“Internet Gripe Sites and Rants: Can Anything Be Done?”
InsideCounsel 02/01/16 Deanna Conn
Responding to defamatory online content, including negative and inaccurate online reviews, tweets, Facebook or blog posts, can be very challenging. Nevertheless, there are some tips and tools that can prove helpful in removing defamatory content.
Make copies of all defamatory content immediately
First, as a practical matter, investigate the posting thoroughly. Make printouts of everything, including the content, the URL page, and statistics on views, where available. These copies may be useful as exhibits to attach to cease and desist letters or to prove your case later if you end up filing a lawsuit, particularly if the content is altered, which can happen very quickly.
Evaluate the harm carefully before taking action
Second, tread carefully. Before taking any action, you should carefully weigh the harm caused by the defamatory post. Given the volume of content that is available on the internet, a defamatory post, even though legally actionable, may not really have much impact. If you cannot identify actual damages in the form of lost sales or lost reputation that will likely impact sales or investors, it may not make sense to take any action. Ironically, many times, taking action can lead to a significant backlash, which can become a public relations nightmare. For example, if a cease and desist letter is sent, the poster will often post that letter online and claim the company is trampling on the poster's first amendment rights. This can lead to further comments and posts, and actually increase the attention and views given to the defamatory post.
One statistic that may be helpful to consider in evaluating harm is that 92 percent of Google online search traffic is limited to the first search page as reported in a June 2013 study:https://searchenginewatch.com/sew/study/2276184/no-1-position-in-google-gets-33-of-search-traffic-study. Because of this, a better strategy may be simply to push the defamatory posting down in the search engine rankings by publishing new and accurate news, blog posts or other articles about the company.
Contact content hosts
If you determine that the harm is substantial so that action must be taken to take down the content, before resorting to the Courts for relief, you should review the applicable content hosts' policies and online complaint forms. Facebook, LinkedIn, Twitter, YouTube and others have instituted administrative procedures that may result in clearly actionable postings being deleted, although many require that a legal complaint be filed before they will take action. Alternatively, if the registration information linked to a domain name is inaccurate (for example, it uses false information, such as fictional characters), the company may be able to file a "Whois Inaccuracy Complaint" using a form on ICANN's website located athttps://forms.icann.org/en/resources/compliance/complaints/whois/inaccuracy-form. This may ultimately lead to the domain name being cancelled thereby also removing the defamatory content if the inaccurate registration information is not corrected.
Other pre-litigation tools
Another tool short of filing a lawsuit may be available if defamatory content also incorporates your company's copyrighted content. You can issue a take down notice to the content host pursuant to the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. That process is described in an earlier article in the series. See http://www.quarles.com/hillary-j-wucherer/publications/avoiding-common-trademark-and-copyright-issues-in-social-media.
When it comes to negative online reviews, it often makes sense to simply proactively respond, either privately, using the content host's private messaging system, or even publicly by posting a comment in response. Many times it helps to acknowledge the poster's frustration, while correcting the inaccurate information.
Potentially actionable legal claims
If you find that you must seek relief from the courts, there are numerous legal claims that may apply, in addition to defamation, which may increase your litigation leverage. Those may include the following:
- Copyright (if the defamatory poster has incorporated your company's text or photographs)
- Trademark and unfair competition (if the defamatory poster is also using the company's trademarks in a confusing or misleading way)
- The Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. §1125(d) (if the defamatory poster has registered a domain name that uses your trademark)
- Misappropriation of trade secrets (if the defamatory poster has posted proprietary or trade secret information)
- Invasion of privacy (if an employee's name is used)
- Breach of contract (if a disgruntled employee or other party has breached a nondisclosure agreement)
Removing URLs from search engine results
Once a domain name has been cancelled or removed, or a court order has been obtained ordering that legally actionable content be removed, another key step is to submit the outdated or cancelled URL to the major search engines for expedited removal from search results. See https://support.google.com/legal/answer/3110420?hl=en. This may be beneficial even if the host refuses to take down the content because if the content no longer appears in search engine results, viewership and harm will be substantially reduced.
Proactive tips to consider include registering potential "gripe" domain name addresses, such as .sucks registrations. Southwest Airlines has registered www.southwestsucks.com and then provides contact information for lodging complaints at that address, which may redirect some complaints in a more constructive way. You may also benefit from hiring online reputation management firms.
Some companies have sought to stifle complaints by including preemptive non-disparagement clauses in their terms and conditions. That practice is now illegal in California. See http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1670.8.&lawCode=CIV. In September 2015, the FTC sued a company, Roca Labs,https://www.ftc.gov/news-events/press-releases/2015/09/ftc-sues-marketers-who-used-gag-clauses-monetary-threats-lawsuits, for including a preemptive non-disparagement clause in its contract with customers. Many states have also passed anti-SLAPP (Strategic Litigation Against Public Participation) laws. As noted above, you must tread cautiously to avoid a counter lawsuit and even more unwanted publicity.