves, only in their help files.

That is what gives them a PR7, all that linking and trust.

Lets examine their external linking a little

First of all links to their domain at root level

Now lets look at their total links to the domain including deep links

The difference (119000-41100) is 77900 deep links that could potentially be subject to paying 940 USD

I can’t calculate (quickly) how many unique domains are within those links, and obviously I don’t know if some of them have already licensed being able to link to a page – what a horrible concept.
Then again there are probably a lot more pages that have not appeared in the listing because of duplicate content or maybe there is some funny linking strategy going on.

Lets look at Google

That isn’t very many quality links, how did they get PR7? Well maybe Google is a little broken currently… who knows?

Lets do some Math

We will assume 10 links per site because I am sure some people have been stupid enough to give them a sitewide link rather than from a contact or about page.

77900/10= 7790

Let us assume 1000 paying customers currently, though I highly doubt that

7790-1000=6790

That is 6790 website owners who are just about to be hit by a deep linking tax

6790 * 940 USD = 6,382,600 USD

That is a significant though in my mind highly dubious windfall

What can/should be done?

• people deep linking should remove the links
• they should probably make a post or comment stating why they did it, without a link to Krak as they don’t deserve link equity, as you can’t trust them
• if Krak is using your personal data, you might think about asking them to remove it – it would only take a few 100 removal requests for them to make a change in policy
• give your support to a competing service instead

If they lose half of their link equity, they are going to really notice a difference

What an interesting reversal on paid link, you have to pay them 940 USD to link to them, which of course I didn’t in this post.
Whatever you do, if you write about this story, don’t link to Krak – link to Paul, the Dog site with a word such as Hunde Blog – Kennel Kaarup, and the Digg Story

This isn’t just an off-beat thing in Denmark, something like this could happen in any country. Recently there has been a big discussion regarding linking to videos that are breaking copyright.

Here we are seeing someone being charged for linking through to information stored possibly about them on a 3rd party site. Damn that is ominous.

I am not sure how long the rules on Krak have been in place and how long the site has been deep linking, but imagine LinkedIn decided to charge a $1000 fee for linking to your own LinkedIn profile. I have suggested to Paul to go delving into archive.org

Dog Lovers Digg This (a link to Pauls Story not mine)

It affects you even more, and places you at a serious competitive disadvantage, if you are involved with Niche or Internet Marketing, in topics you don’t want your competitors knowing about, especially if click-fraud attacks are a danger.

2006 No. 3429
COMPANIES
The Companies (Registrar, Languages and Trading Disclosures)
Regulations 2006
Made – - – - 20th December 2006
Laid before Parliament 21st December 2006
Coming into force – - 1st January 2007

From SI (3429 of 2006)

Oops, It is Already In Force

This seems to have slipped in over the Christmas period and no one is talking about it, at least on the internet. I don’t have access to UK TV news stations regularly.

I found out about this on LinkedIn Answers – (login required to see original)

Here is the question from the LinkedIn Answers section plus the contact details of the person who posted it.

It was posted as a question on their new answers service by Mandy Webster a Legal Services Consultant and Contractor http://dp-smart.co.uk

Here is the content of the question

Are you aware of new required content for websites and email?

From 1 January 2007 a new SI (3429 of 2006) clarifies that websites and emails must carry full company registration details, that is full legal title, registered office address and registration number. So emails are now designated as ‘business letters’ for all you company secretaries!

The SI was sort of sneaked in towards the end of December and came in with very short notice but I have not seen much press coverage so far.

This seems to affect Ltd companies and up, so if you are a sole proprietor it might not affect you.

If you only have a few central websites, it isn’t going to be a major deal to comply. If you have 100s or 1000s it might represent a major problem.

It represents a problem if you are trying to keep your niche sites covert, to reduce competition.

There is probably a suitable way you can use my Disclosure Policy Plugin to link through to contact details. Remember this applies to emails. RSS feeds are sent via email subscriptions and if you use Feedburner, currently you can’t add an address to the emails sent.

In my opinion this is a bigger deal than the recent ftc problems.