By: Lori T. Williams, Owner/Managing Attorney of Your Legal Resource PLLC
Last week's blog dealt with the technological side of online reputation monitoring, management, and repair. Why you should monitor what others are saying about you online, what to monitor, how to manage your online presence for maximum effectiveness, and how to repair the negative comments online and "hate sites" that have become prevalent today. (For more information, read: Online reputation management, what you don't know can hurt you).
This week, we look at the legal side of online reputation management and repair. Attorney Michael Melfi was the other presenter at our October Lunch and Learn. He identified what is and is not digital defamation and what some of the rights and remedies are for online reputation attacks. To see Michael's Power Point presentation, click here.
What constitutes Digital Defamation?
The legal standard for digital defamation includes each of the following elements:
- A libelous expression which is published to a third party, at a minimum;
- Which results in some harm to the plaintiff (based upon evidence provided);
- Which specifies an individual or entity (usually the Plaintiff) in such a manner as to clearly indicate to the average reader who the individual or entity is; and
- Is based on a provable assertion.
- Defamation per se occurs when published libelous expressions are actionable at face value. (ie. accusations of a crime, sexual misconduct, loathsome disease, unfit to run their business, etc.)
What DOES NOT constitute Defamation?
- Opinions: Someone writes and publishes something negative about you that is improvable.
- Truth: Someone writes and publishes something about you that is true. (ie. age, race, beliefs, etc.) Even if portrayed in a negative light, truth is not defamation.
- Statements made without malice: If someone writes and publishes something negative about you, without malice, and you are a public figure or celebrity, there is no is no valid claim of defamation or libel. Libel must be intentional and without justification or it is not defamatory.
Black's Law Dictionary Defines Libel as: "A method of defamation expressed by print, writing, pictures, or signs. In its most general sense, any publication that is injurious to the reputation of another. A false and unprivileged publication in writing of dafamatory material."
and Defamation as: "Holding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the communtiy; may be criminal as well as civil. Includes both libel and slander. Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the Plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him. Statement which exposes person to contempt, hatred, ridicule, or obloquy."
What about Identity Theft/Stolen Identities?
According to the FTC, identity theft is a crime. Click here for practical tips about what to do if you suspect someone stole your identity or opened up a credit card in your name.
What about Personality Theft/Online Impersonation?
- An impersonator is someone who imitates or copies the behavior or actions of another.
This could include people hiding from creditors or other individuals, or those who want to be 'anonymous' for personal reasons.
- Posers are people who use another person's photos and information through social media networking sites. They create believable stories involving friends of the real person they are imitating.
There is no punishable crime for these actions, and they may be classified as a 'hoax' by the court, if a civil legal action is pursued. Another legal challenge is not being able to prove damages, so there is nothing the Court can do to provide compensation or remedies to the people who fell victim to the impersonators or posers.
What about Cyber squatting?
- This behavior involves registering, trafficking in, or using a domain name with the bad faith intent to profit from the goodwill of a trademark belonging to someone else.
- The cyber squatter may offer to sell the domain to the person or company who owns a trademark contained within the name, at an inflated price.
- Some cyber squatters put up derogatory remarks about the person or company the domain is meant to represent in an attempt to encourage the subject to buy the domain from them.
- There are remedies are available to victims of cyber squatters:
i. Domain name disputes involving alleged bad faith registration are generally resolved through the Uniform Domain Name Resolution Policy (UDRP) process. This process was developed by the Internet Corporation for Assigned Names and Numbers (ICANN). Successful complainants can have the names deleted or transferred to their ownership.
ii. There are also remedies available under the Anticybersquatting Consumer Protection Act (ACPA), which provides that a cyber squatter can be held liable for actual damages or statutory damages in the amount of a maximum of $100,000 for each name found to be in violation. Application of this act, with actual fines assessed, is few to date.
While consumers can exercise both these remedies without an attorney, the process can be complicated. Seeking the advice of an experienced attorney is advisable because a complaint must be filed in the appropriate court, citing the appropriate statutes and factual basis, along with the relief sought.
For additional information shared by Michael Melfi about Right of Publicity, Social Media Policies/Lawsuits, and the NLRB's interpretation of employment policies, please refer to this PowerPoint Presentation. Also, see this blog: Social Media Communications and the Law.
Michael Melfi is a Metro Detroit IP attorney who handles Trademarks, Copyrights, Patents, Intellectual Property Infringement and Enforcement Litigation, Social Media Policies, as well as transactional business matters for his clients. He often represents athletes, entertainers, CEO's and businesses with digital assets and valuable proprietary rights to protect. Melfi speaks locally and nationally about legal issues in the Web 2.0 world. For more information, visit his website.
Lori T. Williams is a 23 year attorney based in Birmingham, MI. She owns a legal referral and legal consulting business called Your Legal Resource, PLLC. She assists individuals and small businesses in need of legal advice or representation by connecting them with the right legal specialist for their situation. She also provides consulting services for attorneys and other professional service providers on how to generate more business through effective branding, marketing, networking, and by creating strategic partnerships. For more information, visit www.bestlegalresource.com.