Know Your Enemy-Managing Online Reputation Involves More Than Just A Lawyer

Reputation has become an increasingly significant and increasingly fragile proposition in the age of social media, with brands and individuals being “made” and “broken” in the click of a mouse. It’s possible that you’re reading a pdf of this article on your iPhone, Blackberry, or other smartphone, which tells the story of the seismic change in the way we communicate and form opinions in the 21st Century – in the mid-90s and the wake of the dot.com bubble bursting, it may have been easy to think that the world wide web may not quite be the panacea that many predicted and that the voice of the web community would never carry far enough to be concerned with.

What a difference 15 years make. Although still an ecosystem which tends to boom and bust, the web has produced the world’s youngest billionaire in Marc Zuckerberg – owner of Facebook which as of February 2011 has 600 million users and was recently valued at $50 Billion. Google has become a household word and for many the gateway to the web, recently valued at $192 billion. Even Twitter, which is still developing its long-term business model, has been valued at $10 billion.

Businesses like these have changed how we consume news and opinion, mainly because, along with other online and social media platforms including blogs such as WordPress and the continuing evolution of print media into a new internet-based experience, any opinion is now easy to publish online and distribute to a potentially world-wide audience. That opinion then has a far better chance of making its way onto respected sites and even eventually into the wider media for one main reason – there is now far more “column” space to fill.

“Citizen Journalists” are increasingly feeding news from within Iran during the 2009 elections or from within Egypt during the collapse of the Mubarak Government. Not all of their content is benign, however, and the “democratisation of content” has also arguably led to a “democratisation of complaint”, not all of it justified.

A recalcitrant blogger or tweeter is not always an easy issue to deal with. Ask Dell – in 2005, anyone searching for the electronics giant online would have been easily directed to the “Dell Sucks” blog, set up by journalist Jeff Jarvis after a particularly bad experience with his laptop and a worse follow-up by their customer services team. For some time, anyone searching for Dell found Jarvis’ blog at the top of Google’s rankings and the experience ultimately forced a change in Dell’s business model after the launch of ideastorm.com – a website asking for ideas from their stakeholders on what the company should offer. Since then, Dell claims to have made over $6bn through Twitter alone; a far cry from a time they referred to as “Dell Hell”.

Online defamation is, therefore, not an easy crisis to manage, and occasionally there’s only so much that the law can do for you if online comments affect either your own or your business’ reputation. That said, a combination of knowing what options are available to you and having a “joined-up” PR and communications strategy can keep a momentary crisis from turning into a long-running drama.

Firstly, you’ll need to decide whether or not the content, allegation or statement in question is “defamatory”. The usual test is whether it “lowers you in the estimation of right-thinking members of society” – practically speaking, the content needs to make a “man in the street” think less of a Claimant or “expose them to ridicule”.

Then, you’ll need to know your enemy. The web can be an easy place to hide, so identifying the defendant is not always straightforward. If the comment in question is made on a website or via the online version of a national newspaper, then identifying a defendant and making a decision as to whether they can pay your costs if successful is easy. Even if they are anonymous (at least at first) and a website or platform refuses to disclose their details, Claimants can apply for a “Norwich Pharmacal” or “Motley Fool” order where a third party can be forced to disclose information in relation to a third party’s involvement in suspected harmful activity, which will include defamation. However, these orders are not always granted easily and can’t be used as a “fishing expedition” – they must usually be used (for example) to either identify a defendant, the full nature of their activities and to allow the Claimant to plead their case and even then will only usually be granted where the target is likely to have the relevant information or have been involved in the wrongdoing.

Recent cases have seen the Court find that as blogging is a “public activity” and rejecting an attempt by the Times to deny disclosure on the grounds of privacy (The Author of a Blog v Times Newspapers [2009]. However, where the bloggers in question have only posted messages of a more “trivial” nature, the Court may be more reluctant to disclose their identity and the recent case of MediaCAT v Adams et al. [2011] shows that it is more important than ever to approach a Norwich Pharmacal application with a decent case. MediaCAT dealt with the now-infamous peer-to-peer illegal downloading cases brought by ACS Law, with Judge Birss finding that, given that the Defendants could not be proven to have been liable for the downloads in question, future orders should be more closely scrutinised and effectively managed after grant.

So, once the Defendant has been identified, where next? After careful consideration of the expense and technical complexity involved in a libel claim, the first step is usually to send a “Letter Of Claim” under the Pre-Action Protocol on Defamation cases to put the case without the expense (at least in the early stages) of Court Proceedings. What happens, though, when the Defendant is based outside the UK?

Serving proceedings outside the UK is dealt with by the Civil Procedure Rules, but the UK libel regime is fairly unique in the sheer breadth of cases where the defamatory comment in question is made outside the UK and published on the internet it is willing to consider. The landmark case of King v Lewis [2004] established that a claim against a US website could be heard in the UK due to the fact that the defamatory comments in issue could be read by UK users and that Don King had a significant reputation in the UK.

The availability of “Forum shopping” has always meant that if libel cases can be fought in the UK, they often are due to the comparatively high awards in damages and costs that the High Court may be willing to make. Since the 1995 case of Shevill v Presse Alliance, in which the Court was willing to hear a libel dispute with French Magazine L’Express even though it had only distributed five copies in Yorkshire, London has been the unofficial “libel capital of the world”.

That may now be changing, however, in the light of the February 2011 case of Dmitry Firtash v The Kiev Post, where a Judge found that the case’s connection to the English Court was “tenuous in the extreme” after only 21 users were shown to have viewed the page in question, which had been blocked from UK users almost immediately. The Court declined jurisdiction and although this case is very recent, it may mark the beginning of a move away from the internationally-maligned “libel tourism” which the Coalition Government has already announced plans to rule out.

Even if the case is strong, the potential monetary and reputational damage worth pursuing and the Defendant traceable, the fact is that ongoing publicity surrounding internet defamation claims often make them as much an exercise in reputation management as the legal basis for the claim in the first place. It may be straightforward to shut down one blog containing negative commentary, but the nature of the internet means that the content may well then appear on other sites. What starts out as an action against one blogger can turn into a war on many fronts, and one which isn’t easy to win. Corporate claimants can easily find themselves accused of trying to stifle public debate over the accusations in question, and going after every duplicate “publication” of the defamatory content can be very expensive. A further major issue is that blog content may be picked up by search engines for some time after the original statement – the recent case Metropolitan Schools Ltd v DesignTechnica & Google [2009] found that Google cannot be held liable for search results which are themselves defamatory or link to defamatory website content.

Even if dealing with Defamatory content is not always easy, removing it in the short term may well be. In particular, ISPs and websites can only take advantage of the intermediary “innocent dissemination” defence in section 1 of the Defamation Act 1996 if they had no direct control over the content in question, took reasonable care in respect of its publication and had no reason to believe that their actions would lead to further publication of the defamatory material.

The defence is lost however, along with equivalent protection under the Electronic Communications Directive (2002) for “mere conduits” and “hosts” if, when notified of the content in question, the ISP, website or platform removes it immediately. In practice, many third party sites and ISPs tend to “take down first and ask questions later”. Although this may be very effective in the short term, keeping an eye out for the content appearing somewhere else will then be essential. One way of getting negative content further down search results is through effective Search Engine Optimisation and releasing as much content as you can as soon as possible.

If you are dealing with online defamation through either a website, video clip, tweet or Facebook post, then it’s best to put your crisis management team together as soon as possible and understand their roles. Lawyers can advise on what content is actionable and whether or not there are other ways to remove it without heading to Court (in particular, by relying on the site or social network’s own acceptable use policy or forum rules to force removal without having to fall back on a harsher “Letter Of Claim”), the Comms and PR Team will advise on how to engage with your stakeholders to communicate around and even through the problem and an SEO specialist can advise on how to manage the appearance of content on the web.

With the right management, even the worst content can become old news very quickly and even anonymous “Lone Gunmen” can be held to account. The conversation online may go on without you, but the conversation around how to influence online commentary has to go on with you.

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One thought on “Know Your Enemy-Managing Online Reputation Involves More Than Just A Lawyer

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