What would you do if someone spray-painted something defamatory on the side of your house? You might call the police or the council, but most likely you’d clean it off yourself. It’s an annoyance, but one that could be resolved relatively easily.
Now imagine the wall was visible by millions, including your friends, family, customers and potential employers. No matter how hard you tried, you couldn’t clean it off. In fact a lot of the efforts you made to erase it only drew more attention to it and helped make the wall more and more prominent.
Welcome to the Internet.
The Usmanov Case
Alsher Usmanov the Ukrainian billionaire and major shareholder of Arsenal Football Club, hired Shillings to try to take down a blog belonging to Craig Murray (the ex-ambassador from the UK to the Ukraine). Murray had written about Usmanov’s alleged criminal activities in his rise to power. In precipitating these actions Usmanov came up against the unwieldiness of the Internet.
Far from managing to remove Murray’s blog posts, press interest was increased when Fasthost, who were hosting Murray’s Web site, pulled the plug on all the sites for which Murray’s site administrator was responsible (in the face of the administrator’s refusal to take down Murray’s site). It was unfortunate that the administrator’s sites included the Web site of Boris Johnson and the site of the London Bach Society. The incident also became a cause célèbre in the blogging world – many prominent bloggers began commenting on the case, and others posted Murray’s blog on US sites, out of the jurisdiction of the legal action.
Unless you actually own the site on which negative content appears, getting content removed on the Web is difficult, if not impossible. You may succeed in getting one site to take down content, only to see that content resurface elsewhere.
Google Search Results
The fact that comments made on the Internet can be instantly and indefinitely accessible to millions of people around the world makes such comments a matter of serious concern. What in the offline world might have passed as a grumble and hearsay comment over a pint in the pub can take on more sinister significance on the Web. Even if the original site where the comment was posted has disappeared, the comments may remain cached in a search engine or appear on other websites or blogs.
When gossip website TMZ leaked audio of Christian Bale’s tirade against the Director of Photography on the new Terminator Film, the story quickly spread throughout the Internet. A Google search for ‘Christian Bale’ the following day revealed several stories about the star’s angry rant and a link to the original TMZ audio, all in the first ten search rankings.
While Google accounts for 50% of all Internet searches, many Google searches reportedly never go beyond the first ten links. For businesses and individuals worldwide, this means their most visible reputation is dictated by ten blue links and a few lines of text.
Hate Sites
So what do you do if you are Company X of London and a disgruntled former customer in Beijing has started companyXsucks.blogspot.com?
You could try ignoring it, but your potential customers probably won’t when they Google “company X” and the Company X Sucks link ranks at number 2, right behind the official Company X website.
But at least you’re aware there’s a problem.
You can try to retrieve a hate site using a domain name similar to your company name through a Uniform Domain Name Dispute Resolution Policy (UDRP) (for top level names) or Dispute Resolution Service (DRS) for .uk names. However, this can be risky since it might be successfully argued that the site constitutes fair use under the rules. The other problem is that, even if you succeed, you may inflame the situation further, and find that your success is short-lived if the negative comments pop up on another website.
In some situations you might be able to take control and publish a response in the press or on your own website, and by sending out e-mails. This is what an Israeli company did recently when anonymous defamatory comments were posted about it on a variety of websites and also sent around through emails.
Such attacks are often short lived. Surprisingly the best option sometimes can be to simply ignore the incident and let it gradually disappear. It takes a lot of energy to keep the site sufficiently prominent with new posts. On the other hand, in some cases the negative site could feature among the first ten results even several years after the last post.
Defamatory Content
And what if you find out about the private Facebook group ‘Company X’s product is dangerous’ which has 500 members, and doesn’t show up on Google? Or there is a micro-blogger on Twitter using your CEO’s name and making fake claims? What can you do about the 4-page thread on a message-board talking about how company X abuses its workers?
If defamatory comment is made, it will often be made anonymously. While tracing individuals through ISPs is possible, what is not so widely appreciated is that though computers may be traced it is not so easy to prove the identity of the users. So if a defamer has used a public computer and an email with false registration details it can be difficult to identify the culprit.
In the recent case of Applause Store Productions Ltd v Raphael [2008] EWHC 1781 (QBD) lawyers acting for Mr Firsht got around the anonymity problem. They sent a takedown notice to Facebook and obtained a Norwich Pharmacal order requiring Facebook to disclose not only the registration data but also details of the IP addresses and email addresses which created the profile.
Despite Mr. Raphael’s protestations that he had been impersonated and had not created the defamatory profile, he was held liable for the defamatory comments on Facebook. The Judge refused to believe his story. To his chagrin the judge ruled that the allegations of dishonesty in the comments were serious enough to harm Mr Firsht’s business making him liable in damages. So the award in Mr Firsht’s favour gave £15,000 for Mr Firsht personally, £5,000 to his business and an extra £2,000 for breach of his privacy.
Why Monitor Reputation?
Whether there is any validity to any online smears is immaterial. Once it’s on the Internet it’s in the public sphere, where it stays.
While Google is undoubtedly the quickest way to gauge your online reputation, it’s hardly the entire picture. Finding out what’s being said about yourself or your company online needs to take account of all blogs, microblogs (such as Twitter), social networking, video sharing websites, news feeds, forums, message boards and whatever other new buzz tool Web 2.0 throws up this week.
There are a variety of free tools online, as well as Google Alerts, that will allow you to search through sites or monitor them in real time, but watching everything can be complicated, confusing and time-consuming. And that’s before you even attempt to respond to the negative or incorrect content.
As a result an increasing number of companies and individuals are using external reputation monitoring services to keep track of their online reputation. These services are typically offered by Search Engine Optimization (SEO) companies, who utilize tracking tools to conduct regular searches for the name of your company, personnel, associated key words, your competitors etc.
These tools have varying levels of success in filtering out the spam, duplicates and promotional copy and presenting you with a summarised breakdown of what’s being said about you online. Some services simply present you with the raw information while others also offer statistical analysis to determine how much content is negative or positive.
Reputation management tools should not be confused with press cuttings services because with web 2.0 reputation monitoring becomes relevant for everybody, not just for established businesses. The sheer number of people publishing content – many of them with little training in topics like defamation – means we all need to watch out for own brand (both personal and business) and we need to be ready to engage when both unfair or positive comments are made about us.
In other words, the purpose of reputation monitoring is not just to find out how many mentions your brand has received, but also to develop appropriate ways to interact with others in the new environment being opened up by the social web. This presents huge cultural and other challenges to organizations.
Ancillary Services
For an extended fee, many reputation monitoring service providers also offer their expertise as cyber cleaners or SEO experts. SEO focuses on pushing negative content further down the search listings. It’s a digital take on the public relations principle of ‘accentuating the positive’.
To use the earlier example about Bale, an SEO response would involve increasing the rankings of positive or even neutral pages about Bale, to push the negative stories down the rankings. This could be achieved by creating an official Christian Bale website, or perhaps a YouTube video of Bale’s official apology, and other steps.
However, SEO is not always the most appropriate response, and there has been some bad press about SEO providers and cyber cleaner services. For example, Auto Admit in the USA attracted controversy recently when some students attributed their inability to secure employment to certain anonymous comments posted about them by fellow students, and cached by Google. One student who engaged the services of ‘Reputation Defender’ attracted further adverse publicity as a result of the inadequacies of Reputation Defender itself.
A worrying aspect of all this for clients is that it is in the interests of the SEO providers of reputation monitoring to promote their own SEO services as the solution to problems, and even to prevent problems. So, for example, if in a given situation it were possible to unexpectedly address a reputation crisis quickly by requesting and obtaining transfer of the domain, how likely is it that the SEO company would simply inform the client and let the work end there. Or would it rather continue to provide preventative SEO services which may no longer be desired or even needed?
The Future
The social web will undoubtedly have a profound impact on society over the next few years. The PR industry, the legal industry and many others will undergo fundamental challenges and transformations. Just as the adoption of Web sites and e-mail addresses gradually became mainstream, so every organization and individual will have to develop policies and procedures for engaging with consumers and others in this new connected, collaborative and interactive environment.
There could be an opportunity in all this for the legal profession to become the business advisers helping organizations and individuals to manage their reputations. There is nothing to say that any one discipline is more suited than another to address the new needs that reputation monitoring entails. Indeed one significant advantage the legal profession has its rigorous training and professionalism. An impartial, Internet-savvy lawyer may be a far more valuable and reliable adviser than an SEO or PR professional. Indeed it is likely that a mixed group of experts would be the solution clients need.
Certainly, Azrights will be offering reputation monitoring services. Having looked around we were unable to identify an ideal tool which was both comprehensive and cost effective for us to use for our individual clients, and small and medium sized businesses. Having a separate technology business – Alpha Analytic Limited – meant we were able to commission the development of a reputation monitoring tool developed. This will soon be on offer through a separate brand and Web site – Ferreter.
By outsourcing our reputation monitoring to Ferreter, we will be the first port of call for our clients requiring advice on adverse reputation monitoring results. If the situation merits a legal approach, we will be in a position to handle it. However, we anticipate that in the vast majority of situations where specific action is called for it will be an SEO or PR response that will be needed, in which case we will refer it to Ferreter.
So the future that Richard Susskind talks about in the ‘End of Lawyers?’ is already here. Social media will require a new breed of hybrid solicitors with extensive multidisciplinary skills and approach.
Shireen Smith founded Azrights in 2005. The firm is a niche intellectual property and technology law practice based in Islington, London.: See www.ip-brands.com
