What's your reputation costing you?
In today's online environment, there are many factors that can cost a brand opportunity. What might negative search results cost you? We can help you figure that out. Click here to set up an appointment for a free analysis of your online brand and steps that can be taken to improve it.
What is Defamation of Character?
Defamation is the act of making untrue statements about another which damages his or her reputation
Two types of defamation
Libel: Defamatory statements printed or broadcast over media
Slander: The same as libel, only spoken
To pursue legal action in either case, the plaintiff must prove that the defamation was malicious and unfair. A malicious act of libel or slander can only be considered malicious if it was untrue, or if it was put forward without reasonable attempt to discover that it was true or not.
Defamation, a loathsome disease
As you will read more about later, opinions are protected under the First Amendment from being called defamation.
There is another category of defamation that needs to be addressed: defamation per se. This type of case often leads to money rewards and punitive damages being recovered by injured parties. The types of slander or libel include allegations or imputations that injure someone’s trade, business, or profession, are of “loathsome disease” such as leprosy, STDs, or mental illness, unchastity, or criminal activity.
A brief history of defamation
Before the 1500’s, there were various legal proceedings that looked much like defamation, but weren’t held in the same regard by the courts of England. In 1358, a judge collected a large sum of money for being called a traitor in the court of the king, and around the same time there was a precedent for handling cases that looked like defamation.
It wasn’t until after 1507 that defamation became commonly handled by courts of law, where before that time courts mainly took interest in crimes of a physical nature. Offenses like theft and murder were considered truly offensive, but words and slander were handled outside of the court systems.
In America, the development of defamation began before the founding of the declaration of independence in 1776. A case held in American courts in 1735 was possibly the most famous, where a journalist was acquitted for attacking the governor of a colony.
In 1996, the court ruled that if public officials and public figures could demonstrate actual malice, that is, knowledge that the information put forth was false, they could win a defamation case. This status also regards opinions, as they are separate from facts, so that one cannot be sued for defamation because of an opinion. Thank you, First Amendment.
Although defamation of character is still a widely popular action that public figures take, there has been recent action taken to mitigate some of the willy nilly with which suits are filed.
The Defamation Act of 2013, passed in the U.K. in April 2013, aims to make claims harder to prove by detailing the requirements to prove what serious harm means for the plaintiff’s reputation. If the offensive statement can be proven to be a lie, it had to have also been harmful in order to hold water in the court.
In the U.S., most states require that a statement of retraction be requested from the accused, and only if the accused (the defendant) does not produce such a statement will the case proceed.
The harm must have actually happened, as well, not just estimated to happen based on the libel or slander. This is generally the hardest part to prove, as it must be definitive that the harm was caused specifically by the defendant's acts.
If you want to find out how you can protect your reputation online, we're experts on the subject. If you want to pursue a defamation case you'll need to speak with an attorney (we aren't lawyers, but we work with them regularly).
How reputation protection works
Think of your brand’s online reputation as a public credit score for your business that’s a combination of:
Branded search results
Cumulatively this content is reflected online and scrutinized by prospective customers. That hard-won reputation must be protected.
By working to proactively mitigate negativity, usually through the strengthening of your brand’s existing online content or addressing potential negative content creation, the potential effect and frequency of negative content being produced in the future can be reduced.
We do this by taking steps like:
Improving reviews so inevitable negative ratings are less impactful to your business
Repositioning positive online content in search
Identifying online content threats and mitigating them before they become problems
Creating an environment for positive brand messages to be published and promoted online
At a high level, we help protect your online reputation by taking the steps shown above.
improving reviews, repositioning content to better represent your brand, and identifying online content threats before they become problems.
Court Ordered Removal and Search Engine De-Indexing
The Communications Decency Act provides immunity to online service providers and Internet users from civil or criminal liability for content posted by third parties. Despite this, most websites and major search engines, including Google, Bing, and Yahoo!, have polices in place for voluntarily removing content from webpages and search results if given a valid court order.
Every website and search engine has different requirements as to what constitutes a “valid” court order. In order to obtain one, a lawsuit must be filed. Unfortunately, the defamatory content oftentimes is authored or posted by individuals who are anonymous or cannot easily be identified or located. Depending on the state where the lawsuit is filed, efforts must then be undertaken to uncover the identity of the anonymous author.
If for some reason it is impossible to do so, even after appropriate due diligence is taken, a motion for service by publication can be requested and then default can be filed. Court orders are used not only for injunctions to remove content, but also to prevent content from continuing to be reposted and to obtain monetary compensation and relief for the client.
Uncovering the Identity of the Anonymous Perpetrator
Uncovering the identity and/or location of an anonymous perpetrator usually requires subpoenaing websites, hosts, and ISPs to determine the identity of the perpetrator. At Webcide.com, we utilize some of the most sophisticated technology coupled with legal techniques to identify those who appear to be anonymous and unidentifiable. We employ deep web advanced search tools, such as WHOIS and DNS look ups; metadata tracing and analysis; email and social media IP traps; website forensics; and private investigator services, as well as “John Doe” lawsuits and subpoenas.
Because it often can be challenging to identify the anonymous author of online defamatory content, no one can “guarantee” 100% successful identification in every circumstance. Yet, in today’s digital age, every website, electronic communication, and click of the mouse can leave a trail of evidence or electronic “fingerprint” as to the identity and location of a user. When utilizing the full range of investigative and forensic resources offered by our team, we offer a significantly high chance of successful identification.
Stopping the Online Defamation and Harassment:
Identification of an anonymous defamer or harasser is not only necessary to obtain a court order for removal of the damaging online content, but it is also necessary to stop any ongoing defamation or harassment and to file for compensation. Each case has different variables that can significantly impact the best strategy to address the matter. Client who work with our attorneys benefit from the availability of all options. In some cases, a well-drafted demand letter from one of our attorneys may be all it takes to resolve a situation.
In cases where such an approach is insufficient, our attorneys can provide experienced representation in alternative dispute resolution proceedings, such as mediation and arbitration. In yet other situations, the most appropriate strategy for resolving the matter is to file a lawsuit to seek damages for the consequences of the false and defamatory materials.
How Do I Get Started?
Because Webcide.com is dedicated solely to Internet defamation, we have the experience and expertise to identify anonymous defamers and harassers in order to remove online defamatory content and stop ongoing harassment.
You may have more options than you realize. To learn more about our online investigation services and to discuss your specific matter, contact us today.
A staggeringly high percentage of both teens and adults have experienced online bullying at some point in their lives, whether through cyberbullying or cyber harassment. What bullying and harassment were in the past has only been exasperated to a much higher level with the pervasiveness of computers and cell phones.
With today’s technology and social media platforms, malicious content and private and humiliating images and videos can be posted and instantaneously shared beyond just a single person or group. The global reach of the Internet provides the ability to anonymously torment and intimidate an individual with an alarming global reach. Unfortunately, the malicious nature of online bullying has long-lasting effects. At Webcide.com, we apply the full weight of the law to stop online harassers, bullies, and stalkers in their tracks. We’ve developed a comprehensive approach, deploying every legal means possible to remove embarrassing and intimidating content and to punish offenders.
The dirty little secret, though, is that the law—both written statute and decisions handed down by the courts, which are charged with interpreting statute—is often open to interpretation, especially when it’s relatively new and untested.
Some of the body of online reputation law fits the “new and untested” bill. And while other elements are more settled, they don’t universally benefit those looking to burnish their online image. So while these five areas of the law may help your web reputation campaign, they may also work against it.
In any event, this article will help you weigh the pros and cons, and consider the resources that might be involved.
1. Freedom of Speech / The First Amendment to the Constitution
The First Amendment is probably the most widely invoked legal concept in America, but hey, maybe there’s a reason it’s “first.” For our purposes, the most salient bit of its text is:
“Congress shall make no law...abridging the freedom of speech, or of the press…”
Despite the original wording’s focus on the federal government, the First Amendment is universally agreed to apply to the actions of state and local governments as well.
For a 225 year old law, the First Amendment is still pretty influential. It’s helpful to look at it as a backstop that governs how far courts and governments can go in limiting speech, whether online or in other media. Over the years, countless court decisions have added nuances, limitations and exceptions to the universality of First Amendment. Some of these are discussed below. Here’s the takeaway, though: If you don’t see how—or can’t make a convincing case that—one of these nuances, limitations or exceptions applies to something posted about you online, whoever posted it (or allowed it to be posted) is probably on firm legal ground.
Download our capabilities deck
2. Communications Decency Act of 1996
Originally drafted to restrict the distribution of Internet pornography, much of the CDA is now invalid—struck down, ironically, by a 1997 court case that upheld the First Amendment rights of Internet users to produce and disseminate sexually explicit content.
But one critically important piece remains: Section 230. Prominent online-defamation lawyer Aaron Minc describes the remaining bits of the CDA as the “linchpin” of the Internet, and he’s not exaggerating. The key passage is as follows:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
In other words, Internet Service Providers (ISPs) can’t be held liable for—or forced to remove—any of the virtual content on their servers. Courts often extend these protections to individual Internet users and webmasters, including those who make a living posting reviews, images and other content pertaining to individuals and businesses. Google, Yelp, RipOffReport, social media sites—you name it—are all immune from legal claims, at least in theory.
Section 230 of the Communications Decency Act is key to protecting free speech on the Internet, but it’s also easy for sketchy publishers to hide behind. Fortunately, the most extreme interpretations of Section 230 are being tested right now, and the following three areas of the law offer some welcome news for those looking to protect their online reputations.
3. Digital Millennium Copyright Act (DMCA)
When it was passed in 1998, the Digital Millennium Copyright Act (DMCA) basically extended globally accepted copyright protection protocols into the digital world. Like copyright laws in the pen-and-paper world, the DMCA protects content creators from having their material stolen and and republished without attribution.
Like Section 230, it does limit the liability of ISPs and publishers that aggregate third-party content and material, so DMCA lawsuits against such entities aren’t always a slam dunk. But if you find that your original work has been reprinted without your permission or any reference to your status as its creator, you can expedite its removal with a DMCA takedown notice, circumventing the courts entirely. And if your work has been used in a defamatory fashion, you may be able to use the Digital Millennium Copyright Act to fight those who actively seek to harm your online reputation.
In this case you may be able to have Google remove the content from their system.
4. Defamation, false light, slander and libel
Speaking of defamation: Few online reputation law concepts are more important to your digital image. Defamation is a false statement made by a third party, often for the purpose of undercutting the subject’s reputation. “Slander” and “libel” describe verbal and written defamation, respectively; both exist on the Internet. For non-public figures, defamation exists if a statement can be proven harmful to the individual’s reputation, regardless of malicious intent. For public figures, such as actors and politicians, actual malice must be proven—a higher bar to clear.