Reputation management law

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

“... 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).

Carrie Bradshaw in
Sex and the City

Online Reputation Management Plan

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

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/

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

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

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

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

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

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

Is Reputation Management Law the “Next Big Thing?”

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.)

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

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.)

@omarharedeye
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omar.haredeye@gmail.com
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Reputation management law

by Omar Ha-Redeye on Apr 05, 2011

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Reputation management law — Webinar Transcript