Need to Repair Your Online Reputation? There Are Laws for That

New Jersey Law Journal November 30, 2018

By Jonathan Bick is of counsel at Brach Eichler in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of 101 Things You Need to Know About Internet Law (Random House 2000).

The internet allows individuals to publish information about themselves and others at little or no cost. This feature of internet-enabled communication simultaneously encourages self-promotion and anonymous false evaluations of others. Such internet postings can lead to misjudgments and thereby result in erroneous decisions. A number of firms exist to repair, build and amplify internet reputations. These firms’ activity is governed by internet reputation repair law.

Studies evidence that a significant correlation exists between negative content search results (blogs, videos, forums and review sites) and internet visitors’ negative assessment of a website.

A client should initiate internet reputation repair when forums or sites associate the words “scam” or “rip off” with their trademark, their company name or leaders, your name, or the name of your company or leaders, and when troublesome search results appear if their entity is searched. Internet reputation repair is also warranted when competitors and their distributors buy negative ads against a client’s name or trademark on search engines, as well as when past court or agency actions or accusations against the client’s company or principals continue to show up.

Internet reputation repair law results in protecting internet keywords (such as a client’s trademarks, entity name and principals’ names), ameliorating adverse search engine results for the brand and related keywords, and decreasing the likelihood of adverse content becoming ranked.

Typically, the internet reputation repair process involves two steps. First is the suppression negative search results. The second step is the use of existing statutes to combat defamatory content.

More specifically, the first step is technological in nature. It involves the production and publication of attractive internet site content for sites that appear when a client is searched, and then motivating a sufficiently large number of individuals with unique IP addresses to visit said sites. This tactic is normally sufficient to move adverse content off the first three pages of internet searches associated the a client’s site.

The second step is legal in nature. It has two parts. The first part is to contact the service that hosts the adverse and/or defamatory content, and give a reason for said service to remove it. For example, most gripe sites have terms-of-use agreements that prohibit false or defamatory content. Thus, if it can be shown that the adverse postings are false or defamatory, and thereby violate the terms of use, then the hosting services usually will remove the offensive content. If such removal is balked at, then a letter is in order which gives notice of a deceptive trade practice (i.e. saying one thing—willingness to remove false or defamatory content, and doing another—failing to do so) combined with a promise to alert the Federal Trade Commission.

The second part is the application of traditional legal remedies. While the right to freedom of expression stems from a constitutional guarantee grounded in the First Amendment, it has been limited by the common law right to reputation protection. As noted in Restatement (First) of Torts §582 (1938), under the common law, the defendant must either prove the truth of his assertion or assert a privilege in order to avoid liability for materially adverse speech content.

Internet reputations are largely protected via the application of defamation law and other laws  protecting an individual’s representation to a community, and the community’s recognition of an individual right to said representation. The starting point for internet reputation protection is the New York Times Co. v. Sullivan, 376 U.S. 254 (1964), legal standard for differentiating public and private figures for defamation action purposes.

While defamation law varies from state to state, for the purpose of the application of defamation law to internet content, the four core elements of liability are required. More particularly: (1) a false and defamatory declaration about another; (2) an unprivileged publication to a third party; (3) intention or negligence by the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication (see Restatement (Second) of Torts §558 (Am. Law Inst. 1977).

According to Youssoupoff v. Metro-Goldwyn-Mayer Pictures Ltd, (1934) 50 TLR 581, California defamation law protects an individual from the publication of false rumors that “exposes [the] person to hatred, ridicule, contempt or obloquy, or cause[s] him to be shunned and avoided.” In short, an individual’s reputation depends upon the favorable recognition of others.

Subjects of adverse internet content are generally offended. If the identity of the entity that posted Internet content containing the four core elements noted above, then a traditional defamation action against that person can be initiated. If the identity of the defamer is not known, then one recourse is to sue the internet site providers.

However, such internet site providers may claim that it is immune to defamation liability under the federal Communications Decency Act (CDA) 47 U.S.C. §230 (1998). However, this immunity claim will only be upheld if the internet site provider is an internet computer service and not an information content provider.

More specifically, Section 230(c) of the CDA states that “[n]o 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 addition, Section 230(e) protects computer service providers from the imposition of any state or local law that is inconsistent with Section 230.

For purposes of the CDA, an interactive computer service is any information service, system or access software provider that enables computer access by multiple users to a computer server. It defines an information content provider as any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet or any other information computer service. In short, if the internet site provider exercises any editorial control over posted content, then Section 230 of the CDA will not absolve said intermediaries of legal liabilities.

Additionally, internet defamation defendants my avail themselves of state laws, such as anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes. These statutes address concerns over lawsuits “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. Anti-SLAPP statutes provide for the rapid resolution of a special motion, filed by the defendant, to strike the plaintiff’s action. Said anti-SLAPP statutes are often successfully used by internet site providers.

Typically, an anti-SLAPP statute allows a party to bring a special motion to strike any claim that is based on an action involving public participation, once a defendant has proved the existence of public participation, which includes a statement made in a place open to the public, such as the internet, in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern. Upon said proof, the plaintiff must demonstrate that there is a substantial case to answer. If the plaintiff fails to meet that standard, the action is stricken.

Other state laws may also allow action involving internet content related to reputations. These include Consumer Protection Acts and Deceptive and Unfair Trade Practices Acts. The elements of proof for such acts normally include: (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to the plaintiff’s business or property, and (5) causation. Such acts usually are only applicable to reputations involving the sale of assets or services.

State law also provides protection to internet content and service providers. The publication of defamatory information via the internet may result in harm in more than one jurisdiction. This result could provide plaintiffs harmed by internet publication with separate claims for each publication of the alleged defamatory material.

However, state defamation laws generally provide a safeguard against liability from publication of a defamatory statement in multiple locations. The “single publication rule” does not allow multiple defamation suits to arise from a single defamatory statement published multiple times; American courts hold that the statement was published only once.

More specifically, Restatement (Second) of Torts §577A (1977) states that any one edition or similar aggregate communication is a single publication. This assessment is followed by the majority of American courts (for example see Keeton v. Hustler Magazine, 549 A.2d 1187 (1988)).

Since state law usually only allows a single defamation action and internet publications may result in several jurisdictions for said action to be commenced, determination of relevant jurisdiction for internet defamation must be considered. According to Restatement (Second) of the Conflict of Laws §145 (1971), the considerations relevant to jurisdiction are consistent with those relevant to the choice of law, for most states apply the law of the jurisdiction with the “most significant relationship” to both the occurrence and the parties.

Normally, the determination of the jurisdiction with the most significant relationship to the defamation is made. The four elements generally considered are: (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile or residence of the parties, and (4) the place most central to the parties’ relationship. Each of these elements is associated with a form of contact that the parties may have with the forum, which may be used to support jurisdiction.

However, in the defamation context, the place of publication serves both as a contact with the forum and as the place where the injury occurred. It should be noted that the harm incurred by the plaintiff as a result of the publication may be the only basis for the parties’ relationship. When the publication takes place over the internet, if the internet communication was targeted, such targeting will likely ensure that the defendant is able to offer the most significant relationship with the forum.