#45 – Defending your reputation from defamation, libel laws explained, and the sordid industry of fake court orders

#45 – Defending your reputation from defamation, libel laws explained, and the sordid industry of fake court orders

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Just because you don’t like what someone has written about you, doesn’t mean you can sue them for defamation!

Each week, Erin Jones and I take a look at the most interesting reputation management stories, answer your questions, and share valuable ORM tactics. In this week’s episode:

  • WordPress.com explains how it handles defamation on its blogs. We explain how the process works, how to get defamatory content removed from the web, and why you shouldn’t try to fake a court order.

If you have a question you would like us to tackle, please leave a comment below or on my Facebook Page.

Transcript (forgive us for any typos):

Andy Beal:                  Welcome back, and we’re going to do something a little bit different this week. Looked around the stories for a Reputation Roadkill or Reputation Rainmakers. Didn’t see anything that was jumping out to me, but I did happen to read a story over at Techdirt, and it was interesting because it was penned by, I think the WordPress.com team. They were explaining the standards that they have for removing defamatory content from WordPress.com blogs. That kind of got my attention. I thought we would spend a few minutes this week talking about the difference between defamation and something that’s a negative review and how you can handle each of those, but let me tell you, just read a couple of sentence from the article because it’s somewhat lengthy, but this kind of sums it up. Here’s the quote.

“The threat to legitimate speech posed by the notice and take down process is behind our policy for dealing with defamation complaints. We do not remove user content based only on an allegation of defamation. We require a court order or judgment on the content at issue before taking action.”

Erin, we see that with a lot of different publishers and search engines, and it seems like it’s pretty fair because they don’t want to just start removing things from their index or their service just because you don’t like something. They want a judge to confirm that, “Hey, yeah, this is defamatory.”

Erin Jones:                  Absolutely, and I think that this is a really tough spot for publishers to be in, holding the gavel on what’s good and what’s not, so I think when a court can come in and say, “This absolutely looks defamatory,” then it makes more sense to move forward with taking something down.

Andy Beal:                  Yeah, and it’s to protect themselves because if they start making that judgment, then you could argue, “Well, maybe they should’ve made that decision earlier on in the process and not allow it to be published,” or maybe you argue that they have to edit out what is considered defamation. Then they get into the content creation and editing business, and that gets them into potential legal trouble there because now, they could be enjoined on any kind of lawsuit because the person can claim that, “Hey, not only was this posted by somebody, but then Google, WordPress, Yelp went ahead and made an edit,” and now, they’re, instead of just hosting and publishing, they’re kind of part of the problem. I think it made sense from that perspective as well.

Erin Jones:                  I agree, and I think that if they were just going in and, like you said, becoming part of the publishing process, editing things, then we’re getting into some really dangerous territory as far as biases and possible political leanings. I think it’s a lot of where people are ending up today with mainstream media feeling like they can’t always trust what’s being read because the publishers are controlling the narrative. I think WordPress is saying here that they absolutely do not want to control the narrative, but that this is a really a tightrope walk.

Andy Beal:                  Yeah, it is. I speak to a lot of people that come to me and they want help with a reputation issue, and 95% of everybody I deal with is the kind where they’ve got a negative review or some scandal or issue has happened to themselves or a company, and they really want to work to get it cleaned up, not only the actual underlying issue, but they want to get the search results cleaned up, the review site cleaned up, that kind of thing, but there’s a small percentage where it’s clear it’s defamation.

I may refer them to an attorney that could help them because getting, it’s an opening case, an open-and-shut case of, “Hey this is clear defamation. It’s obvious you’re going to win this,” you’re looking at around $10-15,000 to have an attorney file that complaint, go through the process, get a court order, which you can then submit to the search engines or to, in this case, WordPress.com, whereas if it’s a case of just trying to rebuild something or trying get something negative pushed down in the search results, that could be 40, 50, $60,000, but here’s the thing. You can’t just claim something’s defamation just because you don’t like it. The laws here, at least in this country, there’s a number of boxes that you need to be able to check. Let’s go through those.

One is, it has to be false. It does actually have to be something that’s wrong, but it also has to be presented as fact and not just an opinion. Thirdly, it actually needs to injure someone’s reputation. You can’t just say, “Andy Beal likes to eat cucumbers.” As heinous as that is in my personal opinion because I hate cucumbers, it’s not actually going to injure my reputation. I can’t point to any loss business because of that. Then there’s a final layer, if you’re super famous or a politician or a movie star, then you actually have to prove intentional malice, Erin, so you actually have to prove one step further, and that is you did all of this to try and harm their reputation.

Erin Jones:                  Right, and I think people throw around words like defamation and slander really freely. I’ve had some people come to me and, like you mentioned, say, “I want to take this on,” and it’s really, really hard to prove. Now, say somebody said that you hated cucumbers, and your main client was the Cucumber Growers Association of America, that might change the narrative a little bit, and it may actually give you a case because now you’re losing income, but this is one of the more stressful parts of our business for me just because there are so many variables, and it’s really, really hard to say.

I was reading an article this morning that said, “Out of about 360 product liability cases that were studying defamation, 40% were one; however, only three of those cases resulted in punitive damage awards.” You’re spending a lot of money to go to court, and a lot of money to try to get this resolved, and unless is someone is very, very grossly negligent, you’re probably not going to even get your money back from going to court. Like you said, is it better to just try to move forward and recraft your reputation from here forward, or is it really worth it to go to court and try to fight all of this. I think that, really, unless you’re incredibly wealthy or very, very high profile, oftentimes, it’s better to just let this stuff go and get buried in the search engines.

Andy Beal:                  We often, like you said, we confuse what’s defamation and what’s just negative opinion, but then likewise, on the other side, you can’t make a defamatory comment and then hide behind just tagging on the end, in my opinion. It does kind of go both ways. We see where consumers and individuals will leave reviews, and they stray away from facts and opinion and start speculating or deliberately making false allegations and defaming an individual.

As a consumer, we have to be careful too that when we write a negative review that we understand these libel laws and understand that defamation is, it doesn’t have to be the entire piece. You could be 90% opinion, but then you take 10% of your review and you stray into the realm of making a false claim that can hurt their business, for example, you said, “They don’t have liability insurance, and they employ people that are maybe illegal citizens,” or something like that, and you don’t know that for sure, but that could hurt their business. Well, that 10% of your review, which was not needed, is now going to get you into trouble, and someone can still sue you for that 10%, even if the remainder of it is pretty accurate.

Erin Jones:                  Absolutely, and I think people forget, sometimes, when they’re leaving reviews. The Internet is still kind of the Wild West, and when people are upset, they will spout off or think they’re being funny and not realize that it’s not only affecting the business owner or manager that they’re upset with, but all of the employees, and it’s really looking poorly upon the reviewer too. There are just so many angles of this that I find dangerous and frustrating, and it really, really goes back to being transparent and genuine, whether you’re the business owner or the customer. If you don’t say anything that’s not true, then you don’t have a story to remember, something I tell my kids all the time.

It really, I think, comes into play here, and also there’s the definitions between slander and libel. There’s verbal accusations, which is slander, when someone says something verbally about you. I believe that can also play over to when you say something and it’s recorded and shared online. Then libel is written statements. You could even just be in earshot of someone and get yourself in big trouble.

Andy Beal:                  Yeah, or you, yes. You may go live on Facebook or post a YouTube video. Interesting thing I wanted to circle back on, you talking about transparency, there’s also this issue where we see a lot of anonymous reviews, and that doesn’t provide you any protection, and it also doesn’t really present too much of a problem if you’re the person being defamed because you can actually sue to either uncover the name of the person that was anonymous, or even if you can’t do that, let’s say it’s impossible to find out, you can sue, effectively, John or Jane Doe.

You basically sue this character, and if they can’t discover who it is, then the judge can just take the case and look at the evidence, and basically, the defendant is this John Doe, and you can still get a court order. You don’t actually have to know who’s behind it. If you’re leaving something anonymous, they could either discover who you are or still get it removed or still get a court order and damages against you, which, if ever they do find out that you’re behind it, you’re going to have to pay.

Erin Jones:                  Right. We see things, people edit Wikipedia entries, they leave, quote-unquote, “anonymous reviews,” even when people post things on Reddit, I don’t think people realize that there are a lot of breadcrumbs back to their computer or cellphone or wherever they’re posting from, but they can uncover who you are. People need to be careful.

Andy Beal:                  Yeah, and then this can get expensive. $10-15,000 if it’s a pretty clearcut case, but it could run into the tens of thousands, maybe more than that. We’re seeing a big increase in the number of black hat techniques when it comes to defamation. By that, we’ve seen everything from fake court orders that have been submitted to Google where it all looks official and looks like it’s been signed by a judge. At one point, Google was just taking them on the face of it and not investigating, and it was working.

Now, we’re seeing fake defendants where someone sues and they make up the defendant, and defendant basically agrees that, “Yeah, I did that,” and they present a settlement kind of thing. Now, even seeing fake complaints where it’s not even a positive or negative, there’s no real parties there. You’re just pretending that somebody is upset and hurt, and it’s all fictitious. Really, it’s playing to the games where maybe WordPress.com or Google or Yelp, they get that court order to say, “Hey, you need to take this down.” Whether it’s the search engine or WordPress getting duped or if it’s a judge getting duped because neither of the parties actually exist, somebody’s just concocted this all, it’s really a nasty business that I hope will eventually come to an end. Techdirt does a really good job of uncovering this stuff and trying to weed it out.

Erin Jones:                  They do. This whole thing just makes me wonder who has time for all of this? I really do. I wanted to ask you. I know you’ve seen things like this with clients that you’ve worked with in the past and things. Does it usually work out in their favor if you feel like they have a really solid case?

Andy Beal:                  Generally, if I feel like it’s a really solid case, then yes. What I will do is I will even just back out of the entire campaign. I won’t even take them on as a client. I just refer them directly over to an attorney. Sometimes, it’s kind of muddied, and so sometimes I work with … I had a client where some of the reviews, some of the things said were defamatory, and so they pursued those aspects of it, but there was … They say there’s no smoke, what is it, no fire without smoke, no smoke without fire, so they also had some issues that led other people to believe that that was accurate. I work with them on those parts to clean up.

You basically want to have a reputation that if anybody questions it, nobody would believe the allegations. If you’ve got a slightly tainted reputation, it’s going to be easier for everybody else to believe these defamatory comments, and so you kind of go hand-in-hand.

Then I … There’s those clients where they come to you, and they said it’s defamation, and you spend 10 minutes talking them through it, each point, and you quickly help them understand that no, it’s not defamation. They just didn’t like what was worded, and it’s somebody’s opinion, but it’s actually based on some factual circumstances. Those are the people where you just, you don’t even try for a legal resolution.

Erin Jones:                  Right. I actually made a mistake in trying to assist someone with a situation like that. They had actually won their court case, but they had other issues going on in the background that it just, sometimes, it’s near impossible to help them repair their reputation, but if it’s someone where you feel like it is a defamation issue and they really are running a good business, will you help them work on reputation repair on the side while they’re going through the court case so that they can get some things cleaned up while they’re waiting for something to be taken down or do you recommend they wait and see what the judge says before moving forward with something like that. Can those two areas get mixed up together and cause problems?

Andy Beal:                  It depends. It’s a good question because it’s not cheap. Reputation repair is not cheap. It’s more expensive than going through the legal process. If someone has got deep pockets and they really want to get this cleaned up as quickly as possible, then absolutely, we can do both parallel to each other and work on it. It probably wouldn’t hurt to do that anyway because, generally, somebody that comes to me, this negative item is showing up in the search results or it’s tainting their review profile, and the reason being is, is they’ve not worked on building a solid foundation for their reputation in the first place, so it’s easy for anything negative to show up.

We work on building a stronger foundation so that when this is ultimately removed by a court order, if something else happens in the future, they’re better protected, but for the most part, if it’s a pretty clear case of defamation, then generally, it’s a case of, “Hey, go ahead and just get this cleaned up. You need assistance in figuring out how to figure out how to submit a court order and all of that stuff,” then, yeah, I can definitely assist you with that. Generally, after that, it kind of becomes a little bit of a clean-up, but not as much because then we’re just reaching out to maybe newspapers that may have covered the story just to point out that this was a resolved, a defamation, and they should either remove their story or update it. It’s kind of just doing little bit of a clean-up that way, but generally, you get rid of whatever’s the main culprit that’s showing up, whether that’s on a blog or review site or in the search engines in general.

Erin Jones:                  You mentioned newspapers that may have picked up the story. What kind of a nightmare is it if something like, some serious defamation goes viral? Then does the judge order all of those places to take the statement down or just the original … I have so many questions about this.

Andy Beal:                  That’s a-

Erin Jones:                  I haven’t been this deep into it.

Andy Beal:                  Yeah, so you can obviously get everything removed from the original author. It would be a better question for an attorney as to how far you can go in terms of getting newspapers to take it down because they’re covering what’s been reported. That will be a little tricky. In fact, we may actually, what we might do is get somebody on the show that can answer those questions specifically because that would be a little trickier to get removed because if there was, if everybody that had defamation written about them online was able to get it removed, the newspapers would probably be out of business pretty quick because they’d be spending so much time just removing everything.

I think there’s a level of protection that they’re afforded because they’re reporting the news, and as long as they do, and this is what the problem is. They generally just do a follow-up and maybe print a retraction or a follow-up story, and the original story ends up staying in the archives with maybe an asterisk next to it with a small update, which generally doesn’t help you. But yeah, I mean, if it were me, I would be pushing to get all negative instances removed. Certainly in Europe, you’ve got the right to be forgotten, so it’s a little bit easier over there. Maybe in the next year or two, we may head that way over here in the US.

Erin Jones:                  It’s very, very interesting stuff.

Andy Beal:                  Yeah, it is. That’s our show for this week. We wanted to dive into this a little bit. If you have any other questions that we’ve not covered, then feel free to head to our Facebook page, which is /andybealORM, and just leave a question. If you have any particular case study maybe for yourself or for your, quote-unquote, “friend” that you want us to talk about, then we’d be happy to dive into that as well, but we’ll be back again next week. We’re keeping an eye on all of the stories that are going on. Whether they affect somebody’s reputation positively or negatively, we’ll bring them to you. As always, Erin will join me again because it’s always a delight to chat with you, Erin.

Erin Jones:                  Thank you. It’s wonderful to be here.

Andy Beal:                  Thank you guys for listening. We hope you’ll tune in again next time. Thanks a lot, and bye-bye.

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