“Sticks and stones can break my bones,
but words can never hurt me.”
We all know that line, and many of us have used it in retort to a vicious verbal verbal attack. But the truth is that words can hurt you, especially when they are broadcast online to thousands or even millions of people. We’ve also all heard the old adage “Don’t believe everything you hear,” but the fact is that many people do believe everything they hear and, whether they do or not, have a tendency to repeat it; especially if it’s scandalous.
The advent of the Internet has had a profound impact on the manner in which ideas and information are exchanged in the 21st century. It has leveled the publisher’s playing field, putting newspapers, magazines and bookstores out of business, and enabled any average person with access to a computer the potential to reach a broad audience on whatever subject that person may choose. However, unlike a newspaper or magazine, authors of Internet “articles” are not restrained by ethical guidelines or legal principles.
While the notion of free speech may be an honorable one, the first amendment’s sanction is by no means absolute. Just as the second amendment’s right to bear arms does not give a person the right to shoot somebody, the first amendment’s protection of free speech does not apply to all speech. Defamatory speech is specifically not protected. There are many examples of the power of the Internet in today’s cyber-world that have had a profound effect on the real world. Middle Eastern governments have been toppled using the Internet as a weapon of social change. Whistleblowers can now “blow their whistle” to a larger audience, but, as we can see in the cases of Bradley Manning and Edward Snowden, the power of the Internet is no match for power of the United States government, whose boundaries of enforcement go beyond any geopolitical border and can even force down the airplane of a government official of another sovereign state if it suspects you are harboring a treasonous criminal. In the days before the Internet, bullies, people jealous of your success, competitors in the workplace, or competing businesses were still out there; but their attacks were short-lived and soon forgotten. The Internet gives them the power to permanently destroy any reputation that is associated with any name that can be “googled,” and the results will outlast your lifetime. Questions like “Mom, was grandpa really a bad man?” may become commonplace in this cyber-age. Technology has moved faster than the law with regard to the Internet. The Internet gives the defamer the power to destroy a hard-earned reputation with a few clicks of a mouse, with far-reaching effects, to an unlimited audience. The Google algorithm prioritizes the “most popular” searches on the first page of search results. Let’s face it: people love scandals. Many a top news story has been made, especially in the United States, from a scandal. Remember Monica Lewinsky, for example? People, in general, love bad news; which is why the news is so full of it. Bad news is a “headline” and everything else is just a “feature.” What this means to the Google algorithm is that the more scandalous the gossip is, the better position that gossip will achieve in Google’s results, and the longer it will stay there. Gossip which used to go by “word of mouth” would never have been published by any respectable newspaper or magazine. Now any blogger can be a “reporter” – even an investigative reporter - without any journalistic skill, responsibility or conscience. And the gossip that they spread about you can ruin your credit, cost you a job opportunity, or lose you clients.
But cyber-bullies do not stop when they leave school. They become cyber-stalkers. The problem with cyber-stalkers is that they have more power when they are cloaked in anonymity, as well as less responsibility. If a cyber-stalker acts anonymously, it is harder to identify him and bring him to justice. Anonymous free speech has been upheld by the U.S. Supreme Court in Talley v. California, 362 U.S. 60 (1960). Of course, that was over 50 years ago, when there was no Internet; but it’s still a good law. So, as a result, you have cyber-bullies using modern technology to torture their victims to the point of despair and even suicide, and they have a constitutional right to say whatever they want, anonymously. Threats of violence, harassment of former romantic partners, and posing as the victim and posting private matters and photographs on the Internet is very common. A cyber-stalker will go to any length to try to cause you pain and ruin your reputation. As the name implies, they will virtually “stalk” you on the Internet, to no end. In the real world, this behavior would possibly be criminal and you could seek a restraining order against it. But in the online world, there is literally nothing to protect you, and the cyber-stalker will often hide behind a mask of anonymity to prey on his or her victims. Groups of cyber-stalkers will even organize together on Internet chat boards and help each other to harass a stalker’s victim, publishing altered photographs, threats, and personal information. These “cyber mobs” find validation in reputation. As the name implies, they will virtually “stalk” you on the Internet, to no end. In the real world, this behavior would possibly be criminal and you could seek a restraining order against it. But in the online world, there is literally nothing to protect you, and the cyber-stalker will often hide behind a mask of anonymity to prey on his or her victims. Groups of cyber-stalkers will even organize together on Internet chat boards and help each other to harass a stalker’s victim, publishing altered photographs, threats, and personal information. These “cyber mobs” find validation in statement, it is slander, and if it is a written statement, it is libel. If you are a public figure, you have to prove the additional element of malice, which is a “knowing or reckless disregard for the truth.” Public figures such as celebrities (and especially elected officials) are pretty much fair game. If they weren’t, Jay Leno. and similar hosts, would be in a lot of trouble. Defamation is, in most jurisdictions, a civil wrong, or a tort, but there are many countries, including Russia and China, where defamation is a crime.
In California, the defamation law is essentially a codification of the common law. It is either libel or written defamation, slander or oral defamation. It is essentially a false statement, made to another person which causes harm to that person’s property, business, profession or occupation. Libel is “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes a person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” California Civil Code section 45.
“Slander is a false and unprivileged communication, orally uttered, and also communications by radio or any mechanical or other means which: 1) charges a person with crime or having been indicted, convicted, punished for crime; 2) imputes in him the present existence of an infectious, contagious, or loathsome disease; 3) tends directly to injure him in respect to his office, profession, trade or business, that has a natural tendency to lessen its profits; or 4) imputes to him impotence or a want of chastity; 5) which, by natural consequence, causes actual damage.” California Civil Code section 46. California, like many other jurisdictions, also has defamation per se, where damages are assumed if the false statement accuses the victim of a crime of moral turpitude, a loathsome disease (such as a sexually transmitted disease), or accuses a married person of not being chaste. Pretty clear, isn’t it?
Okay, so someone has published an untrue statement about you on the Internet, which caused real damage to your reputation. Remember the Franciscan Monk? Attack!!! Ready, fire, aim!!! Wait a minute - not so fast. As my criminal law professor said the first day of class, “In the first semester, I’m going to teach you how to put the criminals away; but in the second semester, I’m going to teach you how to get them off.”
There are defenses to defamation that you have to be aware of, such as privilege, truth, and opinion. Truth is an absolute defense to defamation. So, if your cyber-bully can prove that what he is saying about you is true, there is nothing you can do about it. There are also certain cases where you are protected from whatever you may say about a person. These are cases of privilege, and you generally have a privilege to say anything you want, no matter how outrageous or harmful it may be, in a judicial, legislative, or administrative proceeding. If a statement by your cyber-bully is an opinion about you, this is a defense to libel. For example, if he said: “I think Joe Blow is a jerk,” and he knows something about you from which he can formulate that opinion, the statement is probably not actionable. Likewise, if it is a “fair comment” or an expression of your opinion about a matter in the public interest, like Bill Clinton and Monica Lewinsky, for example (I purposely chose the most ridiculous example), the statement is probably not actionable.
Okay, your cyber-bully or mob has published statements about you on the Internet, you’re not a public figure, the statements are false, they accuse you of a vicious crime or loathsome disease, and it has completely ruined your reputation and your business. So what? Even if it is libel or slander per se, you still have to prove damages. You may say, “But of course my business has been damaged. It’s ruined. My reputation is my business.” Fair enough, but it’s very hard to prove that you have lost a customer or client about whom you don’t even know. In a defamation case, you have to bring evidence of the damages you suffered in order to recover anything significant. Prosecuting a legal case is expensive, time-consuming, and it’s very difficult to be a litigant. The discovery process can be humiliating and can feel like an invasion of your privacy.
Plus, you have to prove you had a good reputation to begin with. All of this takes evidence, which means that you have to locate witnesses who will testify about your good reputation before the defamation and witnesses who will testify that you had a bad reputation after, because of the defamation. It’s not as easy as you think. And that cyber-bully, the one who has all the time to post nasty things about you all over the Internet: remember him? He probably doesn’t have all that time on his hands because he’s rich and happily retired, getting bored counting his money, and just decided to trash you every day on the Internet. He probably has all that time on his hands because he is a loser with nothing else to do. How could he possibly pay you any damages, even if you're awarded them? These are all very important things you need to consider before you go out and hire F. Lee Bailey or Alan Dershowitz.
47 USC section 223, known as the anti-cyber-stalking law, prohibits the interstate or foreign communication of “obscene communications” with the intent to abuse, threaten or harass any person, and “indecent” communications to persons under the age of 18. But don’t expect the FBI to take on your cyber-harassment case anytime soon. They are too busy going after people who may have downloaded or watched any type of under-age pornography (another despicable activity). The federal law probably could be of some use if a member of a cyber-mob is posting personal information that could place you in potential danger. For example, if he or she posts your home address or telephone number, or your place of work, or information about where you may be and when, and implies or incites violence, this is a crime: and if you call it to the attention of the administrators of the website or blog where this is occurring, it is likely that the information will be removed. Likewise, if your social security number or private information is posted that could aid in the commission of identity theft against you, this is likely to be taken down if you complain. Several states, such as Alabama, Arizona, Connecticut, Illinois, New Hampshire and New York, have included cyber-harassment in their anti-harassment statutes, and Alaska, California, Missouri, Oklahoma, and Wyoming have defined communications made in cyberspace to be included in their anti-stalking laws. Texas has enacted a cyber-stalking law that is similar to the federal statute. But unless it’s a statement that incites violence, then no matter how untrue and no matter how cruel, don’t expect any Internet provider or even the mighty Google to do anything about it.
Unless you can prove it’s a copyright violation, there is absolutely nothing that they will do about it, and they have the full backing of the United States government to do absolutely nothing. The Communications Decency Act of 1996 (“CDA”) was enacted by Congress before the beginning of the “dot-com bubble” with the intention of regulating pornography on the Internet. In 1996 there was no Google, no Facebook, and no Twitter. Cyberspace consisted almost entirely of pornography, which makes the Act already outdated by the technology it was intended to control. Ironically, the anti-pornography portions of the Act were stricken by the U.S. Supreme Court in Reno v. ACLU, 521 U.S. 844 (1997), as a suppression of freedom of speech. The most notable portion of the Act that was left was section 230, which gives Internet Service providers (ISPs) immunity against any criminal action or federal intellectual property civil action with respect to any content that is posted on their site. Even though it is limited to federal criminal and intellectual property law, the landmark decision of the Fourth Circuit Court of Appeal of Zeran v. America Online, Inc., 129 Fed. 3d 327 (4th Cir. 1997) held that section 230 gave ISPs immunity from all civil liability with respect to content published on their sites whether or not that content was altered by the ISP. The Zeran case was an obvious case of cyber-harassment. In Zeran, a mob of cyber-bullies advertised T shirts and other items glorifying the bombing of the Oklahoma City federal building by Timothy McVeigh (such as “Visit Oklahoma…It’s a BLAST!”) and posted Plaintiff Kenneth Zeran’s home telephone number on the message. Zeran requested AOL to remove the content, which it initially did, but later it refused to remove additional, similar postings. Zeran received a barrage of threatening telephone calls and the threats of violence resulted in his home being placed under protective surveillance. While other courts around the country have rejected CDA immunity in cases where the ISPs contributed content, the U.S. Supreme Court refused to hear the Zeran case, so the result you may get in any particular case is determined by where your cause of action arose and, thus, what court you brought your lawsuit in.
On February 12, 2013, President Obama signed Executive Order 13636, calling for the development of a Cyber Security Framework to protect systems and assets vital to the United States which could have an impact on security or national public health and safety. Some legal authorities have postulated that this may extend to publicly-held companies, and that it may be a sign of cyber security regulations aimed at identity theft, viruses or malware, and potential “advertising injury” which could include copyright infringement and defamation. See Insurance Cybersecurity Regulations – What Insurance Coverage Do You Need? http://www.jdsupra.com/legalnews/insurance-cybersecurity-regulations-wh-35583/.
Now that we have determined that it is highly unlikely to succeed against an ISP for the defamatory content that appears on a particular site or sites, there is another hurdle to overcome. If you are in a state such as California, any lawsuit that is determined to censor or intimidate your cyber-bullies can be summarily dismissed, and you can be assessed with the cyber-bully’s attorney fees and costs of suit. They are called 'strategic lawsuits against public participation' (“SLAPP” suits), and 28 states have enacted legislation outlawing them, in different incarnations. They are Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont and Washington. The intentions behind the anti-SLAPP statutes are noble ones. The primary objective behind a SLAPP suit is to intimidate people who petition the government with grievances. Florida has the most restrictive anti-SLAPP law. It is limited to suits brought by the government in response to the right to peacefully assemble, instruct representatives, and redress grievances before governmental agencies, and also applies to homeowners with their homeowner’s association. California has the most strict anti-SLAPP statute. It applies to any action “arising from any act of that person in furtherance of the person’s right of petition or free speech” in connection with a “public issue.” (California Code of Civil Procedure section 425.16.) This is defined in the statute as any written or oral statement made before legislative, executive, judicial or other proceeding, any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body, any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or any other conduct in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest. 'In connection with a public issue or an issue of public interest' has been interpreted by some California appellate courts to mean any issue that applies to any person who, by their “accomplishments or mode of living”, create a bona-fide attention to their activities.” Hilton v Hallmark Cards, 599 F.3d 894 (9th Cir 2010), quoting Montana v. San Jose Mercury News, Inc., 40 Cal. Rptr. 2d 639 (1995). This leads anti-SLAPP attorneys to argue that the public decides what a public issue is and, in this case, the “public” is your cyber-mob, because it’s something that they are all talking about. As my ex-mother in law used to say, “Only famous people are talked about.” Under the California statute, your cyber-stalker can make a motion to dismiss your case in its initial stages before you have the right to discovery to even find out who your defendants are (in the case of unknown defendants, who you may sue as “John Does”). This motion stays all discovery, and shifts the burden to the Plaintiff to provide evidence that proves a probability that he or she will prevail on the claim. This is almost impossible to do without discovery, making it a fait accompli. The winning of the motion signals the dismissal of the case, and you are assessed with your opponent’s attorney’s fees and court costs.
For as long as you have been living, people have been judging you and sizing you up in almost every social capacity you have been involved in. This used to be done in person. A person would meet you, ask you questions, and get a feeling for what you were all about. In this virtual world, however, many relationships are made online. Before eyes meet, people have already exchange electronic resumes on some dating site or on Facebook. According to a study published in the Proceedings of the National Academy of Sciences, the percentage of married couples in the United States who met online is a staggering 35%.
And, in a business or professional context, people used to go to a doctor or lawyer based on a personal recommendation. In this cyber world, they are more likely to let a Google algorithm do the recommending for them. Google’s search engine is the most popular in the United States, with a market share of over 65%, and is one of the most popular search engines in the world, operating in many different languages. When most people in the United States look for a business or service, they are most likely to do it using the Google search engine. The Google algorithm is a mathematical program that searches out key words on over 150 million Internet web sites and assigns a rank to each web page on which the key words appear. It is so widely used that the word “google” has also become a verb in American pop culture. “Google it” is a common answer you may hear to a question that requires research. And when people are trying to decide whether to use your services or patronize your business or hire you as an employee, they are likely going to “google” your name and use the information they read about you to make a decision. Is that a sound way to make a decision? Probably not. Just because something is printed about you on a website, or even ten or 100 websites, doesn’t mean that it is true. But it is what they are going to look at in making their decision, so you have to face it. The power to speak anonymously, once used as a political tool, can now be used by virtually anyone. An email account, Facebook account, or Twitter account can be set up for any fictitious person. Anonymous people chatting on Internet chat rooms or bulletin boards can be difficult, if not impossible, to trace, and the sites themselves that post libelous material have the immunity to do so thanks to the CDA.
Gossip is becoming the equivalent of news. What used to be written on the bathroom wall about a teenage girl’s reputation can now be broadcast to thousands, and the record of it stays in cyberspace forever. The same teenage girl, when she becomes a mother, can look forward to her daughter reading, in explicit detail, how much of a slut she was when she was a teenager or, even worse, watching pornographic videos or pictures (possibly even manipulated) that may have been taken by a scorned lover or ex-husband. The perpetrators of these crimes go unpunished. Since they are not committing the crimes face to face, the distance and removal from the victim is like an air force pilot who drops a “smart bomb.” It becomes impersonal, the victim is dehumanized, and morality is altered. It’s easier to pull the trigger when you can’t see the person you are aiming at or witness the blood and gore as the bullet connects with its target. The Google algorithm doesn’t care if the search results it returns are true. It is designed to rank the most popular sites higher.
Your cyber-bully doesn’t have to make up some of the information he chooses to spout about you on the Internet. He has help: you. Posting personal information and photographs on Facebook, Instagram, Twitter or LinkedIn, or any number of other sites is fodder for cyber-gangs to manipulate and repost that information and photographs in ways that you may not consider to be very flattering. Just remember: everything you put into cyberspace stays there, so make sure it’s something you want people looking at 10 years from now, before you do it. It will be there online, easily accessible to all, long after you are dead and gone. My wife tells me not to talk to people about my personal life, which is good advice. It’s even better advice, in this virtual world, not to post something personal about yourself on the Internet, no matter where you post it or whom you intend to see it. It is a little slice of your privacy that you may be giving up forever. Because rumors can be posted on the Internet and published to millions instantaneously, they have more powerful effects than in the past, where they were spread from mouth to mouth. Rumors of stock splits, acquisitions, and the like have caused great swings in the stock prices of huge international companies. When Steve Jobs was alive, false news that he had suffered from a heart attack sent Apple stock down $10 per share. Zynga stock rose 10% in 2013 on rumors of a possible Yahoo buyout. Nobody checks the accuracy of anything on the Internet.
Even Wikipedia, the online encyclopedia, while often is a wonderful place to start research, has user-generated content. It can be contributed by anyone, as long as you follow their guidelines. Wikipedia is probably a bad example, because at least it has some degree of respectability as far as accuracy goes. But 90% of what is on the Internet is absolutely unverified and, therefore, unreliable. Anybody can post to a free Blogger or WordPress blog anything they want. And because the matter appears in printed form, it is automatically given a degree of respectability.
One of the most fascinating books I ever read was The Believing Brain, by Michael Shermer. (Yes, I bought it, I had to read more!) In The Believing Brain, Shermer explains how the brain forms beliefs and then will seek out seemingly-random patterns to reinforce that belief. The same is true of what people will read about you on the Internet. The old saying “Throw enough shit on the wall and it will stick” is the principle behind these online beliefs. Simply put, if they see it in print enough times, they will believe it is true. That’s quite frightening when statistics show that people doing an Internet search will seldom go beyond the first page of search results. If the first impression that someone gets of you is what they read on the Internet, that bias is not likely to change after they meet you in person. That is why it is important to take control over what people are seeing on the first page of Google. Since the best way to advertise a product or service is word of mouth, and today’s word of mouth has metamorphosed to cyber word of mouth, it makes sense that whatever is being said about you, your business, or your product on the Internet can have a huge impact on your business or job prospects.
Everything that is on the Internet that you can’t get removed by the foregoing methods will most likely always remain on the Internet – forever. When I was in the Scouts, we used to love to go to summer camp. At summer camp, we would sing songs and learn useful crafts (like how to survive in the woods if you get lost) and all kinds of other “cool stuff.” One of the things that I learned that has application to this subject is about the camp latrine. In the camp latrine there was a tool that is just about as useful as the Google Removal Tool. That tool was a stick. If the latrine got “clogged up,” we just used that stick to push “all the other shit down.” The same concept applies to Google searches. In online reputation management, the object is to put positive information about yourself on the Internet that will rate with the search engines, like Google, which will have the effect of pushing the negative information down. Since most people don’t go beyond the first page of search results of Google, and almost nobody goes past the third page, this sounds like a fairly simple task, right? Wrong! Remember back when I told you that Google puts the “most popular” results on Page One of its search page, and that the most scandalous will always be the most popular? Your positive information has to be compelling and constantly updated, because Google also rates information by its age (unless, of course, it’s scandalous enough). You can subscribe to all kinds of professional sites that will do this for you, at a very high cost. What they will do is create a generic bio about you to post as a profile on one web site (in your own name) and various profile websites on the Internet, such as Google, Facebook, Twitter, LinkedIn, and many others, and link those sites to other sites so that Google will find the information to be important enough to feature on its web search results. Or, you can go to http://brandyourself.com, and for a small annual fee, they will guide you through what sites you need to have a presence on, help you create an online profile, link that profile to dozens of web sites for full exposure, and analyze an unlimited amount of links that you choose to submit. Brand Yourself will prompt you on how to “boost” your links to have them rate higher in search engine results, and will monitor and send you emails on what links are in the top ten of your Google search page. Brand Yourself is the stick in the latrine, and I highly recommend it. You can also put news services and trivia into your personal sites in order to give them more content. Make sure that they each contain information that is a little different, or you will simply be ignored by Google and the other search robots as potential “spam.” Being active on social media sites, such as Twitter, will move your Twitter profile to the top of the Google search results. If you go with Brandyourself.com, their system will prompt you to create social media sites, but unless you use them and supply them with fresh content, they will not do you any good; so be active on the social network sites to increase your positive online presence.
Blogging is a great way to build positive search results on the Internet. I have found that a blog at http://wordpress.com is picked up relatively quickly by the Google search engine. It is easy to create a blog, and if you can’t think of anything to write on it, you can scan interesting news stories and repost them to your WordPress blog. Whenever you post, enter your tags and categories on your post and be sure to include all variations of your name. If you like to write, you can also build positive results by writing opinion columns or stories in places such as www.ezinearticles.com. (I used to write for Ezine, but stopped when I routinely started to use vids, pic, etc., so check out their regulations these days... New Blogger.com, which I use, is now greatly improved and easy to use!) But if you really have something interesting to say, I have found that the website of www.opednews.com is treated very well by Google, as everything you post there comes out as news. If you become an author at Op-Ed News, you can also create a profile that receives pretty good treatment by Google.