Have you ever Googled yourself, or your client, and been horrified to see the first page of the results is review website where you are being trashed? Sometimes, the review goes past the complaint about the plot of the book and becomes a personal attack that could seriously harm your business reputation.
You have three choices. You can sue, you can hire someone to help “manage” your online reputation, or take a middle ground and ask nicely for the offending material to be removed.
WHY NOT TO SUE
1. Figuring out who to sue –
Most review websites are protected from defamation and related claims through Section 230 of the Communications Decency Act. Click this link for prior postings on the “Communications Decency Act” for further details and examples of how the immunity works.
Many critics post anonymously. Therefore, you have to subpoena the website or ISP just to try and figure out the identity of your critic. Click this link for prior postings on “Anonymity” to see how courts address that issue. Most states follow the rule in Cahill v. Doe which held the person seeking to unmask the poster must articulate the basic elements of a defamation claim before the court will allow it.
2. Truth is a defense
Even assuming the claim is not true, if there is a lawsuit, the person who made the comment will be allowed to ask you all kinds of questions related to the substance of the comment that you will have answer under oath.
3. The cost
It’s expensive. You could spend $30,000 just to figure out the identity of the online critic. Then, you have to really start spending money to sue that person. I often have to tell clients you can pay me $100,000 and I will get you a piece of paper that says the other side has to pay you hundreds of thousands of dollars. But, if they don’t have the money, I can’t force it out of them. Will the person sitting in the dark in his boxers making up defamatory comments about you online at 12:30 at night with the handle firstname.lastname@example.org have any money to pay?
4. The Streisand Effect.
I have discussed the Streisand Effect before here and here. Basically, a lawsuit, if interesting enough, will only create more attention to the damaging post. Yes, the post is infuriating, but you might be able to get it removed through other means. If you file suit, it may be the talk of the town when the suit is filed. Then, discussed again when there is a hearing on whether the identity of the poster should be revealed. Then again when the trial starts. Then again when the judgment is rendered. Then again when the issue is up on appeal. Without the suit, it would not have garnered much attention at all.
WHEN TO SUE
1. A repeat offender or a competitor and you need to fight back.
2. The story is already in the public and you need to publicly defend yourself.
3. A victory will be seen as vindication.
4. You need to set the standard so others do not try and do the same thing.
5. The poster has a lot of money so it may be worth it.
6. In this economy, lawyers need job security too.
WHEN TO HIRE AN ONLINE REPUTATION MANAGEMENT EXPERT
I am not an online reputation management expert. I don’t take medical advice from the newspaper deliveryman, I don’t expect online marketers to know the minutiae of defamation law, and likewise I leave the online marketing tricks to them. Basically, through their expertise, an online reputation management campaign tries to create positive references and search results to push the negative comments off the first pages. The pros are:
1. It does not involve litigation.
2. In addition to pushing down the negative references, you get the benefit of the positive references you would often seek through a traditional marketing campaign.
Tim Doyle of TopSpot Internet Marketing says, “by continually updating all of the positive happenings within your company through press releases, client case studies, and customer satisfaction ratings etc., and making sure that this information is available on your website, and other websites, you have the power to take charge of your company’s reputation online. Online reputation management meshes very nicely with Search Engine Marketing because the consistent addition of fresh, relevant, and positive content about your company and its products and services is a key component in search engine optimization.”
WHY NOT TO DO ONLINE REPUTATION MANAGEMENT
1. It can be expensive.
2. It can be difficult with no guarantee of results.
3. It often takes time.
4 .Search engines don’t like to be manipulated and could punish you.
“The key to successful online reputation management is consistency,” Doyle said. “You must be consistent in adding positive content to your website and other online vehicles and you must continually monitor the web for negative comments about your company.”
WHY NOT JUST ASK
You can simply ask the website to take down the offending material. If you do, do so nicely. Many of the websites brazenly challenge you to sue and claim they will not take down any reviews. In the past, having the client (not the lawyer or marketer) make a simple request has actually worked. In one case, a client sent a simple email stating:
To whom it may concern:
I have viewed the February XX, 20XX posting on your website by XXXX. The posting is inaccurate, misleading and defamatory. I categorically deny XXXX’s allegations that I XXXX. As such, I respectfully request you remove this posting from your website. Thank you for considering my request.
It worked and the post was removed. Be careful because some websites will post your request right beside the original comment, so whatever you write . . . be nice.