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How to handle social media threats and clean up online reputations

October 2009 - Media, Entertainment & Sport. Legal Developments by Schillings.

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The battleground for protecting reputations has historically been print media. All eyes were focused on the news-stands. With the advent of the internet, the battleground has changed immeasurably.

Within the internet, there is an abundance of fora in which an individual or company can be defamed, a person’s privacy invaded, a person harassed by an unknown source or a trade mark infringed. Social networking sites such as Facebook, MySpace and Bebo, or the plethora of blogs on every subject imaginable, are just some of the recently established mediums. New ones, such as Twitter, frequently pop up.

The battleground for protecting reputations has historically been print media. All eyes were focused on the news-stands. With the advent of the internet, the battleground has changed immeasurably.

Within the internet, there is an abundance of fora in which an individual or company can be defamed, a person’s privacy invaded, a person harassed by an unknown source or a trade mark infringed. Social networking sites such as Facebook, MySpace and Bebo, or the plethora of blogs on every subject imaginable, are just some of the recently established mediums. New ones, such as Twitter, frequently pop up.

Despite the vast playing field for offenders, it is not the Wild West. The same rules still apply, albeit in a mutated (and ever mutating) form. Contrary to popular belief, or fear, there is a lot that can be done to control and protect an individual’s or a company’s reputation on the internet.

There follows some common examples of the threats clients face from the internet, and a précis of the legal and practical solutions available.

ANONYMOUS BLOGGERS

By way of example, a person is posting material on an online discussion board that contains defamatory, private or confidential information about your client, but they are using a pseudonym. What can you do?

First, the internet service provider (ISP) or the host of the discussion board will hold registration information for that particular individual. You can apply for a Norwich Pharmacal order requiring the ISP to reveal the true identity, and even contact details, of the anonymous blogger. Once the court grants the order you can then use the information to issue proceedings against those identified by the order.

You can also apply for what is known as a ‘John Doe Order’. Again, this is where you don’t know the identity of the anonymous blogger but you are concerned that the information will be picked up and published elsewhere. It is open to you to issue proceedings naming the wrongdoer as ‘John Doe’, a person unknown. The beauty of this order is that you can then serve it on third parties, such as the media, who are then prevented from publishing the information that the order is trying to contain while you press ahead with unveiling the anonymous blogger.

A recent ruling has, however, lifted the lid on anonymous bloggers. In the case of The Author of a Blog v Times Newspapers Ltd [2009] the High Court declined to restrain The Times from revealing the identity of a blogger because the information did not have the necessary quality of confidence, nor did it qualify as information in respect of which the blogger had a reasonable expectation of privacy, essentially because blogging was a public activity.

The blogger was one Richard Horton, a detective constable with Lancashire Constabulary, and the blog ‘NightJack’, which offered a behind-the-scenes insight into frontline policing. Mr Horton argued that his identity should not be revealed as it could put him at risk of disciplinary action for breaching regulations. Mr Justice Eady, presiding, held that it was not part of the court’s function to protect police officers who are acting in breach of police discipline regulations, and that the mere fact that the blogger wanted to remain anonymous did not mean that he had a ‘reasonable expectation’ of doing so or that The Times was under an enforceable obligation to him to maintain that anonymity. Mr Justice Eady ruled that Mr Horton had no ‘reasonable expectation’ to anonymity because ‘blogging is essentially a public rather than a private activity’.

A FALSE PROFILE

Your first port of call is the terms of use of the particular social networking site. Facebook’s terms of use, for example state:

‘You will not provide any false information on Facebook, or create an account for anyone other than yourself without permission.’

If you violate this requirement, then Facebook can terminate the offending profile.

In some circumstances, however, proceedings will be necessary, as they were in the case of Applause Stores Productions Ltd & anor v Raphael [2008]. Grant Raphael was a former friend of Mathew Firsht. When they fell out, Raphael set up a Facebook profile in the name of Firsht. The false profile contained information as to Firsht’s sexual orientation, his relationship status and his political and religious views. Raphael also set up a Facebook group, linked to the false profile by hyperlink, that was called ‘Has Mathew Firsht lied to you?’, and on which defamatory words were posted. The meaning of the words, which the court found ‘wholly justifiable’, was that Mr Firsht owes substantial amounts of money to business associates which he has repeatedly avoided paying by lying about when he will pay and making implausible excuses for not paying and that, as a result, Firsht and Applause Stores are not to be trusted in the financial conduct of their business and represent a serious credit risk.

Firsht discovered the false profile and group page by accident and immediately alerted Facebook, who removed the page. Through his solicitors, Firsht obtained a Norwich Pharmacal order against Facebook for disclosure of the registration data provided by the user responsible for creating the false material. The data included e-mail addresses and the IP addresses of all computers used to access Facebook by the owner of those e-mail addresses. A forensic study of this information led to Raphael.

Firsht sued Raphael, personally and on behalf of his company Applause Stores, for defamation and invasion of privacy. Raphael denied responsibility for the false page and group, claiming that they were created by one of four ‘strangers’ who had come back to his flat for a party.

The court held that Raphael’s explanation was ‘utterly implausible from start to finish’. Raphael’s proposition that a complete stranger, who had visited his flat for the first time, had used his computer without permission, and without being observed, to create a false profile about a man he knew well and had fallen out with was ‘utterly far-fetched’. The person responsible could only have been Raphael. Given the conclusion that Raphael had created the profile, it followed that he must also have been responsible for the group page.

In finding for the claimants, the court awarded Firsht ÂŁ15,000 and Applause Stores ÂŁ5,000 for defamation. In relation to the claim for misuse of private information, damages of ÂŁ2,000 were awarded to compensate Firsht for hurt feelings and the distress caused.

It is not difficult to create a false profile, but it is difficult to escape liability for doing so. Interestingly, on 13 June 2009 Facebook began handing out personalised web addresses on a first-come, first-served basis. The move allows users to create a distinct online address for their personal profile with a name of their choosing, such as facebook.com/schillings. It also lets them use their Facebook page like a personal home page. Facebook said that within 15 minutes, 500,000 users had registered a personalised web address.

Facebook restricted certain names, including those of well-known companies and brands, celebrities and politicians. This did not, however, stop users hijacking variations of those names. Names registered included /girlsaloud, /princecharles and web addresses for Waitrose, Morrisons and Rolls Royce, all of which link to an individual’s Facebook page. This occurs frequently and in some circumstances the user intends to profit from their prize. The practice is known as cybersquatting, which is the registering, trafficking in, or using a web address or domain name with bad faith with the intention of profiting from the goodwill of a trade mark belonging to someone else.

Proceedings can be issued for breach of copyright or passing off or, where the trade mark is registered, under the Trade Marks Act 1994. There are, however, alternatives to litigation. There are international bodies that deal exclusively with cybersquatting, such as the Uniform Domain Name Resolution Policy (UDRP) process developed by the Internet Corporation for Assigned Names and Numbers (ICANN). The UN’s copyright agency, the World Intellectual Property Organization, also provides an arbitration system for trade mark holders to reclaim a squatted site.

FOREIGN WEBSITEs

For example, a foreign-based website has posted an article defaming you or your client. Proceedings can still be issued in this country. A defamatory statement is not actionable until it is published and publication takes place where the defamatory material is read, not where it is created. A letter written in Paris and posted to London, where it is read by the recipient, will have been published in England. Similarly, an article on a French website that is read in the UK will have been published here and is therefore actionable under English law.

English law is perceived as being very claimant friendly and very attractive to foreign libel claimants. There is, however, a fundamental misconception about bringing defamation proceedings in the UK. It is not open to all and sundry. To bring a claim for defamation in England you must show that you have a reputation here to protect and that there has been substantial publication. If you can prove those fundamental ingredients, you may be able to bring a claim in this country.

The courts will apply a common sense approach to reputation. In Mardas v New York Times Company & anor [2008] the court found that although the claimant was resident in Greece, he was well known in this jurisdiction and had lived here for 33 years. He also had two children who lived in England, both with British nationality. Mr Justice Eady held that ‘there is no artificiality about seeking to protect his reputation within this country’.

As regards substantial publication, the case of Dow Jones & Co Inc v Jameel [2005] advanced the proposition that a libel action may be struck out as an abuse of process where the evidence is that the extent of publication within the jurisdiction is small or, in considering proportionality, where ‘the game was not worth the candle’. ‘Substantial publication’ is not defined but, as with reputation, the court will apply a common sense approach in determining whether the threshold has been met. In Jameel only five subscribers in England and Wales had accessed the words complained of and, of these, three were Mr Jameel’s lawyers and business associates.

In the very recent case of Mark Emlick v Al Nisr Publishing LLC [2009] the claimant, a Scottish businessman with a reputation in England and Wales, issued defamation proceedings against the publishers of Gulf News, considered one of the most widely read newspapers in the UAE. The words complained of were published in Gulf News and on its website. In his judgment, Moloney J considered the impact of the internet in damaging reputations and referred to the ‘pernicious operation of the internet’. Judge Moloney observed that when typing in the name of the claimant on Google, the search engine automatically directs the searcher to the website containing the defamatory article, even if this is not what the searcher is looking for. He stated that there is a certain magnetism or gravitational pull that can bring internet libels to the attention of those who are not even searching for it and it is very different to book or newspaper libels in this respect.

In light of this Moloney J concluded that there was substantial publication and the majority of the publication in England and Wales would have been through the internet. Judge Moloney also held that Gulf News should be held responsible for third-party republications of the original article. He stated that when publishing anything on the internet, it is eminently foreseeable that other websites or bloggers will take advantage of the ease with which the material can be republished. Judge Moloney was satisfied that it is proper to treat the defendant as the tortfeasor for the third-party websites.

In the recent case of Metropolitan International Schools Ltd (t/a Skillstrain and/or Train2game) v Designtechnica Corp (t/a Digital Trends) & ors [2009], it was held that Google Inc could not be regarded as the publisher of allegedly defamatory material appearing on a search result. The claimant, which provided adult distance-learning courses, complained of defamatory information appearing on the first defendant’s web bulletin boards posted by third parties. It further alleged that Google Inc had, in a search return or ‘snippet’, published material that was similarly defamatory. The snippet in question referred to the allegedly defamatory material on the defendant’s website.

Mr Justice Eady held that at common law, there needs to be present a mental element for a person to be fixed with responsibility for publishing defamatory words. Google Inc’s search is performed absent human input, instead by ‘web-crawling “robots”’. Mr Justice Eady also held that the position would be no different if Google Inc was on notice of the defamatory content. He held that an internet host is not the same as a search engine. A website host can generally remove legally objectionable material, however a search engine cannot press a button to ensure that the offending words will never reappear on a Google search snippet.

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The above is illustrative of the legal and practical tools available to combat internet threats. However, there are many instances where a corporation, or its senior executives, are well advised to avoid a confrontation. In a recent case in Chicago, a lettings agency, Horizon Group Management, sued a former tenant after she complained on Twitter about mould in her apartment. The claimant filed the lawsuit in response to what it claimed was her ‘false and defamatory’ message on the microblogging site. The lawsuit provoked a backlash against the claimant on Twitter and the internet. Horizon Group Management has become one of the most searched and discussed subjects on Twitter, with users criticising the company for its legal action and arguing it had made a major PR blunder.

Choose your battles carefully.

By Laura Tyler, associate solicitor, Schillings.

E-mail: laura.tyler@schillings.co.uk

Applause Stores Productions Ltd & anor v Raphael [2008] EWHC 1781 (QB)

Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75

Mardas v New York Times Company & anor [2008] EWHC 3135 (QB)

Mark Emlick v Al Nisr Publishing LLC (Unreported, 15 July 2009)

Metropolitan International Schools Ltd (t/a Skillstrain and/or Train2game) v Designtechnica Corp (t/a Digital Trends) & ors [2009] EWHC 1765 (QB)

The Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB)