Bell Nunnally attorney
Ross A. Williams recently authored the
Law360 article “What To Do When Online Complainers Engage In Defamation.” In the piece he details the broad issue of Internet defamation – caustic, inaccurate and damaging online critiques and complaints – and provides strategies and resources to prepare for, address and minimize the impact of such activity.
Text of the article follows and can be found on Law360 by clicking
here.
"What To Do When Online Complainers Engage In Defamation"
We’ve all been there: A client calls; their business reputation has been smeared by an Internet reviewer with thousands of followers and an ax to grind. And if you haven’t been there yet, chances are you soon will. Online reputation is now routinely listed as one of the most important strategic risks large businesses face.
The Strategy: Consider the Facts and Tailor a Response
So how do you advise your client? First, ask questions so you can weigh the damage the complaint poses to your client against the cost, risk, and likelihood of success of a response. Your client’s input is key to striking the balance between those factors, which will determine the correct response.
By way of example, if (1) your client is a video game developer; (2) the complainer’s thousand followers are senior citizens; and (3) the complainer’s review does not appear on the first page of an Internet search result for your client, then the best response may be no response at all. Indeed, a response can trigger the “Barbra Streisand Effect,” whereby a defamation target’s response to a relatively ignored post causes that otherwise-unremarkable post to go viral. Picture the headline: “GameCo. Attacks Online Senior Citizen Community.”
If, however, the complainer is a professional gamer with most of the gaming community following him, then a carefully planned and timely response is crucial to protecting your client’s reputation.
The Tools: Assemble a Team and Pursue Removal
Assemble a Team
Through preparation, a war can be won before it is fought. A wise lawyer would be well advised to assemble a team now, in order to be ready to respond when the client’s reputation is attacked later. This team should consist of an online marketing consultant, an online reputation manager, a cyber investigator, the client’s in-house counsel, and you as the defamation attorney.
The reputation manager is your expert. Seek a reputation manager with experience giving expert testimony quantifying the cost of repairing damage to a business’s online reputation. Have the reputation manager select and retain the cyber investigator. Consult with the reputation manager about ways to approach specific websites if the situation calls for it.
You may not need your entire team in every case, but if you don’t have them when you need them, your client will lose valuable time and may miss out altogether.
Persuaded Removal
When the post appears on a site that allows the removal or editing of content, the most efficient and cost-effective approach may be to persuade either the complainer or the site itself to remove or edit the post. There are at least three general approaches for persuaded removal: the public response, the private response, and the website contact.
The Public Response
The business can consider responding to the complainer’s review on the site itself. This is not the place to appear defensive or to engage in a debate with the complainer; and the responsive post should be carefully crafted and vetted by the team.
A public response should show sympathy; make a statement of commitment to quality or excellence; offer a refund, replacement, or other incentive to rectify the problem; and provide a phone number for the complainer to call if they wish. The phone number needs to be for someone at the company who is aware of the situation and has the authority to rectify it.
When the complainer calls, the company representative should be ready to address how the situation might be fixed and ask the complainer to consider removing or editing their post if they feel that the situation has been rectified. If the complainer is reluctant to edit or remove the post, the representative should also be prepared to appeal to the complainer’s sympathies by emphasizing the company’s positive response, the significant negative effects the complaint can have on the company and its employees’ livelihood, and that, rather than deal with the negative consequences of the post, it is preferable for both sides to get what they want and go their separate ways. If the situation is particularly egregious, the client’s best approach may be to offer settlement in return for removal of the post and confidentiality.
If the complainer is stubborn, the online reputation manager may engage the cyber investigator to build a history of the complainer’s other reviews. Where those reviews largely mirror the complaint at issue or show an implausible history of complaints suggesting that the complainer is just working the system, it may be possible to use that information to persuade the complainer to remove the post, rather than use the company’s reputation as a pawn in the complainer’s game.
Time is of the essence with this approach. The public response may be most useful in a consumer products and services context.
The Private Response
Where a current or former employee decides to air their grievances with the client publicly, the private response may work better as a way to persuade removal. This is so because the client should be wary of the negative image created by responding publicly to what should be a private complaint about a private employment matter, and because the prior working relationship will have provided the complainer’s contact information. A private response even from the attorney under these circumstances is unlikely to elicit a “Big Brother is Watching Us” follow-up post.
Once contact is made, proceed along the same lines as the follow-up phone call in the public response context. But place special emphasis on the private nature of the employment matter and that it should be preferable for both parties to resolve the matter privately for reputational reasons.
As with the public response, swift action and a gentle touch are essential. If the complainer has posted in multiple locations, have the reputation manager set up monitoring to make sure that all the posts are down and that no new ones go up. If some are left up, then first ask the complainer if all of the posts have been removed, and only confront them with the remaining posts if they plead absolute ignorance. Even then, take the approach of “we believe you may have forgotten about these” rather than “we caught you.” Upsetting the complainer will likely lead to more complaints.
The Website Contact
Where communications with the complainer are not the best option or prove unsuccessful, contacting the website hosting the post provides another tool for persuading removal.
The site will probably ignore you if you threaten legal action for hosting the post because Section 230 of the Communications Decency Act (47 USC § 230) broadly protects websites from liability for hosting prohibited speech. One general exception to that rule exists where the website edits or comments on posts in a defamatory way.
A better approach is to look at the site’s standards and terms of service to build a case that the post at issue violates them. Information from a cyber investigator as to any industrious pattern by the complainer may help show a violation if the site’s standards frown on use for a commercial purpose.
Other specific types of sites may respond best to a different approach. Social media sites are often most concerned with fake user accounts. A cyber investigator may provide details about the complainer’s true identity. Reference-type sites worry about the reliability of the post and about biased attack posts.
Generally, websites will remove content that violates copyright or trademark, threatens violence, contains child pornography, contains obscenity, constitutes a false impersonation, contains confidential information, constitutes cyberbullying, or has been ruled defamatory by court order. Many websites will not honor a default judgment unless the judgment holder also goes through a process that often entails posting the judgment as a comment to the post at issue and receiving no response.
The website contact approach is best combined with a play for sympathy that points out the potential damage to the company’s reputation and the cost to repair that damage, especially where the question of whether a violation has occurred is a close one. If the website determines that the post should not be taken down, then you may also request that the website at least place a "robots exclusion" on the search so that it does not appear through traditional Internet search means. You might also request that your client’s name be removed from the post or that the site edit the post to reflect developments in the situation.
Coerced Removal
If persuasion is ineffective, then coercion may be necessary. Below are some tools that may be employed.
The Cease and Desist
The cease-and-desist letter is a well-known tool. As always, legal threats should not be made in a cease-and-desist letter unless there is a legal and factual basis for them. Because this situation is already public, careful thought should be given to whether the letter, if posted publicly, will make the company look like the victim or like Goliath. If the cease-and-desist letter seems like the best approach and the client is willing to incur the upfront expense, then pairing it with a persuasive draft complaint can, in certain circumstances, be particularly effective.
When a post goes viral and contains your client’s copyrighted or trademarked intellectual property, then a cyber investigation or search company can provide active monitoring of whether the content is spreading and where cease and desist letters need to be sent.
Trademark and DMCA
Websites are sensitive to intellectual property violations because Section 230 of the Communications Decency Act does not protect against liability for those violations. If a post includes your client’s trademarked or copyrighted material, then the website can be persuaded to remove the post, lest it be seen as engaging in contributory infringement.
The Digital Millennium Copyright Act passed in 1998 as part of Title 17 of the U.S. Code. It supports copyright holders in their attempts to control access to, and downstream use of, their content. If the post includes your client’s copyrighted information, a DMCA notice to the website can often spur removal of the post. The client can also seek to obtain the copyright to the photo, to the offending article, or even to the post itself. Obviously this tactic will typically require negotiation and potential payments for the transfer, but once the copyright is obtained, DMCA takedown notices can be sent to the offending websites.
De-Indexing
If the website will not remove the offending content, then search engines can be approached about de-indexing the content. They typically require a court order declaring the content defamatory or otherwise unlawful — and they don’t always honor default judgments — but this can be addressed with the search engines case-by-case. Search engines may also be more amenable to de-indexing outdated posts when the underlying situation has changed.
Lawsuit
A lawsuit against the complainer is sometimes the only option, or may otherwise be necessary to gain information about the poster’s identity. As alluded to above, it may also be the necessary first step towards obtaining the court order that some sites require before taking down a post. If the poster is attempting extortion, has a grudge, is a former business partner, or is a competitor, then a defamation- or Lanham Act-type claim is more likely to be successful. Damages can be quantified by having your online reputation manager opine as to the damage to the client’s online reputation and the cost of repairing it through online ad campaigns, counter-stories, and other initiatives. An economist may be needed to quantify the damage the reputation manager says occurred through the post itself.
The tools in this developing area will change as time goes on, and a certain degree of creativity within the bounds of the law may yield fruit. Ultimately, though, the attorney’s job will be to assess the situation and act as the carpenter selecting the right tool for the job, rather than the saw approaching every problem as if it is a board.
Originally published on
Law360, Oct. 8, 2015. Posted with permission
Ross Angus Williams