Presentation at LegalIT 5.0 in Montreal, Quebec on April 4, 2011

1. Reputation Management Law: The Next Big Thing Omar Ha-Redeye AAS, BHA(Hons.), PGCert, J.D. CNMT, RT(N)(ARRT)

3. “... Either way, it’s clear that online reputation management is the next big thing that everyone will have to deal with.” – Tony Wilson, author of Manage Your Online Reputation (2010).

9. Online Reputation Management Plan

13. Pre-Litigation Options Warning letter Notice (and takedown) notice and notice in Canada Just ask nicely

14. Cease and Desist Letters Think carefully about whether to send it 2. Consider the response Stick to the facts Don’t threaten to sue 5. Don’t set a compliance deadline or written response Adapted from D.C. Toedt III, Cease-and-desist letters: Five ways to keep your client and yourself from looking foolish, June 29, 2010 http://www.ontechnologylaw.com/2010/06/cease-and-desist-letters-four-ways-to-keep-your-client-and-yourself-from-looking-foolish/

17. Vigna v. Levant, 2010 ONSC 6308 Judgment released November 18, 2010 Plaintiff was a lawyer with Canadian Human Rights Commission Sued Ezra Levant, lawyer and political activist, for blog posts on his site Judge awarded $25,000 in damages, and ordered defamatory posts removed costs decision on January 26, 2011 awarded over $32,500 plus taxes Rule 76.13(2) – costs denied for monetary only under $100k

18. Day v. Ross, [unreported] November 23, 2010

19. Anonymity is a Myth R. v. Cuttell, 2009 ONCJ 471 3rd Party custody of confidential information does not automatically extinguish any reasonable expectation of privacy rights reserved by the third-party vis-a-vis Cohen v. Google, Inc., Index No. 100012/09 (N.Y. Cty. Aug. 17, 2009) Skanks in NYC (Blogspot) pre-action disclosure Revealed an acquaintance behind postings Swartz v. Does, 6th circuit, Tennessee P subpoena Google P entitled to discover identity of anonymous blogger

20. Different Approaches to Anonymity York University v. Bell Canada Enterprises, 2009 CanLII 46447 (ON S.C.) Use of pre-action discovery mechanism called a Norwich order Privacy interest v. interests of justice Limited for specific purposes, not absolute Privacy interests overridden by s. 7(3)(c) of PIPEDA Warmanv. Wilkins-Fournier, 2009 CanLII 14054 (ON S.C.) disclosure provisions of R 76.03 of the Rules of Civil Procedure Disclosure balanced with freedom of expression interests Matthew Nied, Unmasking Anonymous Defendants in Internet Defamation Cases: Recent Developments and Unresolved Issues, Canadian Privacy Law Review, Vol. 8, No. 3, February 2011

21. Ratings and Ranking Sites RateMyProfessors.com RateMyTeachers.com RateMDs.com Foda et al v. RateMDs, Inc., California Northern District Court

22. The Ratingz Network CampRatingz.com ChildCareRatingz.com ClubRatingz.com DrugRatingz.com LawyerRatingz.com RadioRatingz.com VetRatingz.com AccountantRatingz.com CollegeDormRatingz.com MechanicRatingz.com RestaurantRatingz.com SalonRatingz.com SkiRatingz.com TVratingz.com

27. Is Reputation Management Law the “Next Big Thing?”

29. Credibility Gives Higher Damages Courts look to impact on readers, credibility of the source Greater likelihood of suffering reputational harm Should they look at SEO, Google Rankings, web traffic? Dinyer-Fraser v. Laurentian Bank of Canada, 2005 BCSC 225, 40 B.C.L.R. (4th) 39 Advocate Co. Ltd. Husbands (1969), 5 Barb. L.R. 113 at 124 (C.A.)

30. Reconsidering Damages in Online Defamation Barrick Gold Corp. v. Lopehandia (2004),71 O.R. (3d) 416 At Trial: D came across as a rant, not taken seriously CA: Internet is "instantaneous," "borderless," and "far-reaching“, has "tremendous power to harm reputation“ Increased compensatory damages from $15,000 to $75,000 Anonymity increased risk of it being believed Matthew Nied,Damage Awards in Internet Defamation Cases: Reassessing Assumptions About the Credibility of Online Speech. Alberta Law Review, October, 2010. http://www.albertalawreview.com/index.php/alr/supplement/view/Damage%20Awards%20in%20Internet%20Defamation%20Cases

31. Reputation Damage is Real Social science evidence is compelling Social media and online reputation has an impact in the offline world Use of marketing studies, consumer surveys Robert J. Currie. The Bounds of the Permissible: Using "Cultural Evidence" in Civil Jury Cases. Canadian Journal of Law and Society 20.1 (2005) 75-86 Monahan, John and Walker, Laurens “Social Authority: Obtaining, Evaluating and Establishing Social Science in Law” (1986) 134(3) University of Pennsylvania Law Review 477 - 518. R. v. Butler, 1992 CanLII 124 (S.C.C.) Irwin Toy Ltd. v. A.G. Que., 1989 CanLII 87 (S.C.C.)

32. @omarharedeye ca.linkedin.com/in/torontolawyer http://www.facebook.com/TO.Lawyer omar.haredeye@gmail.com http://omarha-redeye.com