REPUTATION MANAGEMENT IN THE INTERNET AGE ANDREW P. BOLSON, ESQ. Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A.

Transcription

1 REPUTATION MANAGEMENT IN THE INTERNET AGE ANDREW P. BOLSON, ESQ. Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A.

2 Introduction Andrew P. Bolson Attorney with Rubenstein, Meyerson, Fox, Mancinelli, Conte & Bern, P.A. in Montvale, New Jersey Lead the firm s privacy practice, in addition to practicing commercial litigation, real estate law and other areas Certified as a Information Privacy Professional/US by IAPP (International Association of Privacy Professionals) Authored numerous articles on issues affecting individual and business privacy President and Founder of the Privacy Initiative of New Jersey

3 Privacy Initiative of New Jersey Non-Profit founded to promote common-sense privacy legislation in New Jersey and in Washington, D.C. On the Initiative s Website, several goals are listed: Designate cyber-offer in every municipality Statewide Chief Privacy Officer Protect Education Records Amend Public Record Laws Amend Data Breach Notification Law Reexamine 230 of CDA Limit use of Social Security Numbers Initiative also aims to educate students about privacy issues and to foster communication between relevant stakeholders

4 Where we going?... What is Reputation Management? The importance of reputation on the web The laws affecting online reputation management Europe v. United States What to do after an online reputation problem? Prevention Discussion

5 What is Online Reputation Management? Controlling the message Getting in front of bad press It s an opportunity to promote what your company does well SEO (Search Engine Optimization) takes time, money and resources but there is no magic answer Dealing with reputation management is part legal,part PR, part science and part journalism Affects every business (scalable) and every individual

6 Why is Reputation Management Important? First impression is everything Google Result Page Rank Average Traffic Share % % % 4 8.1% If negative information ranks predominately, can prove problematic for business Websites like Yelp, Google+, Citysearch, TripAdvisor, Twitter rank highly on search engines

7 Why is Reputation Management Important? Dimensional Research Survey of 1046 individuals in April 2013 Survey found that 45% share bad customer service experiences and 30% share good customer experiences via social media Two-third of survey participants (63% for negative and 69%) recalled seeing online reviews Review sites were the most common place to read a negative review of customers service (39%) and Facebook was most popular place to read positive review of customer service (44%) Online reviews impact buying decisions according to survey. True of positive reviews (90%) and negative reviews (86%) A Harvard Business School Study published in September 2011 found similar results Study concluded that a one-star increase in Yelp rating led to a 5-9% increase in revenue Study also found that customer response is guided by the number of reviews and whether reviewers are qualified as elite

8 What is the Takeaway Review sites have enormous power, both good and bad Good reviews and positive feedback can drive traffic and increase revenue. On the other hand, bad reviews (sometimes opinions that are biased and not based upon fact) can have dramatic consequences

9 Yelp Business owners can flag reviews Yelp may remove content that is against content guidelines (ex. review contains a threat or is harassing) Yelp utilizes a filter that works through algorithms The filter attempts to make sure reviews accurately reflect the business Reviews from people with no previous reviews will be filtered Can be frustrating for businesses because business has no control over filter

10 Laws Impacting Reputation Management Section 230 of the Communication Decency Act (47 U.S.C. 230) Digital Millennium Copyright Act (DMCA) Ancticybersquatting Consumer Protection Act (ACPA) Defamation Laws Anti-Slapp Laws

11 Communication Decency Act Section 47 of Title 47 of US Code No 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. Civil liability No provider or user of an interactive computer service shall or user of an interactive computer service shall be held liable on account of (a) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. What s the impact of the law? Limits individual and company s ability to remove harmful content

12 Digital Millennium Copyright Act(DCMA) The Online Copyright Infringement Liability Limitation Act ( OCILLA ) 17 U.S.C. 512 Creates safe harbor for online service providers from liability against copyright infringement provided that they remove or block infringing content when notified of an infringement from copyright holder Under the law, posters of the alleged infringing content can challenge the online service providers decision by a counter-notice arguing that content should not be removed If counter-notice, individual or business notifying online service provider must file lawsuit in Federal Court. Otherwise, material can be reposted Does not apply to trademarks Copyrights must be registered with U.S. Copyright Office Numbers of takedown requests are massive. Google received 33,742,467 URL removal requests in January 2015

13 Anticybersquatting Consumer Protection Act (ACPA) 15 U.S.C. 1125(d) Law intended to thwart cybersquatters who register domain names with third-party trademarks with intent to sell domain name Under law, trademark owner may bring cause of action against domain registrant who: Register intends to profit from mark that is identical or confusingly similar to trademark Provides for actual damages or statutory damages and injunctive relief, including transfer of name

14 Uniform Domain Name Dispute Resolution Policy Policy adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) Arbitration proceeding to have a domain name cancelled or transferred Quicker and cheaper than filing in Federal Court (no damages) Trademark owners can seek relief if: Domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and You have no rights or legitimate interests in respect of the domain name; and Your domain name has been registered and is being used in bad faith.

15 Defamation Law Basic Definition Must be a defamatory statement which is false that is made to someone other than the plaintiff What is a defamatory statement Generally a statement that injures the reputation of the Plaintiff or exposes them to hatred, contempt or ridicule Causes the Plaintiff to lose goodwill or confidence from others Injures Plaintiff s business Opinions are not defamation

16 Strategic lawsuit against public participation (SLAPP) Lawsuit intended to censor speech and silence critics Lawsuit started to force Defendant into submission and taking the desired actions Lawsuits often are defamation lawsuits. Merits of the lawsuits can be doubtful 28 states have SLAPP legislation (laws differ greatly) California is the most famous Defendant can file a motion that stays litigation. If Defendant shows that lawsuit based on protected rights (ex. First Amendment rights), burden shifts to Plaintiff to show reasonable probability of success Successful Defendants obtain mandatory attorney fees New Jersey does not have an anti-slapp law Pennsylvania anti-slapp law is about environmental matters only 27 Pa. Cons. Stat & (2000)

17 Europe v. USA The Right to be Forgotten Based upon Court of Justice of the European Union decision dated May 13, 2014 Case involved a Spanish citizen (Mario Costeja Gonzalez) complained that an auction notice of his repossessed home on Google s search results infringed his privacy rights because the proceeding concerning him had been fully resolved for a number of years and hence the reference to these was entirely irrelevant. Court decided that search engines must remove links with information that is inaccurate, inadequate, irrelevant or excessive Right to be forgotten is not absolute but is balanced against other fundamental rights, such as freedom of expression and of the media Requires a case-by-case analysis Key takeaways: Only applies to search engines Not absolute Only individuals can apply Only applies for European searches (not worldwide) European Governments want to extend it

18 Europe v. USA The Right to be Forgotten Cont. Google has power to make determinations (62% of search engine market share) When evaluating your request, we will look at whether the results include outdated information about you, as well as whether there s a public interest in the information for example, we may decline to remove certain information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials. According to Washington Post article dated August 4, 2014, 53% of requests for removal from Google are granted and additional 15% are granted after more information has been requested and provided Does the Right to be Forgotten go to far? Does any Right to be Forgotten make sense? (expungement, defamation) Story of Pianist Dejan Lazic Asked Washington Post to remove a 2010 review by Post classical music critic Anne Midgette that-he claims-hurt his first page rankings

19 Web Companies as Judge Each web company has their own terms of service and policies with regard to removing content Google (according to removal policy) Removes ID numbers, bank account numbers, credit card numbers and images of signatures Do not remove date of birth, address and telephone number Does its best to remove offensive images and videos or hide them in search results. Facebook (Community Standards Policy) No content making a direct threat to public safety Removes content promoting self-harm Does not tolerate bullying or harassment Does not permit hate speech No pornography Facebook has ultimate discretion to remove content

20 Web Companies as Judge Currently, the Web Companies have the ultimate discretion to remove content Google s Transparency Report Google received a third-party court order forwarded by a Tampa pharmacist asking Google to remove two news articles from search results relating to his arrest for sexual solicitation of a minor of the Internet not removed Google received a third-party court order to remove six search results linking to news articles and to claims on the Ripoff Report website that allegedly defamed a company by suggesting it was involved in illegal activities Google removed link to Ripoff Report but not the news articles Google received three court orders from different individuals that were addressed to third-parties, along with requests to remove 452 search results that linked to websites that allegedly contain defamatory content Google removed 70 search results that fell within the scope of the Order What is the theme: Google does remove content but not all content, even when directed to by a Court Web Companies no matter what have no liability

21 Gripe Sites/Revenge Porn Sites that allow individuals or businesses to post gripes about other individuals or businesses Examples of gripe sites: Pissedconsumer.com, consumeraffairs.com, RipoffReport.com, TheDirty.com, Cheaterville.com, etc. Many charge fees to have content removed or limited Courts do not consider such fee programs extortion Levitt v. Yelp However, websites may be considered unfair trade practices by FTC In re Craig Brittain Gripe Sites tend to be very difficult to deal with (do not remove content, answer subpoenas, often foreign companies) Better luck with Google

22 What to do if faced with Online Reputation Issue Determine the nature of the issue (issue isolated or widely accessible) Determine course of action Ignore, reach out to individual or business, cease and desist or legal action Pros and cons of each action must be weighed Story of Sarasota computer graphics company Razworks

23 What Not to Do Union Street Guest House Maintained a policy that fined guests $500 for negative reviews Backlash was severe on the Internet Deny the problem or argue with reviewer Pay people to post positive reviews (especially on Yelp!)

24 Preventative Measures Know what information is out there Set up Google Alerts or track with tools such as Social Mention so you can be informed of the information (good and bad) existing on the web Do not ignore social media because they have good credibility with search engines Search Engine Optimization Control your message! Pump good news with Press Releases, Blog Articles, etc. Do not be afraid to ask for reviews from customers Be honest. Tell customers that they care about honest feedback Monitor trademarks and domain names with company s brand name or seek to obtain domain names (individual can be trademarked if famous) Domainskate.com Trustmarks Tells customers that you care about privacy Obtaining a privacy seal means that company has passed minimal security requirements BBB online privacy program TRUSTe PrivacyBot

25 Discussion What if Mario Costeja Gonzalez had a common name (think John Smith)? Would the Right to be Forgotten exist? Is it right that individuals can request to have information deleted about them? Is this against Freedom of Speech/Press? Are we changing history? Is it fair that websites deny businesses the right correct incorrect or defamatory information? Are websites given too much control over the content on their own sites?