Online Reputation Attacks Against Companies: Response Strategies for In-House Counsel

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Online Reputation Attacks Against Companies: Response Strategies for In-House Counsel Assembling a Multi-Disciplinary Response Team, Preventing and Mitigating Reputational Damage, Developing an Incident Response Plan TUESDAY, SEPTEMBER 30, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Melissa Agnes, President and Co-Founder, Agnes + Day, Montreal, Quebec Chris Anderson, Ph.D., Co-Founder and Group Head, Internet Defamation Division, Cyber Investigation Services, Tampa, Fla. Whitney C. Gibson, Partner, Vorys Sater Seymour and Pease, Cincinnati The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Online Reputation Attacks Against Companies: Response Strategies for In-House Counsel September 30, 2014 Whitney C. Gibson Vorys, Sater, Seymour and Pease LLP Melissa Agnes Agnes + Day magnes@agnesday.com Chris Anderson, Ph.D. Cyber Investigation Services, LLC chris@cyberinvestigationservices.com

6 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) Blogs/Blog Posts, Social Media Posts, Message Board/Online Forum Posts 6

7 Common Attack Forums: Locations of False, Defamatory Content Angie s List Better Business Bureau Blogs Complaints Board Facebook Media / News Outlets Message Boards/Forums Pissed Consumer RealScam.com Ripoff Report Search Engines Twitter WhoScammedYou.com Wikipedia Yelp YouTube 7

8 Online Reputation Attacks Come from Many Sources Dissatisfied consumers/customers Competitors Bitter employees Disgruntled investors Extortionists Bloggers wanting to get attention and earn $$ from ads on their blogs Activists 8

9 Blog Attack: MonaVie 9

10 Ripoff Report 10

11 Negative Yelp Review #1 on Google 11

12 Social Media s Impact on Crisis 12

13 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 13

14 Why In-House Counsel Should Have a Major Role Reputation attacks on the Internet are different Many legal tactics and issues involved: Identifying anonymous posters Convincing third-party websites to remove Cease and desist letters Court order/de-indexing material from Google, other search engines Defamation Employee agreements Privacy issues Social media policies 14

15 Problems Go Beyond Legal More in play than just legal analysis and strategies; solutions are complicated because they require an understanding of other areas/strategies Other considerations: SEO ORM Cyber investigation PR Customer relations Business strategies 15

16 In-House Counsel: Crisis Quarterback 16

17 Our Goal is to Put You in this Position Business Considerations Legal Strategies Crisis Response ORM IHC SEO PR Cyber Investigation 17

18 In-House Counsel: Crisis Quarterback 1) Prevention/Planning/Protection 2) Monitoring 3) Defending 18

19 Prevention/Planning/Protection Draft company policies to prevent attacks Social Media Customer Service Be careful Controversial policies can lead to public criticism New California law bars companies from inserting non-disparagement clauses intended to prevent customers from leaving negative online reviews (Sept. 9, 2014) 19

20 Union Street Guest House (August 2014) NY Post: Hotel that fines guest for bad reviews gets a taste of justice The Huffington Post: This Hotel's $500 Fine For Bad Reviews Is Backfiring Horribly The Guardian: Hotel threatening $500 'bad review fee' trolled with spoof complaints 20

21 Prevention/Planning/Protection Online Attack Crisis Planning Step 1: Identify risks Communicate with internal team / Understand roles (and vice-versa) Evaluate current incident response plan Step 2: Prevent preventable Plan for unpreventable 21

22 Planning for Unpreventable Risk Determine level of threat Categorize different scenarios (level 1, 2, 3) Identify red flags Monitor in real-time, all the time Identify trigger points for escalation 22

23 Planning for Unpreventable Determine level of threat Develop the response protocols Who needs to be involved and what are their roles and responsibilities? Develop pre-approved messaging 23

24 Crisis Response Managing real-time demands Prepare your communications in advance Work with team to pre-approve all messaging 24

25 25

26 Prevention/Planning/Protection Online Attack Crisis Planning Real-time internal communications are vital Have a system in place Assign someone to the task 26

27 Practice Makes Perfect! Crisis simulations are a great way to: Test your plan Test your team Strengthen key areas prior to experiencing a crisis 27

28 Prevention/Planning/Protection Building Online Presence Reviews: The best defense against negative reviews is a strong offense. Companies need systematic ways to generate positive reviews but yet most are terrible at it. Brand Front Page of Google: You must control the front page of Google/Yahoo!/Bing or someone else will. For big brands, comes naturally. For smaller brands, requires consistent effort. 28

29 Prevention/Planning/Protection Monitoring It s critical to be aware of what is being said online Those with large number of social media mentions, monitoring/alerts need to be on the scale of hourly For longer term, like material on Google search, monitoring can often be weekly 29

30 Prevention/Planning/Protection Importance of Early Detection Early detection, removal can prevent crisis Prevents information from spreading to other sites Address problem before more negative reviews Legal: Many ISPs only keep identifying information for a few months, so waiting too long could prevent your ability to identify the attacker Want to consider removal before statute of limitations expires (1 year in many states) 30

31 Defense: Responding to Routine Attacks Procedures for responding to routine attacks Policy for responding to: Negative reviews Wikipedia pages for company, execs Complaint websites (e.g. Ripoff Report) Develop review platform on own website 31

32 Example Early Contact with Poster (80-90% removed if contacted w/in 72 hours) Post Response with Phone # 1) 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 ) I'm very sorry to hear that your power button has fallen out, but happy to hear that you have been loving your experience with our razor! Our manufacturing process is such that it should not allow things like this to happen, and we will check into it right away. Thank you for bringing this to our attention. We are always happy to speak with our consumers about anything, so if you would like, please give us a call at ! 32

33 Defense: Responding to Serious Attacks Investigative Assessment Evaluate characteristics of attacker Assess current and potential harm May be necessary to unmask identity of anonymous/pseudonymous poster 33

34 Cyber Investigators / URO The best strategy comes from knowing your who is behind the issue If possible, you ID them If you can t ID, can you profile the screen name and learn more about them. Are they using language that might suggest they are tied to a much bigger movement? (Ex. Dox d, expect us, language consistent with blogger/social media pro) 34

35 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? 35

36 Identifying Anonymous Reviewers/Posters 36

37 How Identification is Done Magic Databases (usually only on TV shows) although database work plus hard digging sometimes pays off. Get to IP Address (multiple ways) Turn IP Address into a name (multiple ways) ** Myth: With IP address we can get lat./long. coordinates and know exactly where located. 37

38 Cyber Investigation Approach Using Cyber Investigators can be an easy, efficient, and cost-effective way of obtaining information regarding an anonymous reviewer Be careful when hiring Cyber Investigators, as attorneys must be mindful of potential ethical violations that could occur when using cyber investigation techniques 38

39 Doe Subpoenas in 3 Steps 1. Subpoena 3 rd 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) 39

40 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. 40

41 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? 41

42 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 Domain Authority (per Open Site Explorer): Wikipedia 100/100 Better Business Bureau 96/100 Yelp 94/100 Ripoff Report 82/100 Defamatory Ripoff Report post #2 42

43 Search Engine Ranking Examples 43

44 Specific Techniques/Solutions 44

45 Evaluating Various Options 1. Reconcile, offer replacement/refund 2. Contact Attacker: confidentiality agreement, negotiate settlement 3. Cease and Desist Letter 4. Removal: Convince 3 rd party websites to remove 5. Court order/de-indexing from search 6. Lawsuit 7. ORM / SEO 8. Crisis Response 45

46 1. Reconcile, Offer Replacement/Refund 46

47 Reconcile with Customer If the customer is unhappy with the service or product, offer to replace it This often results in them changing the review 47

48 2. Negotiating with Attacker 48

49 Negotiating Directly with Attacker Confidentiality Agreement Negotiate Settlement (May be necessary for very damaging attacks) 49

50 3. Cease and Desist Letter 50

51 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 51

52 Case Study: Ron Gordon Watch Repair 52

53 4. Removal by Author or Website 53

54 Removal is Often the Best Solution More efficient Cost-effective Damages often difficult to prove at trial 54

55 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 55

56 Contacting Websites Contact website, ask for removal if post violates Terms of Service (likely will consider removal if adequate explanation) EXAMPLE: Yelp 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. 56

57 Websites Will Remove Copyright, Trademark Infringement Threats of Violence Child Pornography Obscenity Impersonation Confidential Information Cyberbullying Other Illegal Content 57

58 5. Court Order / De-indexing from Search 58

59 Some Websites Have Stricter Policies 59

60 Ripoff Report 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 60

61 Glassdoor Court 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 61

62 Deletion From Google Search via Google s URL Removal Tool If original source has been changed, yet offending content still appears on Google 62

63 6. Lawsuit 63

64 Lawsuits Lawsuit Things to consider Does reviewer have an ulterior motive? Competitor Lanham Act/False Advertising Ex-business partner Personal animosity Extortion 64

65 Lawsuits Did the client suffer damages or 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 Are there easier methods to stop online attacks and remove the defamation? 65

66 Negative Review vs. Potential Defamatory Review Based on my recent lousy experience there last Sunday, I would not recommend this place. I have received better service elsewhere and it is doubtful I come back here. vs. This company is a complete sham! They made countless empty promises, they lied to me and stole my money. They are complete frauds! Don t do business with these scam artists. 66

67 Be Mindful of anti-slapp Statutes Many states have passed statutes to combat Strategic Lawsuits Against Public Participation (SLAPP) 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) 67

68 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 68

69 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 69

70 7. ORM and SEO 70

71 ORM / SEO ORM Online Reputation Management to bury bad results on search engines Most ORM post-event do not work well if damaging site is well-optimized Cost of clean up can be very large, often in the range of $75K+ per keyword Many attacks impact multiple keywords and Google Google Suggests. 71

72 8. Crisis Response 72

73 Crisis Response Today s crisis realities: 24/7 real-time news cycle Everything is public Not everyone fact-checks Everything has viral potential 73

74 Crisis Response Challenges: Getting ahead of the story and becoming the narrative of your own crisis. Being the credible source of information Meeting real-time demand Regaining control 74

75 Crisis Response The sooner you detect and respond to a threat, the sooner you regain control 75

76 Crisis Response 76

77 Crisis Response Understand who your audiences are and what they expect from your organization 77

78 Crisis Response Today s expectations include: Real-time communications Two-way communications Honesty, transparency Credible source of information Sincerity and compassion 78

79 Crisis Response So important! Plan ahead and work together. 79

80 Other Considerations for Handling Online Reputation Attacks Simply change business conduct causing negative posting Negative reviews can serve as great consumer research top businesses are using the information to make better business decisions 80

81 Issues = Opportunities When you plan for the negative and understand expectations of audiences, you can enable your team to transform a negative situation into a positive opportunity. This is where the magic happens! 81

82 How to Use Outside Consultants 82

83 Use of Outside Consultants Client 83

84 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) 84

85 Combine Knowledge of Crisis Specialists, Cyber Investigative, Legal Experts 85

86 Terms of Service Jurisdiction Solutions are Fact-Dependent Client s budget Search engine rankings Available legal claims Statute of Limitations Potential damage Removal Options Search engine strength Client s risk tolerance Attacker characteristics 86

87 Choosing Right Approach Involves Balancing of Factors Harm Cost of Response Risk of Response Likelihood of Success 87

88 The Problems and Solutions Will Be Rapidly Changing 88