Rate-a-lawyer site under attack
OUT-LAW Radio, 06/09/2007
We talk to both sides in a battle over a web-based system which
gives US lawyers a score out of 10 and we ask: can a number be
libellous?
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio, the weekly podcast that
keeps you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in depth features
that help you to make sense of the ever-changing laws that govern
technology today.
My name is Matthew Magee, and this week we referee in the
increasingly fractious dispute over a lawyer rating website in the
US.
But first, the news:
Google wins AdWords battle by default
And
Another Harvard student claims he invented Facebook
A US retailer has dropped a suit against Google which challenged
the trade mark policy of its keyword advertising system, AdWords.
American Blinds and Wallpaper Factory has withdrawn its long
running action against Google. ABWF had claimed that the fact that
Google sold the right to advertise beside search results related to
its name, constituted trade mark infringement. Google disputed this
and a court ruling could have settled the contentious issue. The
case will not now go to a jury trial which was due in November
after four years of litigation. Google has not changed its policies
or paid ABWF any money and each side will pay its own costs
according to company statements. The retreat will be seen as a
victory for Google and its profitable AdWords system which has
previously been challenged by several trade mark holders.
Another former Harvard student has come forward claiming to have
invented a precursor to social networking giant, Facebook. Aaron
Greenspan has written an unpublished book detailing his claim. Mark
Zuckerberg is the founder of Facebook, a company based on a social
networking site that was originally only open to college students.
Since opening its doors more widely a year ago it has been a hit
amongst older users in sites such as MySpace or Bebo. Zuckerberg
has said that he would not sell his company for less than $10
billion. Three former university acquaintances have recently
claimed that Zuckerberg stole the idea for Facebook from them when,
they claimed, he worked on their college social networking idea
ConnectU. Now Greenspan, another former student, has claimed that
the idea was his. Greenspan set up a Harvard-wide web system used
by thousands of students called houseSYSTEM in 2003, six months
before Facebook came into being.
That was this week's OUT-LAW news.
We are asked to read everything these days, from our supermarket
trip to the last CD we bought. The wisdom of crowds is being
harnessed so often it’s a wonder the crowds don’t keel over form
exhaustion. Web systems build ever-more accurate profiles of what
they think we might like so that shopping is now as much an
existential exercise in self-aware analysis as it is an attempt to
be less hungry or cold. One American lawyer saw such systems and
decided to take them farther. He has built a rating system for
lawyers. Seeing that there was a plethora of publicly available
information about every lawyer in the US, he decided to build a
system which collected and added to that with customer ratings and
scores for professional achievements. His name is Mark Britton, a
former general Counsel for Expedia. You have to admire his bravery.
He took the contentious, difficult concept of rating a professional
service and applied it to the most contentious, difficult
profession: lawyers.
With venture capital backing, he built Avvo.com, a system which
will give you a score for lawyers across the US. He told OUT-LAW
Radio that yes, he knew it would be controversial, but that he
wanted to help consumers who were both clueless and intimidated
when it came to picking a lawyer.
Britton: Consumers just don’t really know
what they are doing when it comes to this very difficult choice and
I, even as a general Counsel, as the Chief Counsel for Expedia, to
the extent that I needed to hire a lawyer outside of my word of
mouth network it was hard. We are building something to make
consumers’ lives easier.
Magee: Briton, who scores 8.6 out of 10 on
AVVO, explained how the system works.
Britton: Well, in the United States we
have State Bar Associations, we go to those Bars and its public
record and we collect that public record information and use that
to go out to the web and find information about each of the
individual lawyers. We lay that information that we find on top of
the public records and essentially build a profile for the lawyer
and then for the Avvo rating, we score that profile.
Magee: As Britton surely must have predicted,
there was an outcry when the site launched. Long-dead lawyers were
found to be rated, while struck off litigators received better
scores than Supreme Court judges such as Ruth Bader Ginsberg.
Briton says the site was a victim of mischievous research that
missed the whole point of the exercise which was to pay most
ratings attention to the kinds of lawyers that people actually want
to hire.
Britton: What was going on is we had some
detractors that were really building a bit of a sideshow. If you go
to our webpage today you will see that there are the top 20
practice areas. In the United States those practice areas currently
drive about 85% of the internet searches. We trained our crawlers,
our systems, we collected the most information on lawyers in those
areas. We did not spend as much time collecting information on
things like Supreme Court Justices because they are just not
representing your average consumer. I doubt that Ruth Bader
Ginsberg for example is representing too many consumers in traffic
ticket cases. So our detractors then, what they did is spent a lot
of time looking up those names, different attorneys that they knew
and they would say in our opinion, we feel that this lawyer should
be rated higher.
Magee: Rather predictably it was not long
before a lawsuit emerged. Steven Berman of Seattle law firm Hagens
Berman Sobol Shapiro who incidentally is rated a 10 on the site has
filed a class action suit on behalf of two other lawyers opposed to
the system. He told me what his objections are.
Berman: The basis of the suit is that Avvo
represents that it has objective scientific mathematically based
rating system for lawyers so that consumers can make an informed
decision. In fact there is not mathematical objective basis for
rating these lawyers. It is a hodgepodge of inaccurate and
unscientific information where lawyers on their own without any
prodding from us have put in information that is completely
unreliable, for example, one lawyer plugged in that he had won a
baseball award, best baseball player of the week, and his rating
went up, and then he plugged in MVP of the league for the whole
year and his rating went up. Obviously playing baseball and being a
successful lawyer don’t go hand in hand and it shows that the
system doesn’t produce accurate results.
Well, the fight has got ugly. Britton says that yes his system
does temporarily increase a lawyer score because of something like
their baseball performance, but that it asks lawyers to behave more
responsibly than to put them in there in the first place.
Britton: The lawsuit is a pretty silly
attempt to bomb us back to the stone age. It is true that someone
could come in and put a softball award or a fourth grade spelling
bee award in their profile and a human reviews that and because we
expect attorneys who uphold the law of the United States to act
appropriately we give them the minimum score for that industry
recognition. However if we find that it is a softball award or a
spelling bee within 24 to 48 hours, we then remove the points that
we had initially given the lawyer for that award.
Magee: The suit is not a defamation suit and
Britton is adamant that his system is protected by the US
Constitution’s guarantee of the right to free speech. The case
raises some very interesting questions about the increasingly used
scoring system. The UK has stricter defamation laws than the US.
Could putting a score on a professional service ever count as
defamation? Where would the line be: is a five out of ten a
defamatory score? Or a four?
I talked to Nigel Kissack, a litigation specialist at Pinsent
Masons, the law firm behind OUT-LAW, about where the rating system
could be libellous in the UK.
Kissack: In the case of an honest
comparison, then it is not likely to be defamatory of the lawyer
even if his reputation is diminished slightly or the business he
runs suffers by virtue of it. But the standards are different for
malicious falsehood, which is another kind of libel where any
malice would make damages recoverable for loss. It may well be
negligence if information is published without due investigation
from malicious contributors or reviewers perhaps. Truth is an
argument to any defamation case and in this context we could also
extend to the defence of fair comment where as long as honestly
held views are being expressed but there no issue of defamation.
But where it becomes malicious or grossly wrong, then the potential
must be there.
That's all we have time for this week, thanks for
listening.
Why not get in touch with OUT-LAW radio? Do you know of a
technology law story? We'd love to hear from you on radio@OUT-LAW.com.
Make sure you tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew Magee for
international law firm Pinsent Masons with very special thanks this
week to OUT-LAW stalwart Luisa Deas.
See: OUT-LAW Radio
