INTERNET
DEFAMATION:
Considerations
for Lawyers
Presented by Erik S. Syverson,
Miller Barondess, LLP
and
Who We Are
Erik S. Syverson/Miller Barondess LLP
Internet Law Attorney
Partner at Miller Barondess LLP
10 Years of Litigation Experience
Practice Based in Los Angeles
Handled Dozens of Internet Defamation Cases
Clients:
Small to Mid-Market Companies; C-Suite
Executives; Financial Services Professionals;
Professional Athletes; Entertainers.
The Reputation Management Mission
We believe that people and businesses have the right to control:
•
Their online reputations
•
Their personal information online
•
The impact of the Internet on their lives or businesses
We have developed proprietary and patented approaches to:
•
Remove private information from the Web
•
Promote or demote content in search results
•
Create new, highly ranking content
•
Help businesses improve their
online reviews
Who We Are
• August Capital
• Kleiner Perkins Caufield & Byers
• Bessemer Venture Partners
• Jafco Ventures and others
• Over $67 million in venture funding
Support from top
venture firms:
Industry pioneer:
• First in the online reputation management
and digital privacy space, launched in 2006
• Coined the term Online Reputation
Management
• Multiple patents issued for reputation
management technologies
Large customer base: • Customers in 100+ countries
• 3,000+ enterprise customers
• Over 1 million consumer users
Press & Awards
2011 WEF Technology
Pioneer Award
2011 Gartner Cool Vendor in
Risk Management and
Privacy Award
How important is
online defamation?
Statistics on online reputation
70% of consumers use online reviews to find local services, like lawyers.
(Search Engine Land, 2011)
Each star in a typical online business profile leads to a 5–9% difference
in revenues. (Harvard Business Review, 2011)
80% believe online identity is now as important as “offline” personal or
professional reputation. (Intelius, 2010)
70% of employers have rejected an applicant due
to information they found online. (Microsoft, 2010)
More than 80% of reputation damage risks
come from a mismatch between the buzz and
the reality. (Digimind, 2010)
How search results are interpreted
53% of users do not go past the first 2
results for any given search.
(Google, 2009)
89% of users do not go past Page 1 for
any given search.
(AOL, 2010)
You are judged
primarily by the
first page of
search results.
A few real-world
defamation examples
Lori A. Cruz
Critical blog postings
Prominent bad reviews
(another critical source
called on people to make
an effort to give her bad
reviews)
Amanda Williams
•
Judge Amanda Williams sued radio
host Ira Glass for libel after his
investigation criticized her
approach to drug prosecution
Critical blog and Facebook
group appeared
Timothy Thurman
•
No apparent libel: attorney Timothy D. Thurman
arrested for mortgage fraud
Again, critical blog posting
Timothy B. Thurman is completed
unrelated to this issue
Yet the search results do not make
the distinction clear
Prominent bad reviews and
coverage of the fraud allegations
Cursory analysis
•
The first two examples present with plausible libel cases:
1. Lori A. Cruz: author of www.lachildsupport.org directly attacks her character
2. Amanda Williams: engaged a libel action against Ira Glass
•
The third example does not present with obvious libel
3. Yet Timothy B. Thurman has suffered collateral damage to his good reputation
•
Defamation on the Internet can take several forms:
1. Lori A. Cruz: libel perpetrated entirely via the Internet
2. Amanda Williams: libel from the “offline” world being amplified online
3. Timothy B. Thurman: accidental non-libelous association causing damage to
one’s reputation
Legal recourses
Libel v. Libel per se
45. Libel is a false and unprivileged publication by writing,
printing, picture, effigy, or other fixed representation to the
eye, which exposes any person to hatred, contempt,
ridicule, or obloquy, or which causes him to be shunned or
avoided, or which has a tendency to injure him in his
occupation.
45a. A libel which is defamatory of the plaintiff without the
necessity of explanatory matter, such as an inducement,
innuendo or other extrinsic fact, is said to be a libel on its
face. Defamatory language not libelous on its face is not
actionable unless the plaintiff alleges and proves that he has
suffered special damage as a proximate result thereof.
Special damage is defined in Section 48a of this code.
California Civil Procedure Statute §§ 45 & 45a
Other Claims Associated with
Defamation:
• Emotional distress
• Trade libel: publication of a false statement of fact that
is an intentional disparagement of the quality of the
services or products of the plaintiff’s business and that
result in pecuniary damages to the plaintiff
• False light: invasion of privacy claims which involves
presenting a person in such a way that leaves a
negative and inaccurate impression about that person
• State Unfair Competition Laws
• Lanham Act of 1946
Relief Available
Specific Damages: all damages alleged and proved that
plaintiff has suffered in respect to his property, trade,
profession or occupation including such amounts of
money as the plaintiff alleges and proves he has
expended.
General Damages: damages for loss of reputation, shame,
mortification and hurt feelings
Injunctive Relief: removal of content (due process
challenge)
Exemplary Damages: damages which may be in the
discretion of the court or jury to be recovered in addition
to general and special damages for the sake of example
and by way of punishing a defendant who has made the
publication or broadcast with actual malice.
Hiding Behind Screen Names and
Aliases
• Anonymous Tortfeasors
• File John Doe Lawsuit
• Get Leave of Court to Serve Subpoenas on ISP (internet
service providers) related to the content
Start where website content appears
Retrieve server logs and IP data (IP data can be
used to identify ISP)
Serve Subpoena on ISP for account info
Communications Decency Act§230
.
Internet Service Provider (“ISP”) immunity for bad acts committed
by users so long as the ISP remains passive
Suing the ISP or website
Common venues for online defamation
• Facebook
• Twitter
• Blogger Services, e.g. Google Blogger, WordPress
• Yelp
• Professional Sites, e.g. Avvo, Rate MD’s
• Investor Sites, e.g. Yahoo! Finance , Investorhub
• Consumer Complaint Sites, e.g. Ripoffreport, BBB Trustlink
Common Defenses
• Anti-SLAPP Statutes
• Truth
• Procedural Challenges, e.g. Jurisdiction
• Opinion
• Parody
• Retraction
• Public Figure Limited Purpose Public Figure
• Litigation Privilege
• First Amendment Right to Anonymity
Litigation Advantages
• Monetary Damages
• Typically if a wrongdoer has money, insurance or is a
viable business competitor
• Permanent Removal of the Defamatory Content
• Voluntary by Defendant
• Settlement or Court order – injunction
• Public Relations
• Taking steps to protect reputation and brand
• Strategic
• Lawsuit sends message to future tortfeasors
Litigation Disadvantages
• Tough to prove damages nexus to the defamation
• General damages a roll of the dice with a jury
• Prior restraint principles may prevent courts from
demanding that libelous postings be taken down
• Third parties sympathetic to the tortfeasor may repost
the original libel
• Online backlash to legal action may be worse than
the original offense (Amanda Williams)
• May be unable to identify anonymous tortfeasors
Complimentary &
Alternative Approaches
Benefit from the psychology of search
•
People focus on the first page of search results, so what happens there is most
important
•
Use technological solutions to control what people are most likely to find
•
Can complement or replace litigation: assess the pros and cons of the situation:
1.
– Tortfeasor is powerful and sympathetic in the eyes of the public (e.g. Ira Glass)
– Libel is unlikely to cause ongoing harm
•
May be more appropriate focus on suppressing the defamatory statement
2.
– Tortfeasor is not sympathetic and/or relatively obscure
– Libel may cause ongoing harm
•
A stronger focus on litigation may make more sense
3.
– There is no tortfeasor
– You have suffered collateral damage
– No legal recourses are available
•
An entirely technological approach may be the only option
Suppressing online defamation: best practices
•
Prevention is more effective and less expensive than treatment
•
Empty search results create vulnerability
•
Aim to control as many of the search results as possible
– Diversity is important: aim to control several types of sites
•
Avoid clicking on negative/critical websites, which increases their relevance
•
Be proactive with online reviews
Top 5 tips for controlling online defamation
1. Claim www.yourname.com (and www.yourfirm.com if you don’t have it).
– Get multiple versions of your name if you can
2. Fill out profiles:
– law-industry listing sites: Martindale.com, Avvo.com
– review sites: Lawyerratingz.com, Yelp.com, Google Places
– social media: Facebook, LinkedIn, Twitter, Google+
3. Start a blog on WordPress, Blogger, or a similar platform. Publish information of
relevance to your practice.
4. Develop a strategy for dealing with reviews (more
to come).
5. Google yourself regularly so you know what’s out
there.
Top 5 tips for handling online reviews
1. Try to catch issues before they get posted online
– Set up a phone number or Web form for complaints or concerns
– Add client satisfaction “check stops” throughout the relationship
– Give your clients a chance to vent frustrations: anonymous or face to face
2. Gently encourage clients to visit review sites and leave their opinions
– However, never ask for a good review and don’t offer incentives
– Display positive reviews and their sources on your website and in your office
– Hand out materials that encourage clients to review you
3. Respond tactfully and objectively to negative feedback
– Don’t take it personally
– Thank them for the feedback
– Provide method for offline contact
4. Learn from accurate criticism
– Don’t try to provide excuses
– Try to resolve the issue (if appropriate)
– Put procedures in place to prevent similar mistakes in the future
5. Link to positive reviews
– Helps people to find good information about you
– Encourages others to write good reviews
– People trust online reviews more than any source except word of mouth
Getting professional help
Cost: $1,000 to
$15,000/year
Create & publish
new content,
improve search
results
Professional,
relevant Web
copy designed
for your niche
Published
strategically
across a wide
range of
websites
Analysis of
your online
presence
Proprietary
and patented
technology
Access to
experienced
reputation
advisors
Cost:
$99/month
Multiple
review
sites
Analytics &
statistics
Conglomerated
recent reviews
Track & manage
online reviews
Review
improvement
tool
Auto or custom
templates
Provide review
instructions for
multiple sites
Personalize
templates
Organic Search Remediation
• Boutique, white-glove approach
• Content creation not mandatory
• Technology built to order
• Highly resource intensive
• Personalized service
• Frequent status updates
Cost: $10,000 to $100,000/month
Engagement length 12–36 months
Autocomplete/“Suggested” Remediation
• Fix Google “Suggested”
(Autocomplete) results
• Remove unwanted terms
• Control what searchers find
Negative results like this:
Transformed to this:
Cost: $10,000 to
$1,000,000 per issue
Forbes Magazine
Dark Side of Reputation Management – How Companies Now Know Everything About You
Reputation Management Company is featured in this issue-defining cover story about online privacy
and the dangers of personal data collection online.
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