Google has been shamed into responding within hours to the threat of a $100 million lawsuit from lawyers representing “over a dozen” female celebrities, actresses, models and athletes whose photographs were recently hacked from their iCloud accounts and posted on various websites and blogs. Most of the photos had depicted the women “in private settings, while nude or semi-nude, engaging in private intimate conduct”.
Only a great legal letter of demand can lead to such swift action.
This was a fabulous, flamboyant letter. Here is a link to it.
Who is Martin D. Singer?
The law firm Lavely & Singer, based in Los Angeles, has for decades protected the interests of Hollywood celebrities. Martin D. Singer, one of the firm’s founding principals, has been at the forefront of almost every significant battle involving his A List client base. Marty’s own words hint at his success: “We’re one of the few firms that sue; we don’t just send a letter”.
So, when Messrs Larry Page, Eric Schmidt, Sergey Brin, David Drummond, Kent Walker and Harris Cohen received a Marty Singer zinger on 1 October 2014, they knew better than to ignore it.
Within hours, Google had responded. Admittedly, it was not a groveling apology. However, it was a remarkably swift turnaround for the search engine behemoth. According to a Google spokesperson:
“We’ve removed tens of thousands of pictures — within hours of the requests being made — and we have closed hundreds of accounts. The Internet is used for many good things. Stealing people’s private photos is not one of them.”
The law is a minor player in a great letter of demand
Was it the sound legal argument that made the letter so effective? Of course not. Getting the law right is essential to a competent demand, but not a great one.
So let us get the legal issues over with quickly. In short, if you are an Internet search engine, the Digital Millennium Copyright Act (DMCA) gives you the benefit of the doubt for the content you carry. Just like a telephone line, Google and other Internet Service Providers (ISP) are categorized as the ‘pipe’ carrying the content. For further information on the DMCA, see here.
However, this privileged position is conditional on the ISP being unaware of the content’s character. As soon as it is brought to the ISP’s attention that the content is unlawful because it, say, breaches copyright or privacy laws, the ISP must take it down or be liable for the consequences.
The grey area for Google concerns whether or not something is actually unlawful. It is all very well to be told to take something down because it breaches copyright or privacy laws, but Google cannot be held hostage to mere assertion. It engages in its own independent assessment of these issues which partly explains its delay before taking action. Google also tends to interpret the law narrowly, to minimize the content it must remove.
In setting out the legal position, Marty Singer relied on the “dozens” of notices previously sent to Google about the matter to illustrate its “actual knowledge” of the hacked photos and their locations.
The elements of great letter of demand
A letter of demand containing a nice legal discussion is hardly a recipe for a viral sensation.
So what makes a great letter of demand stand out?
Marty Singer’s letter contained all the elements.
First, the author knew his audience.
Would you write a grandiose letter of demand to a local Rotary Club, or to someone who had likely made an innocent error? Of course not. A phone call or friendly email would be the best way to start.
However, what if you are writing to an Internet giant worth billions of dollars?
This was no David and Goliath letter, it was a Goliath and Goliath letter. Consider paragraph one. This is what it contained:
- The lawyers were introduced as “litigation” counsel. [More than just lawyers, these were lawyers who sue people a lot.]
- They represented “over a dozen” female celebrities. [One celebrity a media crisis hardly makes. But over a dozen?]
- Google’s conduct was said to be “despicable and reprehensible”. [In other words, Google was really bad.]
- Google was said to be “making millions and profiting from the victimization of women”. [This speaks for itself]
- Its behavior was said to be “blatantly unethical”. [Not just ‘unethical’ but ‘blatantly’ so.]
And that is just the first paragraph!
Secondly, the author knew what would hurt most.
That, of course, is the hip pocket. The claim was for One Hundred Million Dollars. This was also helpfully described in the letter as “$100,000,000”, just in case the reader was hopelessly confused as to the meaning of One Hundred Million Dollars in plain text.
It seems a little unlikely that this round figure was arrived at scientifically, even accepting it included both compensatory and punitive damages.
Rather, it was more in the vein of someone sending an email in bold capped shouty text about their legal intentions. ‘We are going to sue you for lots and lots of money’ was the point.
Thirdly, and most importantly, the author created an atmosphere of shame.
This is the secret to the very best kind of demand. It is possible to laugh when your mother breaks her wooden spoon over the back of your leg. But when she says she is disappointed in you? Only then does the stomach start to churn.
This letter pulled out every trick in the disappointment book.
Marty Singer said:
- Google was the only company out of many others (including Twitter…) failing to comply with take-down requests.
- Its conduct was unconscionable for a company that boasted its conduct should be “measured against the highest possible standards of ethical business conduct”.
- Google had chosen to protect its revenue stream partners to protect multi millions of dollars on a weekly basis over the rights and protection of individuals.
- Google was perpetuating the despicable conduct of habitual “pervert predators”.
- Google’s “Don’t be evil” motto was a sham.
- Google was just like NFL, which turned a blind eye while its players assaulted and victimized women and children.
- Worst of all (here is the kicker): “If your wives, daughters or relatives were the victims of such blatant violations of basic human rights, surely you would take appropriate action.”
Accordingly, if ever writing a letter of demand, or signing off on one, consider whether the ‘Marty Singer elements’ are there.
Be mindful of limits
It is very important to be proportionate.
Marty Singer himself almost learnt this at his peril, after one of his former letters of demand became the subject of litigation for civil extortion.
In addition to the usual criteria, that letter included a claim that the recipient was “using company resources to arrange sexual liaisons with older men such as ‘Uncle Jerry,’ Judge [name redacted] a/k/a ‘Dad’ (see enclosed photo), and many others,” further suggesting, “When the Complaint is filed with the Los Angeles Superior Court, there will be no blanks in the pleading.”
See Litigation and Trial blog for the full discussion.
Ultimately, that letter was found to be on the right side of the line. Just.
When writing a letter of demand, or signing off on one, ask:
- Is the tone appropriate to the audience?
- Does it focus the reader on what will hurt most?
- Will the reader feel embarrassed and ashamed by what they have done?
If the answer to these questions is ‘Yes’, then it is a seriously good letter of demand.
If it is proportionate, then it is also a responsible one.