By Eric Parzianello, Attorney, Beals Hubbard PLC

There’s not a national radio, television or newspaper company that hasn’t been sued for allegedly publically maligning someone’s character or making libelous statements that could be perceived to damage a company’s reputation. But maligning a reputation on the internet has become another matter altogether as companies have fewer options restore their good name in the face of angry internet missives from customers, partners or employees.

There are now countless blogs, websites and even Facebook pages dedicated to doing nothing more than dump misinformation and destroy the reputations of individuals and companies. And unfortunately, with all the legislation and legal strides that have been taken in the last 20 years to rein it all in, the world wide web continues to be more like the wild wild west.

Our legal marketing consultant, Mark Gilman, President of Decus Strategic Communications, handles not only legal marketing, public relations and strategy in his business, but specializes in online reputation restoration. “Outside of some tricky legal maneuvers, the best defense is offense,” he says. “You’ve got to really ignite an extensive SEO (Search Engine Optimization) campaign to try and make sure you are negating the reputation damaging stuff online by posting a flood of positive stories.”

One of his clients, the owner of a professional sports, “experiential photography” company, is a good example of a small business with few resources to fight people with a lot of free time who spent countless hours trashing his company’s reputation on a website called complaintsboard.com and on Facebook. “The owner refers to this as internet terrorism,” said Gilman. “They’ve single handedly destroyed his reputation to the point where he can no longer raise money for his company because of all the negative chatter.”

The company owner, who refers himself as a “serial entrepreneur,” is not just some fly-by-night guy working out of his home. He helped launch several successful national companies before embarking on this latest venture two years ago. Like many small business owners and startups, he was immediately successful but then hit a cash flow crunch because of late reimbursements on photo orders with the company he had contracted to house them and the extremely large upfront fees he had to pay to get into professional sports arenas. As a result, he was late paying some photographers. Ironically the person who started the online campaign of reputation destruction was a photographer who the company owner refused to pay because he used the company camera and time to take personal pictures he ended up posting and trying to sell on his own photography website, a violation of the freelance contract Red Bow’s photographers sign before embarking on the job. The photographer then set himself on a reputation bashing campaign which issued threats, called the owner a coward, crook, narcissist, scam artist and even a drug dealer (an obviously baseless claim which he did manage to get removed). In addition, the photographer, who according to his web bio has never had full time employment and lists 23 jobs since 2000 before becoming a full-time “freelance photographer,” has had ample time to bash the company’s online reputation. He even took the time to send a threatening e-mails including to the owner (actual e-mail);

XXXX Coward,

I came by to see you last week, Coward. You closed your office down...what a Coward you are. We will find you, Criminal... and you will pay me for the work I did one way or another. You can run but you can't hide forever. The Internet is awesome...it sort of follows you with out much effort. You wife and kids must be so proud of you. having to run and hide like the low life you are. The good news is, I'm not violent, but I bet you have a few pissed of people that are much less tolerant than I am...that's probably why you are running

It would have been so much easier to cut me a check...in hind site I bet your rethinking that move, huh?

Take a look in the mirror, Sociopath...do you like what you see?

My LEGIT businesses take me to (your area) frequently, so don't worry...we'll be seeing each other again :-)

The company owner took this e-mail to the local police, but was dismissed because no “physical threats” were made. He is obviously worried about his own safety and that of his family. “It really makes you wonder how safe anyone is in these situations,” the owner said. “You really can’t look for background on my company right now without running into all the negative stuff this guy’s created online. So banks and potential investors see this stuff and they run. It doesn’t really matter if it’s true or not. It’s out there and there’s nothing I can do about it.” But even an angry Freelance photographer needs help and a place to post his anger. The website complaintsboard.com is happy to oblige. The company apparently makes its living from Google ads and carefully placed web advertisements for Visa when complaints against companies like Bank of America are posted. And it’s not as easy as asking the folks at complaintsboard.com to take the misrepresentation, attacks and character assassinations off the site. Complaintsboard.com lists no means of contacting the company, no parent company and based on the links to referral companies is apparently headquartered in India.

So what does a guy like the photo company owner do to fight someone who spends his days trashing his company’s reputation and threatening him personally? Other than hiring people like Gilman who clean up reputations online for a living, the legal remedies include;

From a personal standpoint, the company owner should take out a Personal Protection Order, just so there’s public record of the threats the freelancer has been making and his efforts to get police attention. As for the company, a suit for defamation is always an option as shown by a recent Tennessee filing. In that case, reported in the Knoxville News Sentinel, “a Knoxville marketing firm filed a $2 million libel lawsuit against a former client claiming comments posted on social media sites Facebook and Twitter have hurt its reputation.” In those types of actions, court orders to remove certain defamatory posts may be sought. These cases require knowledge of the identity of the poster which cannot always be determined when posters assume anonymous user names.

Determining the liability of the website or blog operator is another option, though operators of blogs are generally immune from liability for defamatory statements posted on their websites. However, as one blogger notes in an article devoted specifically to complaintsboard.com, if the operator or blogger contributed to the posting, they may still face liability:

“In 2003, the Ninth Circuit Court of Appeals ruled that a listserv moderator and operator of a website which allegedly published defamatory statements provided by a third party was eligible for immunity under the Communications Decency Act (CDA). Batzel v. Smith, 2003 US App.LEXIS 12736 (9th Cir. 2003). However, if the online service provider plays an active role in soliciting information from users that leads to the defamatory act, the operator may not be protected by the safe harbor provisions of the CDA. In Carafano v. Metrosplash.com, Inc., a federal court ruled on the application of the safe harbor of the Communications Decency Act (CDA). The defendant in that case operated a matchmaking website known matchmaker.com. As part of its service, the defendant collected profiles of singles based on an extensive questionnaire. The plaintiff sued Metrosplash because of a false profile of her which an unknown user had posted to the website. The court ruled that by creating the extensive questionnaire, Metrosplash played an active role in developing the information that had been posted. Furthermore, the court ruled that Metrosplash was an information content provider and thus not eligible for the CDA’s safe harbor provided to “interactive computer services.” Carafano v. Metrosplash.com, Inc., Case No. CV 01-0018 DT (CWx) C.D. Cal. 2002) (subsequently reversed by appeals court). While operators of blogs and services are generally immune from such liability, the more active the service is with its member’s, the greater the likelihood of potential liability as a publisher of defamatory materials.”

These issues can be troubling especially for start-ups which have not otherwise established a solid reputation and can easily overcome a few postings. When it becomes a problem, you should consult with your business advisors.