how to remove defamation and other damaging content from ... · 2013 deloitte survey › reputation...

How to Remove Defamation and Other

Damaging Content From the Internet

Presented By:

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Whitney C. Gibson, Vorys, Sater, Seymour and Pease LLP

How to Remove Defamation and Other

Damaging Content From the Internet

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Prepared By:Whitney C. Gibson, Vorys, Sater, Seymour and Pease LLP

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Presented By:

Whitney C. GibsonVorys, Sater, Seymour and Pease LLP513.723.4823| [email protected]

How to Remove Defamation and Other Damaging Content

from the Internet

1


Online Reputation Attacks Come from Many Sources

› Real consumers/customers (usually less harmful)

› Competitors

› Disgruntled employees, investors

› Extortionists

› Bloggers wanting to get attention and earn $$ from ads on their blogs

› “Activists”


There are Many Types of Online Reputation Attacks

› False Negative Reviews

› False Positive Reviews by/for Competitors

› Attack/Gripe Websites (e.g. CompanySucks.com)

› Scam Report/Complaint Websites(e.g. Ripoff Report, Pissed Consumer)

› Blogs

› Social Media, Wikipedia, Message Boards/Online Forums, Mugshots/Embarrassing Photos

3


Common Attack Forums / Locations of False, Defamatory Content

› Angie’s List

› Better Business Bureau

› Blogs, Message Boards

› Complaints Board

› Facebook

› Media / News Outlets

› Mugshot websites

› Pissed Consumer

› RealScam.com

› Revenge Porn websites

› Ripoff Report

› Search Engines

› TheDirty.com

› Twitter

› WhoScammedYou.com

› Wikipedia

› Yelp

› YouTube


Ripoff Report

4


MonaVie example


Negative Yelp Review #1 on Google

5


2013 Deloitte Survey

› Reputation is the #1 strategic risk for large businesses, according to > 300 senior top management and board members surveyed

› Largely due to rise of social media

"The time it takes for damaging news to spread is quicker, it goes to a wider audience more easily, and the record of it is stored digitally for longer.”

-- Henry Ristuccia, Deloitte Global Leader, Governance, Risk and Compliance


Solutions are Fact-Dependent

Terms of Service

Jurisdiction

Removal Options

Available legal claims

Statute of Limitations

Potential damage

Search engine strength

Attacker characteristics

Client’s budget

Client’s risk toleranceSearch engine rankings

6


Attacker Characteristics

› What is he/she capable of?

› Is this a one-time attack? Or is it the beginning of a campaign/series of attacks?


Location/Visibility of the Information

› Where is the harmful info? Who can see it?

› Does it rank highly in search engines? If not, could it eventually?

Client

Company Website#1

Defamatory Ripoff Report post #2

Domain Authority (per Open Site Explorer):

• Wikipedia 100/100• Better Business Bureau 96/100• Yelp 94/100• Ripoff Report 82/100

7


Harm/Damage

› How harmful is the content?

› Is the person/business actually suffering?

› What is the client’s budget and risk tolerance?

› Can the person/business afford not to have the content removed?


Choosing Right Approach Involves Balancing of Factors

Harm Cost of Response Risk of Response

Likelihood of Success

8


Specific Techniques/Solutions


Techniques/Solutions

1. Convince Author/Poster to Stop & Remove

2. Cease and Desist Letter

3. Contact Website

4. Look at Terms of Service

5. Court Order

6. Lawsuits

7. DMCA Considerations

8. Unauthorized Internet Sales

9. Product Diversion Solutions

10. Monitor and Police Sales

11. Trademark Considerations

12. Identifying Anonymous Posters

9


Removal is Often the Best Solution

› More Efficient

› Cost-effective

› Damages often difficult to prove at trial


SEO Becoming More Difficult

#3 search term on Google

10


Convince Author/Poster to Stop Attacks, Remove Posts


Convince Author to Remove

› On many websites or forums, the author of the post can edit or delete the content

› Can often approach author, convince them to remove or update their post

11


Convince Author to Remove

› Monitoring

› Early Contact with Poster (80-90% removed if poster contacted within 72 hours)

› Post Response with Phone #Thank you for your review and I'm sorry to hear that you feel the blades are not lasting as long as previously. We have numerous quality checks throughout our manufacturing process, so this is not something we would expect. It may be helpful to know that the item fading is just a guideline and we recommend changing the cartridge when it begins to feel dull.

If you would like, give us a call at 1-800-_________.


Ways to Convince Author/Poster

› Refund

› Replacement

› Apologize, explain mitigating circumstance

› Ask customer what you can do to make them happy

12


Carrot - Provide Disgruntled Customer With Replacement

› If the customer is unhappy with the service or product, offer to replace it

› This often results in them changing the review


Negotiate Settlement Payment for Removal

› Confidentiality Agreement

› Negotiate

› May be necessary for very damaging attacks

13


Cease and Desist Letter


Cease and Desist Letter

› Our recommendation is to make sure you have legal grounds for threats, or it could create a PR nightmare

› Ask company how they would be perceived in the court of public opinion: Bully or Victim?

› Include draft complaint with C&D letter

14


Case Study: Ron Gordon Watch Repair


Contact Websites

15


Approaching the Website


Exceptions to CDA

› Intellectual Property claims • “Nothing … shall be construed to limit or expand any law

pertaining to intellectual property”

• Contributory TM infringement

• Copyright Infringement

› Information Content Provider: “[R]esponsible, in whole or in part, for the creation or development of information”

› Failure to Warn (9th Cir. Jane Doe v. Internet Brands: Held: the CDA does not shield a website operator from liability for failing to warn website users about known violent crimes that others

are using the website to commit)

16


Look at Terms of Service



› Most websites prohibit defamatory content and will consider removal if you can adequately explain that a posting violates their Terms of Services or Guidelines

› Yelp’s Terms of Service: “You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory…”

› Yelp’s Content Guidelines: “Don't publicize other people's private information … and please don't post other people's full names unless you're referring to service providers who are commonly identified by their full names.”

17



› Wikipedia is most concerned with reliable sources. If the offending content is unsourced or poorly sourced, the editors will likely notice it and remove the content

› Blatant attack pages are also easily deleted

› Wikipedia has demonstrated a willingness to remove articles that are shown to conflict with its standards (such as those for biographies of living persons), but this will depend on the circumstances, arguments crafted



› Twitter• Does not specifically address defamatory tweets, but does prohibit

its use for “unlawful purposes or in furtherance of illegal activities.”

• Often easy to identify someone you follow and/or follows you

› Facebook – Impostor Account› “Claiming to be another person, creating a false presence for an

organization, or creating multiple accounts undermines community and violates Facebook’s terms.”

› Report an Impostor Account: https://www.facebook.com/help/contact/169486816475808

18


Websites Will Remove

› Copyright, Trademark Infringement

› Threats of Violence

› Child Pornography

› Obscenity

› Impersonation

› Court Ordered Removal

› Confidential Information (e.g. bank account)

› Cyberbullying

› Other Illegal Content


Tips for Contacting Websites› Need a good reason why a website should remove the content

› Find someone to talk to who handles takedown requests

• Phone # for website editor, writer, or webmaster / someone with authority to remove the content

• “Contact Us” or WhoIs Searches (website registrant)

• Email if necessary

› Make Your Case

• Explain who you are, purpose for correspondence

• Be thankful/appreciative of their time; verify correct person to speak with

• Explain why it is important/necessary to have content removed

• If deletion is not possible, suggest alternative solutions: 1) blocking content from search indexes, 2) removing your name, 3) edit to update situation

19


Court Order


Court Order Approach

› Alternative removal technique

› Obtain C.O. against online poster that says statements are defamatory, present to search engines (fill out online form, etc.) for de-indexing links to the defamatory statements

› Most websites will honor court orders against online posters, remove content

20


Some Websites Have Stricter Policies


Ripoff Report

› Ripoff Report may use editorial power to post findings from a court about the subject matter of posts

› Court may find specific statements to be false, defamatory Ripoff Report may post that finding with special prominence or may even redact info identified by court as false

• RR needs to see the judgment

• Default judgments do not meet RR’s criteria (users may post default judgment as a rebuttal in comments section)

21


GlassdoorCourt Order Approach

› Removal is possible (can flag posts as “inappropriate” or contact site directly, moderators will review)

› Decisions are final: “[C]ontent decisions are within our sole discretion and we do not negotiate about our application of a guideline to our final decision as to whether or not a piece of content warrants removal”

› Court Order approach tricky: de-indexing can remove link to harmful review, but also positive reviews


Stick - Lawsuits

› Different legal claims you can potentially bring

› Lawsuit – Things to consider • Does reviewer have an ulterior motive?

› Competitor – Lanham Act/False Advertising

› Ex-business partner

› Personal animosity

› Extortion

22


Lawsuits (continued)

› Damages

• Did the client suffer damages?

• Are damages presumed under the law? (Defamation per se: crime, falsehoods that injure one in his business)

› Act quickly – many states have one year statutes of limitations

› You cannot sue the website, only the poster (Communications Decency Act)

› Are there easier methods to stop online attacks and remove the defamation?


Be Mindful of anti-SLAPP Statutes

› Many states have passed statutes to combat Strategic Lawsuits Against Public Participation

› SLAPP lawsuits often filed in reaction to criticism, wishing to silence critics

› Under anti-SLAPP, judge may dismiss frivolous lawsuits filed against those exercising their First Amendment rights

› Cannot use cost, burden of defending against lawsuit to compel them to take something down; always ensure there is a legal basis for claims, have evidence prepared to survive an anti-SLAPP motion (i.e. be able to prove falsity/defamatory nature, plus damages)

23


Deletion From Google Search via Google’s URL Removal Tool

› If original source has been changed, yet offending content still appears on Google


Digital Millennium Copyright Act (DMCA)

› Photographs • Photographer owns copyright

• Send DMCA notice

• If photo taken by another person, get them to transfer

› Invasion of privacy claim

› $$

› Negligence per se

› Newspaper/Company• Ask for them to assign copyright to article to you

• Can monitor, use DMCA for takedown

24


News Publication

› Threat of suit + negotiate

• Check out law in venues available to you

• Explain change in circumstances

• No longer under investigation

• Ask for sympathy

• Seek “Robot Exclusion” (so it does not get picked up in search, tell robot readers to skip URL)

• See if they have a Europe office

› Talk to contact there

› More policy protections


Court Decisions

› Ask publishing company to use Robot Exclusion Device to get out of search engines

25


Unauthorized Internet Sales

› Many companies only want products sold through certain outlets/distribution channels, yet these companies are seeing their products being sold elsewhere online for lower prices (e.g. eBay, Amazon)

› This activity causes several problems:

• Upsetting legitimate distributors

• Reducing profits

• Damaging trademark and brand value

› Many companies struggle to stop these sales because of First Sale Doctrine (but there are exceptions to FSD)


Unauthorized Internet Sales

› Send C&D to seller

• Explain material difference

• Inapplicable warranty

• Lack of quality controls in chain of distribution

• Scraping of UPC codes/tracking devices

› Often must identify seller

• Purchase product

• Cyber investigations

• Complaint and subpoena

26


Product Diversion Solutions

› Create characteristics of products that cannot be replicated by online retailers

• Provide warranties, service commitments for products that do not apply to online sales

• Establish quality controls that cannot be replicated by Internet retailers

• UPC Codes that allow you to track where the product came from

• Monitor and police products

› Contracts with distributors prohibiting sale of products to online retailers


Monitor and Police Online Sales

› Attorneys & Cyber Investigators can work together to identify Internet retailers illegally selling products, infringing IP online

› Once identified, there are a number of methods to remove unauthorized sales from the Internet, including:

• Communicating with website hosts (i.e. give eBay notice of infringement

• Communicating with unauthorized sellers

• Force resellers to give you identity/source

• Obtaining injunctions against unauthorized sellers

• Filing lawsuits

› Can recover damages, attorneys’ fees

27


Trademark – Traffic Diversion

› Identifying and stopping use of another company’s trademarks by a competitor to divert traffic to competitor’s website

› Work with cyber investigators to identify those competitors unlawfully using another’s trademarks to drive traffic to their website and have the trademarks removed


When Information Spreads

› Recent celebrity cases – nude photo spread

› More than 20,000 images

› Need search technology to find images, contacts

› Cyber investigation/technology company• Can provide all the places to send C&D / DMCA

• Can monitor real time and send contact where to send C&D / DMCA

28


Identifying Anonymous Reviewers/Posters


Cyber Investigation approach

› Using Cyber Investigators can be an easy, efficient, and cost-effective way of obtaining information regarding an anonymous reviewer

› If your company has an attorney, be careful when hiring Cyber Investigators, as attorneys must be mindful of potential ethical violations that could occur when using cyber investigation techniques

29


Legal Subpoena approach

› Before issuing a subpoena, attorney must check jurisdiction’s case law to see if issue has been addressed and if there is a viable claim

› Many courts follow the standard from (or similar to) New Jersey’s Dendrite Int’l Inc v. Doe No. 3 – plaintiffs must show:

(1) An attempt to provide notice to the anonymous defendants that their identities are being sought, and explain how to present a defense;

(2) Quote verbatim the allegedly actionable online speech;

(3) Allege all elements of the cause of action;

(4) Present evidence supporting the claim of violation; and

(5) Prove to the court the right to identify the speaker outweighs the First Amendment right of anonymous free speech


Legal Subpoena Tips

› You want to pick jurisdiction where you can file, also easiest to subpoena

› Federal

› States

• All states have different standards

• CA: CA-licensed attorney must sign

• IL: Open new matter

• NJ: Follow rules of both states; need court approval in NJ first before subpoena to another

30


Doe Subpoenas in 3 Steps

1. Subpoena 3rd party website/host for personally identifying subscriber information

2. If only an IP Address is obtained, look up the Internet Service Provider (ISP)

3. Subpoena ISP for account holder information based on IP Address (specific time, date)


Forensic Exams

› Online attackers often attempt to cover their tracks by deleting computer data – but evidence suggesting relevant data can be discovered through forensic analysis

› Can explore when pertinent info was erased and whether or not it was normal practice to make the deletions

› Can find out what type of wiping software has been used

› In some cases, possible to find pieces related to the deleted information (such as metadata), which could provide info regarding: 1) when a file was installed; 2) whether the file was modified and when; 3) when the file was deleted; and 4) info about the data contained within the file.

31


Choosing the Best Solution


Choosing Right Approach Involves Balancing of Factors

Harm Cost of Response Risk of Response

Likelihood of Success

32


Law of the Instrument

I suppose it is tempting, if the only

tool you have is a hammer, to treat

everything as if it were a nail.

– Abraham Maslow (1966)

“”


Use of Outside Consultants

Client

33


Combine Knowledge of PR, Cyber Investigative, Legal Experts


The Problems and Solutions Will Be Rapidly Changing

34


Questions???

Whitney C. Gibson

Vorys, Sater, Seymour and Pease LLP513.723.4823| [email protected]

35

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