Online Reputation Protection and Repair

by Gray Reed & McGraw
Contact

Arriving at his warehouse last week Knott Faire, owner of Faire Carpet Cleaning, discovered yet another complaining critique posted on WELP: “Lots of hype, a mediocre cleaning and a hassle at the end. Don’t get tied up with Knott!” In over 75 previous reviews only 3 were slightly negative. Since the “hype” complaint, another dozen scathing complaints were logged. Believing that the negative reviews are from a competitor, not his customers, Knott called his trusty lawyer Icahn Ficksit for help. Icahn issued WELP a subpoena demanding production of identifying information and ISP (Internet Service Provider) addresses for the dozen offenders. Will Ficksit win? 

In Virginia, yes; in Texas, no. The Virginia Court of Appeals held that a Yelp reviewer is generally entitled to First Amendment protection if the reviewer is critiquing a business they patronized; however, [i]f the reviewer was never a customer of the business, then the review is not an opinion; but is based on a false statement. Virginia only requires that Icahn Ficksit and Knott Faire show, among other things, that the WELP reviews “are or may be tortious or illegal,” or that Faire Carpet Cleaning has “a legitimate, good faith basis” to believe that they were the victim of actionable conduct.

Texas Law

On the other hand Texas courts require that a defamation plaintiff submit sufficient evidence to establish a prima facie case for each essential element of the claim in question, consistent with rules identified in the two related cases of Cahill and Dendrite. In other words, in Texas, to survive WELP’s challenge to Ficksit’s subpoena, Knott Faire would have to show some evidence creating a genuine issue of material fact for all elements of his defamation claim. Just saying that the postings might be tortious or illegal or that you are a victim is not enough. In other words, Texas businesses seeking personal details about website users – whether in an effort to silence online critics or otherwise – must lay out actual facts before such information is allowed to be obtained.

Anonymous Free Speech v. Right to Protect One’s Reputation

The right of free speech, including anonymous speech, is protected under the First Amendment, but this general protection relies upon an underlying fact assumption – that the reviewer was a customer of that company and the posted review was based on personal experience. If this assumption is false and the reviewer was never a customer, then the review is not an opinion. Instead, it is based on a false statement for which there is neither constitutional value nor constitutional protection. But, how much actual proof is required before the balance tips in favor of piercing the constitutional shield and disclosing the identity of the anonymous blogger? Courts must balance anonymous communication with the right to hold accountable those who freely defame individuals. Those defamers must face civil responsibility for their acts.

Tilting the Scales in Your Favor

Our advice on this subject of almost two years ago in Keeping a Good Name: Protecting Yourself From Internet Defamation is the same today. Consider carefully your options and the time and expense that are likely to be related to each. While, you really can sue someone for just about anything, there are other options to consider before pulling the pin on the litigation hand grenade.

·         Be Proactive – consider releasing your side of negative information first. If it is reasonable, it will be believed. “Nip it in the bud.”

·         Be Upfront – consider contacting and offering to meet with the online poster if the negative comments have already been posted. Be conciliatory.

·         Apologize if Necessary – consider ‘fessing up to your mistakes. A quick apology is less painful and costly than years of litigation, and is likely to put you in a better light as one who owns up rather than appearing to be clueless and defiant.

·         Negotiate to Get the Post Down - consider the cost to get it down. Words are forgotten. Even newsprint fades. The permanence of the web creates a major branding challenge.

·         Own Your SEO (Search Engine Optimization) – consider creating your own content and drive the bad stuff down in search engine rankings. Only your worst enemy will look for dirt on you past the first Google search page. See Reputation Repair below.

And, know that there are those who believe that any company that sues over online reviews someone makes is clearly a company not worth doing business with, since they might, potentially, sue you over any bad review you write online about them.

Reputation Repair

Managing your internet reputation is not a new idea. In fact Gray Reed regularly works with some of our clients on crisis communications and dealing with damaging or misinformation on the internet. There are also internet service providers and websites like Reputation ChangerReputation Management ConsultantsIntegrity Defenders,and Online Reputation Management that promote their ability to clear negative search results arising from an internet search engine.

By the way, consumer-review websites—whether Yelp, Angie’s List, Google + Local, Yahoo Local Listings, or Amazon.com—are shielded from liability for defamation claims stemming from user comments under the Communications Decency Act of 1996.

Last month Tilting and Alex Fuller wrote about The Case of the Defamed Doctor – SLAPP’ing Down Defamation Cases in Texas and the Texas Anti-SLAPPing statutes (Strategic Lawsuit Against Public Participation) aiming to prevent businesses or other powerful groups from filing baseless lawsuits against their critics. Typically, these statutes promote speedy resolutions and charge all legal fees to the losing party. See also SLAPP Happy – Can a Business Sue a Customer who Gave a Bad Online Review?

See prior Tilting articles –  Defamation Primer (2009) and When is a Tweet Not So Sweet? (2009)

Also check out – Defamation Law: The Basics

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Gray Reed & McGraw | Attorney Advertising

Written by:

Gray Reed & McGraw
Contact
more
less

Gray Reed & McGraw on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.