From a legal business development standpoint, the advice is not good. For clients, the advice can be invaluable. Rather than wait to be attacked online and then sue, be proactive. If the attack comes, consider fighting bank online rather than through the courts, which is usually your last resort.
1. Monitor. You can’t protect your brand if you don’t know what is going on or being said about you. This is a must for every company or person with a full range of services and options to match every budget from the free Google Alerts to full service firms that monitor, collect and analyze your references. This not only helps you keep an eye on what is being said about you, but can help monitor for trademark infringement, defamatory comments or counterfiets.
2. Engage with officially-sanctioned voices. If you don’t, then the first thing someone will see when searching for you online will be the imposter or the negative review. The more popular networking sites have officially sanctioned profiles. Even if you don’t have much to say, claim those before someone else tries to.
3. Go to the hosting site first. This sounds like advice from my mother than from your lawyer, but you often do catch more flies with honey than vinegar. Many review and social sites place legally correct disclaimers on their sites that they are not liable for user generated content. Yet, their terms of service that no one reads also usually state they do not allow for imposters, libel, harassment or a whole list of other wrongs. Often, you can simply send the website operator the content you have a problem with and explain how it violates their own standards. While they may not have to take it down, they often will.
4. Embrace the parody. Many times, your nemesis is engaging in parody. There has been everything from a fake BP public relations twitter account to a fake Big XII commissioner account on Twitter who despite the commissioner’s ouster is still going strong musing on college football. Assuming you have taken care of #2 or #3 if the imposter is clearly not engaging in parody, there is not much you can do. Parody is usually protected by the First Amendment and fair use when it comes to copyright and trademarks. Done right and when appropriate, acknowledging the parody, companies and individuals can gain a lot of goodwill by embracing the parody.
5. Mitigate the Pain. You may not be able to remove the content, but sometimes, you can push it down to obscurity. How many pages deep into the search results do you go when looking up something? If you can move the bad content down, then very few people will see it. Online reputation management experts claim to know the secret sauce to have the negativity moved down which usually takes some time to create more timely positive content. It is certainly not a permanent or quick fix. It can, however, be quicker and less expensive than litigation.
6. Sue when you gotta sue. Sometimes you just have to sue. It rarely makes economic sense and it is usually not done as a bottom line business decision to recover more from the bad guy then you will spend on attorneys’ fees. Sometimes, however, your reputation and good name are that important. Then, and usually only then, it makes sense to go to the courts with certain caveats. First, filing the lawsuit will often bring more attention to the problematic online content. Second, truth is a defense which means you will be asked questions under oath that usually are not allowed in the run of the mill car wreck or contract dispute. Sue only if you are ready for that.
Next time . . .
Unmasking the anonymous annoyance.