Roca Labs’ latest entry in its endeavor to silence criticism is… creative.
After asking a Florida court for an order deleting posts about the company on consumer ‘gripe’ site PissedConsumer.com (denied) and deploying improper DMCA notices in an attempt to convince Google to remove links to the site (also denied), Roca Labs has now sued eleven John Doe defendants (i.e., defendants whose true names are unknown) in a Florida state court.
The complaint starts off as a claim for defamation, but then gets weird. Essentially, Roca Labs is asking the court to treat internet comments like real property, allow Roca to give notice of the case through publication, and declare the comments defamatory so that Roca can require search engines to remove access to the comments — if not the entire sites on which the comments appear.
The defamation claim should sound familiar by now: comments about the company’s nutritional supplement/goop are defamatory per se. Curiously, Roca does not appear to rely on the non-disparagement provisions of its contracts.
Although some of the comments are arguably defamatory (if false), many are classic opinion. Others are opinion based on fully-disclosed facts. Roca selectively quotes the complaints, depriving them of their context. While the complaint attaches the posts as exhibits, I’m told that the copy of the complaints is as illegible as the copy I have.
These are the complaints at issue. I’ve included, in brackets, some of the text excised by Roca, but feel free to click through to see the full complaint:
- “This product sucks.It’s expensive, horrible to drink & doesn’t do nothing.” (Calgary, Alberta — classic opinion);
- “[Evidently], this business is a total fraud. BEWARE!” (Location unknown — opinion based on disclosed facts);
- “Roca Labs – Got scammed and sick from this JUNK” (New York — opinion based on disclosed facts and/or hyperbole);
- “Roca Labs – Run don’t walk away from this one! SCAM!!” (Alabama — opinion base on disclosed facts and/or hyperbole);
- “The Company is full of lies and deceit” (Fort Myers, Florida — opinion based on disclosed facts and perhaps true);
- “DO NOT TRUST THESE PEOPLE. They are CROOKS.” (New Jersey — hyperbole, opinion based on disclosed facts);
- “Roca Labs – Don’t buy anything from Roca Lab they just sell a regular shake they are stealing your money. I have a friend working in the warehouse of this product, he told me that is unsanitary they dont use gloves and hair nets to assemble the packages wich comes with containers and spoons, and the product is a fraud doesnt work! My friends and I tried and didnt work for any of us!” (Palm Bay, Florida — likely hyperbole, but does state facts that could be defamatory if false);
- “Roca Labs is a SCAM” (Unknown location — curiously, Roca’s not alleging that the comments about Dr. Ross are defamatory);
- “Roca Labs- Product and company are PURE SCAM […] You have a better chance of feeling full if you swallowed a glass of liquid cement and let it harden in your stomach. Do not waste your time, energy or money on them.” (New Jersey — opinion based on disclosed facts, hyperbole);
Roca claims that these complaints have cost them “tens of millions of dollars,” and that because the speech is “commercial defamation”, it’s defamatory per se. If accepted, Roca’s invitation would mean that all consumer criticism is defamatory per se (meaning that some damages are presumed and need not be proven.)
Then it gets creative.
Roca is seeking an order requiring that, at Roca’s request, any “search engines, Web Hosts” which are provided with a copy of the injunction be required to “cease facilitating access to any or all websites through which Defendants post defamatory content.” While vaguely worded, if such an order were indeed entered, Roca could require a search engine to remove sites like PissedConsumer from their index. This will never happen.
While that request is vague, Roca’s declaratory relief cause of action expands upon it. Roca alleges that the internet comments are a “res.” That’s a term of art for real property (e.g., land and buildings) used in the context of determining whether a court has jurisdiction:
The Digital Defamation is digital property and should be considered a res which has been continuously located since the date of its publication in Broward County, Florida, as a result of its continuous publication or republication in Broward County, Florida through various internet search engines such as Google.
This would turn jurisdictional questions — whether the defendant can be hauled into a court in Florida for something they said elsewhere — on their head. This is insane.
Next, Roca Labs alleges that because the court has jurisdiction over these comments, and because the commenters are anonymous, the court should let Roca Labs give ‘notice’ to the defendants through publication. Perhaps you’ve seen, in a bygone era, the “legal notices” section of classified ads in a local newspaper or Penny Saver. That’s service by publication: letting someone know there’s a case against them that they should defend. This is a vastly disfavored method of giving notice to a defendant.
This gets to the heart of Roca’s goal:
Google has recognized that from time to time anonymous defamatory postings are published within its search pages. Google has adopted a voluntary policy that it will de-index (remove from its search algorithm and its search pages) defamatory postings from other internet service providers such as PissedConsumer.com so long as Google is presented with a judgment that the anonymous posting is in fact defamatory. If this Court enters an order finding the Statements posted by Defendants are defamatory, the Statements will only be removed by the search engine pursuant to its voluntary policy but will remain posted on PissedConsumer.com. […] In essence, this claim for Declaratory Judgment is merely requesting that pages containing the Digital Defamation be removed from the search engines, i.e., de-indexed. [The order] will not remove the commercially defamatory statements from PissedConsumer.com[. …] This scenario creates a defacto balancing test between the rights of the Plaintiff not to be defamed and the First Amendment rights of Defendants to be heard.
In other words, the complaints won’t be heard because they won’t be found. Sounds like a perfectly reasonable balancing test for speech to me.
In sum, it appears that Roca isn’t really interested in litigating against their critics. Although they state that they’re going to issue discovery into their identities, the complaint’s reliance on classifying the comments as ‘rem‘ property and insistence upon pursuing notice by publication suggest that Roca is seeking to proceed with the suit without serving or naming anybody, taking a default judgment when nobody appears, and then asking the court to wipe critical — and likely not defamatory — comments off of the internet.
Perhaps I’m reading too much into it, but Roca’s litigation history warrants concern.
(Many thanks to Andrew Schwartz for very quickly procuring a copy of the complaint!)