PROTECTION OF ON LINE BUSINESS REPUTATION: THE LAW AND PRACTICAL REMEDIES

Introduction:

Most of modern day business promotion is achieved on line. Most business people reading this will soon have no choice. With the advent of hand held computers which, via wireless connectivity allow access to the web for most people most of the time, the web now occupies the central role in most buying decisions. Designing an effective web presence was unheard of twenty years ago, unusual for all but the largest businesses ten years ago, and vital for almost all business now.

Business people have now largely recognized that fact and have adjusted to the new market by designing websites and using Face book and even Twitter as well. A business without a website has the same lack of credibility that a business without an office address had thirty years ago. It is now a prerequisite to being in business.

Business has been much slower in adjusting to a less obvious but equally important aspect of web presence-combating the negative attacks that one can suffer from third parties.  Indeed, many business people design their own website and then forget about the web as a tool, concentrating on the other aspects of running a business.

The problem all businesses increasingly face is that a corollary to the spread of web sourcing for obtaining business is the growth in sites that can undermine your business and business reputation by use of negative reviews, indeed violently negative descriptions of poor performance or product. With the average consumer having dozens of choices on the web available for a service or product, a single negative review can lead to competitors obtaining the business.

And the problem thus created is unique to our day and age. The essence of the web is no centralized control. As discovered in various nations seeking to control information within their borders, there is no overarching authority who edits or reviews most of what goes on line. Indeed, the international aspect of the web means that a negative review or hostile attack on one’s reputation can derive from Eastern Europe as easily as from  the home down the block and that review is not necessarily subject to California or even United States law. There is no requirement for the reviewer to be forthcoming in giving their identity or any economically viable way to locate most reviewers who lie about their identity.

The possibilities for an unethical competitor are greatly enhanced. Consider:  one can easily arrange to have an inaccurate and even libelous review or comment placed on line from a location in Moscow, having it anonymous but describing in detail your failures in providing a service or product. You do not know who the person is. Any attempt to trace simply results in your determining the review stemmed from Russia, and what relief is realistically possible in that case?

There are powerful legal remedies for Trade Libel available for California businesses, as well as for Intentional Interference With Prospective Business Advantage and Slander and Libel. But how does one confront an possible international or even domestic libel by an anonymous writer? If one can demonstrate that a competitor was the source, perhaps the traditional law suit in a California court would be possible, but such proof is seldom easily obtained. In short, the relief that worked for a century to protect businesses from such attacks is often no longer always effective.

For that matter, how does one confront the more common attack from a local patron, often anonymous, who posts a review or blog that attacks you with inaccurate or biased information? What relief is available, both legally and practically? 

That is the theme of this article.

Discovering the Attack:

A client of ours suffered for three years from a virulent attack on Yelp and since he never utilized Yelp, never even know of the review placed on the site by a mentally deranged individual he had refused to assist.

An equally damaging attack can appear on a Blog or the website of an organization that is only remotely related to your business field. The average business owner does not routinely check all such sources and may never even know why the business is being adversely affected.

Various businesses are now springing up to monitor reputation so that the person or business can know when such events occur and some of the entities provide remedial assistance of more or less effectiveness.

The three currently used quite often are:

REPUTATION.COM

Reputation.com offers online reputation management tools. They offer several different packages that range from controlling your business reviews as well as controlling your personal search results and removing private information that may have leaked onto the Internet. We will focus on the business review aspect of the site.

Reputation.com has a plan specifically for protecting online business reputations. The goal is to increase positive content and block out any misleading content. They offer a variety of pricing plans dependent on how much protection you would like.

An overview of the services provided includes the following:

1. Review Monitor – A dashboard is provided that shows your business’ review information. The dashboard is continuously updated and can be monitored as often as you would like. 
2. Review Boosting – Pre-written requests are provided to request honest positive reviews which help build your online reputation.
3. Review Alerts – Anytime your business is mentioned, you will receive automatic alerts, so that you can review them as soon as possible.

VISIBLE.ME (now NAYMZ.COM)

Visible Me aka Naymz.com combines social networking and online marketing to help establish your reputation and help your business grow “professionally.” You are able to build a profile page for your business as well as share ideas and opportunities in the Naymz community.  You are also able to build connections throughout your network.

The site also invites you to invite friends and colleagues to vouch for your honesty and integrity anonymously. The website also offers a monitoring tool which allows you to keep track of what is being said about your business on blogs, news sites as well as other online communities.

METAL RABBIT MEDIA

Metal Rabbit Media is another online reputation management resource. Metal Rabbit Media evaluates what is said on the Internet about your business and attempts to find ways to improve your reputation that may be missed otherwise. The goal is to positively reinforce your business’ reputation.

Metal Rabbit Media also monitors websites and blogs for references to your business. The company searches for anything that may affect your search results. When your business is mentioned, you are informed and any action that needs to be taken can be as soon as possible. Metal Rabbit Media will also help you with setting up your business website.

As the problem increases in scope, one may be sure that dozens of other companies will arise providing information as to what is happening to one’s on line reputation. This is not a minor task, of course, and vital if you are to protect the reputation. We recommend to our clients use of those services, at least from time to time.

However, none of the above entities truly provide any relief assuming one’s reputation is unfairly impugned. Their main thrust is to provide information and assist in creating one’s own web presence. That is good but simply not enough when confronted with slanderous attacks.

It is important to realize that the locations of internet attacks are increasing. Blogs are now increasingly popular and can be started by anyone. They are a common source of defamatory opinions. Even more transitory are Twitter Feeds which are, essentially, live messages created by a single person but instantly available worldwide.

The Laws that Protect:

Note that in a free market negative reviews that are based on accurate information or on personal opinions are not only  perfectly legal, but are usually not actionable. One is entitled to voice one’s opinion as to the quality of product or services provided and one is allowed to compete in a free market, including attacks on one’s competitors, without liability so long as the attacks are based on opinion and truths.

The legal actions that exist are based on violation of laws regarding slander or libel or some other statute as described in the referenced articles. California law has long existed that prohibits Trade Libel and related business torts such as Intentional Interference With Prospective Business Advantage and the reader should review those articles for a full description of the elements of those causes of action.

Assuming you obtain evidence that a competitor or malcontent has launched a program to wrongfully libel your business, and that person or entity is within a jurisdiction that enforces United States law, then relief in the traditional legal system may make sense. Often a disgruntled employee of that competitor is the source of such information and combined with a computer expert can substantiate such intentional harmful activity.  As described in our article on Hard Drive Discovery in Litigation, such evidence can be obtained in standard discovery in litigation and is almost impossible to erase from the hard drive.

In short, our existing system can offer relief especially if the source of the attack is a competitor and evidence linking the competitor can be obtained. In that respect, the fact that a website is utilized is essentially irrelevant to the cause of action, merely the conduit by which the libel and slander was achieved.

Note that web site providers (also referred to as internet service providers or “ISP’s”) (Google, Yahoo, etc.) are usually not liable legally for libel or similar attacks on their website. The Federal Courts have granted extremely broad protection to ISPs so long as a criminal statute is not involved, based on the rationale that the providers simply do not have the resources to audit the massive amount of information placed on their sites.

Internet service providers (ISP's) are granted said immunity from liability for republication of any defamatory statement made by another under Section 230 of the Communications Decency Act (47 USC Section 230).  Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) - defendant prevailed using Section 230 as a defense to liability for defamatory speech initiated by a third party. Also see Barrett v. Rosenthal, 40 Cal. 4th 33 (2006) which held that immunity under Section 230 applies whether the provider or user is viewed as a publisher, distributor or secondary publisher of alleged defamatory content.

It is important to conduct a rigorous cost benefit analysis before engaging in litigation predicated on libel or slander on a website. Litigation is expensive and time consuming and can create adverse publicity unless the falsity of the information is clear. One should commence the effort by a carefully structured demand letter which may result in a retraction that can be published on your website and should be published on the offending website. Only if that demand is rejected should litigation be considered.

And before filing any legal action against an individual for web content, the danger of an anti-SLAPP counterclaim must be considered.

The anti-SLAPP (Strategic Lawsuits Against Public Participation) laws apply to any case filed in California. Twenty-seven states have adopted anti-SLAPP laws to protect the right of free speech and California is one of them.

California Civil Code Section 425.16(a) states “…there has been a disturbing increase in law suits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech. The Legislature …declares that it is in the public interest to encourage continued participation in matters of public significance, and that this…should not be chilled through the abuse of the judicial process.” Section 425.16 (b)(1) states “a cause of action against a person arising from any act of that person in furtherance of the person’s right of…free speech….in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” Section 425.16 (e)(3) defines one of the acts in furtherance of a person’s right of petition to include “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.”

The key aspect is that the content must pertain to a matter of public interest. However, that concept has been defined quite broadly and one may be sure an aggressive defense counsel will claim that the defendant was directing his or her comments to protect the public interest. If the statement made by the defendant is determined to be true by the court and it seems unlikely that the plaintiff will succeed, there is possibility that the case will be dismissed and the filing business will have to pay the defendant’s legal costs.

On the other hand, the court may deny the motion to strike if it determines from the information provided by the Plaintiff and Defendant that a defamation claim was established. The plaintiff must be able to show that there was (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.

Aside from seeking relief in court for libel, what other relief is practically available?

Relief Outside of Court:

1. First, attempt to go directly to the web source to ask them to remove the offending publication. Perhaps your business is on Yelp, Google or a local business center site. You should contact the webmaster of the site of the origin of the review and request that the false or biased review be removed. When this is attempted, it would be wise to include as many details as possible demonstrating falsity and/or as much proof you have available that the information in the review is wildly biased.

Each site has its own internal rules as to removal of offending information and perseverance is what is usually required as one seeks to find relief internally. The critical item is to demonstrate that the information is false and to prove that fact to the provider. If the provider refuses to remove the material, a follow up letter from a lawyer is often very effective. Even giant web sites do not like to waste time and money defending an opinion that is not even theirs and we have had many instances in which websites removed offending opinions upon receipt of the attorney letter.

The problem arises when information is not easily demonstrated to be false. (e.g. a claim that the real estate broker was clearly not interested in doing more than amassing massive commissions and cared nothing for representing the client.  …”He was spending the commission in his mind before the deal was done and cared nothing about what the effect would be on my family.”) Is that a factual inaccuracy or an opinion? Most providers would be loathe to remove such a review based on your statement that you truly cared about the client.

One factor in their decision to remove may be the fact that they are in business. Many such providers offer advertising for businesses and if you are one of their customers we have seen instances in which the website was remarkably willing to remove an offending inaccurate review. While this may seem a form of extortion, the providers reason that a reputable business that would use their services deserves a little more respect than not.

Of course, this approach is the simplest and will not always work. At times, a review will be removed and will still show up during a web search. When this happens, it may be necessary to hire an online reputation service.

2. Another option available to combat negative reviews is to ask satisfied customers to leave positive reviews. The goal here would be to fight any negative reviews with positive ones. Most customers who are happy with a product or service are willing to put a good word in for a company they enjoy working with or a restaurant they enjoy going to. Along with this, there is always the option of offering a discounted service or free meal to those customers who agree to write a review though this may smack of bribery and should be avoided.

And interesting aspect of the positive versus negative review process is that some sources of review (Amazon on its listed products, for example) list the reviews in the order received, so a dozen positive reviews can overwhelm a negative review.

3. Also, some review sites offer the option of being able to respond to comments left by consumers. Certainly one can refute facts provided though whether this will truly convince a prospective customer is questionable. If you respond to the negative review with a calm explanation or, if you were actually in the wrong,  perhaps offering a discount, or apologizing for the inconvenience, the reviewer may remove their comments and prospective customers may be impressed. Even if they do not remove the offending comment, those who see the business owner’s response may be swayed positively by it.

4. Creating an effective web presence of your own may do much to counter adverse publication. Most potential customers will be traveling to your website once they see the attack and that is your forum to respond in a professional manner and, better yet, provide testimonials from satisfied customers. Awards granted, examples of past successes, etc. can also do much to alleviate the negative reviews. One client of ours countered a determined dissatisfied customer with offering a money back guaranty good for thirty days, stating directly on his website that…” he was putting his money where..” his attacker’s “mouth was.”  It worked.

Conclusion:

A wise business will take the time and energy necessary to create a full internet presence plan and it should go far beyond merely designing an off the shelf website.

1. Determine how you will know if your reputation is being attacked.
2. Create an action plan for what to do when it is attacked…for it will be.
3. Create a library of satisfied customer reviews that you can use when it does happen.
4. Be ready to aggressively move to protect your reputation with legal relief only used as a last resort.

Does it matter?

Next time you are walking down the street in a major city, stop and count the number of people looking at the internet on their hand held devices. And realize that the number of users more than doubles about every twelve months.

An old saying was that one’s reputation was one’s most valuable commodity. That is still true but the arena to protect it is now digital, worldwide, and requires active and constant attention. You will never know the contact that was not made due to a review you have not even seen unless you take the time to look…and have a remedial plan in mind.

These Articles are to give the reader a general description of certain areas of the law. Legal advice is necessary to apply these legal concepts to your particular situation. The Reader should obtain competent legal advice before relying on the Articles. Return to Articles Index Page

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