- March 1, 2009
- Posted by: Brandon Matheson
- Category: Santa Barbara Entrepreneur
Part of our job at First Click is to protect our clients’ names. Our clients are developing business strategies around everything from Santa Barbara regional news (Noozhawk) to iron lighting (Steven Handelman Studios) to commercial real estate (Pacifica Commercial Realty). How a company “appears” on the Internet is our responsibility. Ultimately, we want to associate our clients’ brands with certain keyphrases that are based on the products and services they offer their target market. The better we do this job, the more likely their brand will be protected and authentic. When it comes to individuals and their personal names, the same is true, but often much more complicated due to some laws few know and even fewer understand.
One of the most powerful and effective uses of the Internet is to communicate past experience. To provide other consumers and businesses with knowledge and experience to help in making smart decisions and often times this includes warning others about bad experiences. The correct and legally sound way to do this is to always be truthful and always be clear. Part of this includes identifying yourself. If you lack the courage to identify who you are when providing people with background, then that information goes from potentially valid and helpful to complete hearsay and most of the time, completely false. So, if you are truly trying to help others, just be comfortable identifying yourself and speaking the truth – otherwise it’s going to be a childish rant lacking courage. Nothing more.
Let me speak from experience. About 4 years ago, I hired a local contractor to remodel my bathroom who essentially took a 60% deposit on the total project price. He said he needed cash for materials and labor. After taking the money, he worked 1 week of the 10 week job and delivered no material
What was even more troubling is to quickly discover about 12 other people and businesses that were owed monies or work from this contractor, ranging from $2,000-$210,000. I was on the lower side.
I went down the legal path as well earning a court judgment against this person for the lost monies. However, there were already so many judgments against him that I would probably never collect. It seemed wrong to me that this person would continue stealing and causing families strife and nothing could be done about it.
In the course of feeling very taken advantage of and frustrated at just how many other people were in the same boat, I decided to create a simple Web site to warn other homeowners and workers of this person’s character. I made sure to not say anything that was not true, and to cite details and provide evidence with each statement. It was very helpful that about twelve other folks asked for their phone number to be present on the site to warn anyone thinking of working with this person about recent history.
The point of this story is that people let us down and when we discover that they operate almost at a criminally negligent level, we have an obligation to inform the community. That’s where the Internet is very valuable. It was clear this person would continue as long as he could earn money by misrepresentation and fraud. I know for certain the Web site I created saved two homeowners and one tradesperson the heartache and financial loss of working with him.
It’s actually quite easy to setup a Web site to warn people about others. And, if you provide detail, references, and evidence, the site will compel at least enough doubt to slow someone of mal-intent.
But what about Web sites that defame and slander someone without any support? What if it was equally as easy to tarnish someone’s name on-line. Well, it is. And it happens every day. In fact, there are currently tens of thousands of libel and slander cases where one person accuses another of misrepresenting their character, and that misrepresentation causing damages of some sort. The legal definition of libel is:
To publish in print writing or pictures, broadcast through radio, television or film something that is false about someone else which would cause harm to that person or his/her reputation by bringing the target into ridicule, hatred, scorn, or contempt of others. Libel is defamation, which is written, or broadcast and is distinguishable from slander, which is oral defamation.
So, libel would consistent of posting a Web site or a blog entry that defames someone. Now the key is that the posting must be false. If what you post is true, then by definition it is not libel.
If someone commits libel against you, you can contact them and demand they remove the libelous material. If they don’t comply, you can pursue a libel case against them in a court of law. If you win, a court order will require the poster and or hosting company of the on-line content to remove the libelous material.
What happens if the poster is anonymous. Meaning, there is no way to contact the person who has slandered you? They have created a Web site or made a posting but not indicated their identity. In this case, there’s no one to contact and no one to pursue in court. Here’s the thing, search engines, blogging companies, and content platform companies have no legal obligation to remove the content. In fact, they are protected by the 1st Amendment and several other communications laws such that they may keep the libelous content on their site and/or continue hosting.
This is the crux of this post. We all know how easy it is to create a blog post, a Web site. And, anyone who you have caused pain or loss can anonymously post negative remarks about you, true or false. And, there is nothing you can do about it. If that cute girl you just met searches your name and finds your ex-girlfriend’s anonymous post about how you cheated on her, lied to her, etc, etc, that’s life. If your potential employer searches your name and finds the post a prior business partner of yours made about your lack of integrity or your propensity to gamble or to drink heavily and miss work, that’s life.
There are a few Web site services that provide “On-line Reputation Management” services. What that often entails is creating a whole bunch of new pages to push the negative remarks down on the rankings result – burying the negative. The reality is that getting an anonymous libel post removed is currently extremely difficult, if not impossible.
Legally, you have to jump through some pretty expensive hoops. Search engines like Google and Yahoo are not required by law to remove or eliminate libelous remarks without a court order. Those companies are in the business of organizing and presenting content, not adjudication as to the veracity of the content. If the poster is anonymous, you have practically no recourse but to file a “John Doe” lawsuit which essentially asks a court to recognize the libel or other infringement against an unknown entity. Once a court order is achieved, that only requires the search engine or Blog platform provider to reveal the e-mail address and name on file. However, since it’s pretty much a 2 minute exercise to create a fictitious e-mail based on a fictitious name, you probably won’t get much out of a court order. You have to then obtain another court order getting a judge to recognize the ‘burn’ site as defamation and then the hosting company (Google, Yahoo) is required to remove the disparaging content.
If the blog contains any image of you that you own, you can file a copyright for the image. Once obtained, you can obtain a court order that said platform infringes on your copyright. Even with this court order, you’ll have just some leverage with the hosting and/or blog platform company. But at least, you’ll havesome leverage.
You can also trademark your name. Seems like that will give you some minor additional credibility with a court. However, a trademark does not protect you from open libel or slander. And if the libel is anonymous, you won’t have anyone to go after on trademark infringement.
The fact that it is so easy and so free to post anything about anyone and the search engines and content platforms and it’s so hard and costly to have this content removed, that this will soon be a major liability for search engines and for courts to reconsider the law.
I believe the Internet is about freedom of speech and I’ve used it to protect others from someone’s maliciousness. However, the current laws provide little to no recourse for any random person that only wants to disparage with no basis, no evidence, no objective but to defame and damage. And therein exists the major problem. Current laws protect anonymous posters and do nothing to hold hosting/blog platform companies accountable.
Until a landmark case hits the street, I recommend the following:
1) Communicate to the hosting company, and/or blog serving company the libel and your request to have it removed.
They categorically will not remove any content on this basis, but you have a written record.
2) If the poster is using your name, immediately trademark your name. There’s lots of services out there that will help you trademark the name. Or you can direct to the government:
A trademark won’t prevent others from talking negatively about you or your name. But, if it’s malicious and false, you will have a secondary claim in addition to libel.
3) If the poster is using any of your content, images, or videos – you can copyright the material. The U.S. Copyright office makes it easy: www.copyright.gov
Having a copyright is possibly the only true mechanism to forcing a hosting company and/or blog platform to remove a post – they must comply with a court order confirming copyright infringement.
4) Contact Google, Yahoo, and Bing and let them know the posting is spam and should be removed form their index. Google has an easy to use form: Google Spam Report
This can take up to 30 days, and it’s likely to result in a lower ranking, but not removal
5) Do research on-line – this affects tens of thousands of people each month. And, there’s a growing sentiment against Google, Yahoo, and Bing that some sort of validation must be put in place. Who knows, you may find a lawyer on-line that is willing to take your case on contingency.
6) Protect your name. Go to http://namechk.com/ and register your name for all platforms available. It will take a while, but it will go a long way in protecting your name. If you run into serious issues, contact First Click for reputation services.
7) Register your name as a domain name. Get as many variations of your name at the registrar of your choice. I use GoDaddy.
Most importantly, stay calm. People are realizing more and more how easy it is to post anonymous – negative remarks with no basis, and no evidence. As this becomes more commonplace, and as the holes in the system become more obvious, people will go back to the old fashioned way of knowing someone… word of mouth and personal interaction.
Written by Jacques Habra
Updated June 23, 2011
Appears Google’s practices of inflating their own assets’ rankings continues to the detriment of on-line content providers, peoples’ reputations, and more.