Using Digital Tools To Assess and Remedy Online Reputational Damage

Filing a lawsuit for defamation is not a decision to be made lightly. Rather, it is a remedy of last resort. However, when the reputational harm is substantial and a poster refuses to remove defamatory content or publish a retraction, a lawsuit may be only way to get the defamatory content taken down. In general, to state a claim for defamation, a plaintiff must show that: 1) the defendant made a false statement of fact about the plaintiff; 2) in an unprivileged publication to third parties; 3) negligently or with actual malice; and 4) caused actual or presumed damages. See, R. Smolla, Law of Defamation, 2d Ed. '1:34 (2014). Defamation by an Internet publication is considered libel. Most jurisdictions recognize a distinction between libel per se and per quod. Libel per se generally exists when “defamatory meaning is apparent on the face of the communication ' i.e., where the damaging nature of the communication can be established without the introduction of extrinsic.” Id. at '7:20. If the alleged defamation is libel per se , damages are presumed as the natural consequence of the false statement. Thus, the plaintiff is not required to prove damages. In libel per quod, by contrast, the plaintiff must prove that he or she suffered damage as a result of the libelous statement.

Whether or not proof of damages is required, defamation plaintiffs seeking to recover more than nominal or de minimus damages are well-advised to provide the fact finder with evidence of the reputational harm suffered as a result of the defamatory statements. Traditionally, such evidence consisted of testimony from friends or family or other fact witnesses as to the plaintiff's prior reputation and the injury suffered as a result of the publication. If the plaintiff can show that he or she lost business opportunities or customers or that the business was devalued as a result of the defamation, testimony relating to those losses can also be introduced.

In the Internet age, quantifying reputational damage from defamatory online postings is challenging because of the viral spread of the posting. Fortunately, technology now exists to quantify the number of people who clicked on or otherwise interacted with defamatory content, and also to map its journey from a single publication to re-postings, cross-postings, social media and YouTube videos. In the context of litigation, the results of such an analysis offer plaintiffs a concrete means of demonstrating that negative content spread throughout the Web, as well as a roadmap of how the process unfolded. An expert witness can trace these digital footprints to demonstrate that an article in an obscure publication not only spread throughout the Internet, but heavily infiltrated search engine results. Demonstrative exhibits can be used to illustrate graphically the ripple effect of postings and re-postings. Expert testimony can also quantify what it will cost the subject to take steps to repair online reputational damage.

The ability to track the spread of digital content may be even more useful to targets that elect not to sue. In litigation, it may be possible to obtain through discovery an Internet site's analytics which show exactly how many people came to the site and read the negative content. Short of litigation, such information is difficult, if not impossible, to obtain. Digital tools, however, can provide similar information, thus enabling any target of online defamation to assess the spread of the negative content, the damage it has caused, and help formulate a damage control and repair strategy.

How Reputation Is Impacted Online

When seeking information about virtually any topic, it is increasingly common to start with search engines. Currently over 3.5 billion searches are made each day on Google alone (see, Google Search Statistics, Internet Live Stats), making it one of the most important channels for finding information related to individuals, businesses, products and services. Simply put, search engines are one of the first places people look when trying to learn more about someone. Sixty-five percent (65%) of Internet users see online searches as the most trusted source of information about people and companies (see, 2014 Edelman Trust Barometer).

Adding to the digital ecosystem are social media platforms, which have created a chaotic and fast-moving digital landscape in which information spreads instantaneously. This shift has created ethical challenges for the media as accuracy and transparency have to be balanced against the immediacy of information. As one commentator observed:

Making mistakes is, and always has been, unavoidable. But losing sight of the importance of verifying and checking facts and doing good journalism ' whether in a news report or an opinion column ' is as much, if not more so, a culprit of erroneous information getting posted or broadcast or printed as is the speed with which we can now get the information.

“Journalistic Ethics At Internet Speed,” BBC.com (May 2014).

All of the above factors make it increasingly difficult for search engines to fairly index content and provide a reasonable algorithm for evaluating what content is good quality and can be trusted and thus should rise to the top of the results page. Google uses algorithms to determine which content should be positioned higher in its search rankings. Google's algorithms are confidential and change on a daily basis, but certain information can be gleaned about the way in which it is indexed through multiple research studies and testing The following areas have been identified as critical to driving search engine results:

• Authority of content and the website ' the extent to which they are treated as “trusted” sources;
• Social sharing of the posts; and
• Links coming in and out of the site and/or content.

In addition, studies have shown that people are far more likely to click on the top, page one search engine results than those further down on page one. According to a 2014 study by Moz, about 67.6% of users click on the first five results on page one of Google searches, and about 3.73% of users click on the bottom five results. Readers are even less likely to view or check on content on page two, which accounts for roughly 3.99% of clicks. Third page results account for only 1.60% of clicks. See , “Google Organic Click-Through Rates in 2014,” Moz.com, http://bit.ly/1MsjhBM.

Quantifying Online Reputational Damage

The tools and methodologies outlined above can help subjects of negative online publications assess their injuries, whether or not they take the step of filing a defamation lawsuit. In the litigation context, although the plaintiff and other fact witnesses can testify as to embarrassment suffered after defamatory statements were published about them, it is very difficult to quantify such damage. Even plaintiffs whose business is impugned often cannot identify specific business opportunities they lost as a result of the defamation, or trace a diminution in the business' value to the defamatory publication. If a prospective customer or client Googles a business or individual's name and decides not to do business with the subject based on negative search engine results stemming from the defamatory content, the subject is unlikely to know about that decision. The future client simply won't contact the subject.

Digital analytics, however, can provide concrete evidence of reputational damage, through expert testimony quantifying how many times a negative posting was clicked on, viewed, or shared. This data can then be compared to what would be expected for a similarly situated individual. The analysis can include the content of the originator's multiple postings, and show whether the negative content was picked up and re-published by other news outlets. If this spread has occurred, the publication's “authority” ' the extent to which it is viewed as a trusted source by Internet search engines ' can be analyzed as well as the rankings of the negative material in the search engine results. In most cases, it can be shown that the negative postings not only spread, but gained authority as they spread, compounding the reputational damage.

Repairing Online Reputational Damage

Where defamatory or otherwise negative content is posted online, there are also specific steps that a victim can take to help repair any reputational damage. One such approach is to create and disseminate positive content about the target to push the defamatory statements down in search engine results. Another means of changing the perceptions of those who engaged with negative Internet content is through the use of paid advertising. In the litigation context, estimates of these costs can be used to quantify damages. Apart from its evidentiary value in litigation, such estimates can help any target of negative Internet attacks gauge the extent to which he or she wishes to be proactive in repairing reputational damage. It should be emphasized, though, that full restoration of a target's reputation is impossible to achieve. No matter how extensive the steps taken to rebuild reputation, they will never reach all of the people who read the original content, all of those who came across the material on other websites, or all of those who found it through a search engine request.

Conclusion

The Internet makes it easier than ever to disseminate information, and barriers to entry into this vast “marketplace of ideas” are few. At the same time, procedures commonly used to ensure that the accuracy of statements published in traditional media outlets are frequently eschewed by Internet bloggers and publications. The result is that both individuals and companies are increasingly suffering reputational damage from false or misleading digital publications ' including journals, blogs, social media, video channels and Twitter. Until recently, both the extent of such harm and the cost to repair the target's reputation have been difficult to quantify. Digital tools, however, can now help quantify the extent to which negative content has gone viral, as well as the cost to begin the process of repairing the resulting reputational damage.

'

Lucinda Bach is a partner in DLA Piper's Litigation practice in Washington, DC. She has a broad-based practice that encompasses all manner of commercial disputes, with an emphasis on employment-related matters, including breach of noncompetition agreements, trade secret theft, Sarbanes-Oxley whistleblower litigation, and employment discrimination. Mary Gately is the co-managing partner of DLA Piper's Washington, DC, office and co-head of the office's Litigation group. She focuses her practice on reputation management, class actions, cross border litigation and other complex litigation in the fields of the First Amendment, product liability, and commercial litigation. Craig Kronenberger is Global Managing Director at Edelman. He specializes in communications marketing strategy, reputation management, global communication and planning, crisis, social media, search engine marketing and paid media.

The speed with which negative Internet postings spread can cause immediate reputational harm. To remedy this harm, the nature and extent of the damage must be quantified, which is no easy task. This is true whether a defamation lawsuit is pursued or whether a public relations strategy is used. However, new digital tools can now be used to assess and quantify damage caused by these kinds of negative Internet postings.

Easy and widespread access to digital media not only allows users to publish defamatory statements far and wide with the click of a mouse or the tap of a cell phone screen, those same false statements can also can be instantaneously re-posted, cross-posted, picked up by video, and “liked” or shared on social media channels. They then begin to populate search engine results for searches of the target's name and spread still further. Unlike print media, false statements on the Internet are not limited by either geography or time. To the contrary, they can cause severe, lasting and global reputational harm. Indeed, the European Union Court of Justice has ruled that its citizens can demand that search engines, like Google, delete links to embarrassing personal information ' even if true. (The “right to be forgotten” is in the EC's Proposed Data Protection Directive Update (2012).) As explained further below, although Internet defamation presents unique challenges for its victims, the digital platform also presents unique opportunities to assess and quantify reputational damage stemming from the negative publication and to repair that damage.

Proof of Reputational Damage in Litigation

Filing a lawsuit for defamation is not a decision to be made lightly. Rather, it is a remedy of last resort. However, when the reputational harm is substantial and a poster refuses to remove defamatory content or publish a retraction, a lawsuit may be only way to get the defamatory content taken down. In general, to state a claim for defamation, a plaintiff must show that: 1) the defendant made a false statement of fact about the plaintiff; 2) in an unprivileged publication to third parties; 3) negligently or with actual malice; and 4) caused actual or presumed damages. See, R. Smolla, Law of Defamation, 2d Ed. '1:34 (2014). Defamation by an Internet publication is considered libel. Most jurisdictions recognize a distinction between libel per se and per quod. Libel per se generally exists when “defamatory meaning is apparent on the face of the communication ' i.e., where the damaging nature of the communication can be established without the introduction of extrinsic.” Id. at '7:20. If the alleged defamation is libel per se , damages are presumed as the natural consequence of the false statement. Thus, the plaintiff is not required to prove damages. In libel per quod, by contrast, the plaintiff must prove that he or she suffered damage as a result of the libelous statement.

Whether or not proof of damages is required, defamation plaintiffs seeking to recover more than nominal or de minimus damages are well-advised to provide the fact finder with evidence of the reputational harm suffered as a result of the defamatory statements. Traditionally, such evidence consisted of testimony from friends or family or other fact witnesses as to the plaintiff's prior reputation and the injury suffered as a result of the publication. If the plaintiff can show that he or she lost business opportunities or customers or that the business was devalued as a result of the defamation, testimony relating to those losses can also be introduced.

In the Internet age, quantifying reputational damage from defamatory online postings is challenging because of the viral spread of the posting. Fortunately, technology now exists to quantify the number of people who clicked on or otherwise interacted with defamatory content, and also to map its journey from a single publication to re-postings, cross-postings, social media and YouTube videos. In the context of litigation, the results of such an analysis offer plaintiffs a concrete means of demonstrating that negative content spread throughout the Web, as well as a roadmap of how the process unfolded. An expert witness can trace these digital footprints to demonstrate that an article in an obscure publication not only spread throughout the Internet, but heavily infiltrated search engine results. Demonstrative exhibits can be used to illustrate graphically the ripple effect of postings and re-postings. Expert testimony can also quantify what it will cost the subject to take steps to repair online reputational damage.

The ability to track the spread of digital content may be even more useful to targets that elect not to sue. In litigation, it may be possible to obtain through discovery an Internet site's analytics which show exactly how many people came to the site and read the negative content. Short of litigation, such information is difficult, if not impossible, to obtain. Digital tools, however, can provide similar information, thus enabling any target of online defamation to assess the spread of the negative content, the damage it has caused, and help formulate a damage control and repair strategy.

How Reputation Is Impacted Online

When seeking information about virtually any topic, it is increasingly common to start with search engines. Currently over 3.5 billion searches are made each day on Google alone (see, Google Search Statistics, Internet Live Stats), making it one of the most important channels for finding information related to individuals, businesses, products and services. Simply put, search engines are one of the first places people look when trying to learn more about someone. Sixty-five percent (65%) of Internet users see online searches as the most trusted source of information about people and companies (see, 2014 Edelman Trust Barometer).

Adding to the digital ecosystem are social media platforms, which have created a chaotic and fast-moving digital landscape in which information spreads instantaneously. This shift has created ethical challenges for the media as accuracy and transparency have to be balanced against the immediacy of information. As one commentator observed:

Making mistakes is, and always has been, unavoidable. But losing sight of the importance of verifying and checking facts and doing good journalism ' whether in a news report or an opinion column ' is as much, if not more so, a culprit of erroneous information getting posted or broadcast or printed as is the speed with which we can now get the information.

“Journalistic Ethics At Internet Speed,” BBC.com (May 2014).

All of the above factors make it increasingly difficult for search engines to fairly index content and provide a reasonable algorithm for evaluating what content is good quality and can be trusted and thus should rise to the top of the results page. Google uses algorithms to determine which content should be positioned higher in its search rankings. Google's algorithms are confidential and change on a daily basis, but certain information can be gleaned about the way in which it is indexed through multiple research studies and testing The following areas have been identified as critical to driving search engine results:

• Authority of content and the website ' the extent to which they are treated as “trusted” sources;
• Social sharing of the posts; and
• Links coming in and out of the site and/or content.

In addition, studies have shown that people are far more likely to click on the top, page one search engine results than those further down on page one. According to a 2014 study by Moz, about 67.6% of users click on the first five results on page one of Google searches, and about 3.73% of users click on the bottom five results. Readers are even less likely to view or check on content on page two, which accounts for roughly 3.99% of clicks. Third page results account for only 1.60% of clicks. See , “Google Organic Click-Through Rates in 2014,” Moz.com, http://bit.ly/1MsjhBM.

Quantifying Online Reputational Damage

The tools and methodologies outlined above can help subjects of negative online publications assess their injuries, whether or not they take the step of filing a defamation lawsuit. In the litigation context, although the plaintiff and other fact witnesses can testify as to embarrassment suffered after defamatory statements were published about them, it is very difficult to quantify such damage. Even plaintiffs whose business is impugned often cannot identify specific business opportunities they lost as a result of the defamation, or trace a diminution in the business' value to the defamatory publication. If a prospective customer or client Googles a business or individual's name and decides not to do business with the subject based on negative search engine results stemming from the defamatory content, the subject is unlikely to know about that decision. The future client simply won't contact the subject.

Digital analytics, however, can provide concrete evidence of reputational damage, through expert testimony quantifying how many times a negative posting was clicked on, viewed, or shared. This data can then be compared to what would be expected for a similarly situated individual. The analysis can include the content of the originator's multiple postings, and show whether the negative content was picked up and re-published by other news outlets. If this spread has occurred, the publication's “authority” ' the extent to which it is viewed as a trusted source by Internet search engines ' can be analyzed as well as the rankings of the negative material in the search engine results. In most cases, it can be shown that the negative postings not only spread, but gained authority as they spread, compounding the reputational damage.

Repairing Online Reputational Damage

Where defamatory or otherwise negative content is posted online, there are also specific steps that a victim can take to help repair any reputational damage. One such approach is to create and disseminate positive content about the target to push the defamatory statements down in search engine results. Another means of changing the perceptions of those who engaged with negative Internet content is through the use of paid advertising. In the litigation context, estimates of these costs can be used to quantify damages. Apart from its evidentiary value in litigation, such estimates can help any target of negative Internet attacks gauge the extent to which he or she wishes to be proactive in repairing reputational damage. It should be emphasized, though, that full restoration of a target's reputation is impossible to achieve. No matter how extensive the steps taken to rebuild reputation, they will never reach all of the people who read the original content, all of those who came across the material on other websites, or all of those who found it through a search engine request.

Conclusion

The Internet makes it easier than ever to disseminate information, and barriers to entry into this vast “marketplace of ideas” are few. At the same time, procedures commonly used to ensure that the accuracy of statements published in traditional media outlets are frequently eschewed by Internet bloggers and publications. The result is that both individuals and companies are increasingly suffering reputational damage from false or misleading digital publications ' including journals, blogs, social media, video channels and Twitter. Until recently, both the extent of such harm and the cost to repair the target's reputation have been difficult to quantify. Digital tools, however, can now help quantify the extent to which negative content has gone viral, as well as the cost to begin the process of repairing the resulting reputational damage.

'

Lucinda Bach is a partner in DLA Piper's Litigation practice in Washington, DC. She has a broad-based practice that encompasses all manner of commercial disputes, with an emphasis on employment-related matters, including breach of noncompetition agreements, trade secret theft, Sarbanes-Oxley whistleblower litigation, and employment discrimination. Mary Gately is the co-managing partner of DLA Piper's Washington, DC, office and co-head of the office's Litigation group. She focuses her practice on reputation management, class actions, cross border litigation and other complex litigation in the fields of the First Amendment, product liability, and commercial litigation. Craig Kronenberger is Global Managing Director at Edelman. He specializes in communications marketing strategy, reputation management, global communication and planning, crisis, social media, search engine marketing and paid media.