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Search Engine Reputation & Internet Defamation or "e-libel"

Reflections & Advice From a Career Re-builder & Internet Defamation Survivor

Short on time? See the condensed version here.

The Very Low-tech End to Business and Career

by Michael Roberts — Internet Libel Survivor, Case Analyst and e-libel Victim’s Advocate.

NOTE: This is the long version, you can read the condensed Internet Libel Help Tips here.

Reputation is what others say about you.
Character is what you really are as evidenced by your actions when no one is observing.

IMPORTANT DISCLAIMER: Do not proceed without reading the disclaimer at the bottom of the page. Click here to read.

I.T security is a multi-billion dollar industry which has necessitated new and constantly revised laws in almost every nation. These laws address the criminal aspects of aggressive and deliberate business or personal privacy invasion and information disruption or destruction via various technology mediums; commonly referred to as “hacking”, or more accurately “cracking”.

So what is the “low- tech" threat that goes largely unnoticed by the community, usually ignored by criminal prosecutors and yet the cause of billions of dollars in irreparable damage to business goodwill, personal reputation and very significantly the emotional well-being of the human victims? The threat is called LIBEL; a form of the ancient legal theory of SLANDER with origins in Roman jurisprudence.

This issue is close to my heart because I have had a very frustrating and bitter experience therein. I have purposed to collaborate with Rexxfield experts from various fields including psychology, medicine, technology, legal and public relations to produce resources to assist victims in their efforts to remedy the wrongs and for potential victims to mitigate the risks.

Defamation is the term used internationally to generally describe an injury to reputation; some European countries simply refer to as simply as "insult" (translated). Slander and Libel are false or malicious claims that may harm someone’s reputation. Slander and libel both require publication with the fundamental distinction between the two lying solely in the form in which the defamatory material is published. If published in some fleeting form, such as spoken words or sounds, sign language, gestures and the like, then this would be slander. If it is published in more durable form, such as in written words, film, data disc (CD or DVD), blogging, web sites and the like, then it is considered libel. The key to these definitions is that the statements must be false. If someone published the truth about a person, it IS NOT slander or libel. Slander and libel are not protected forms of free speech under the US First Amendment. [Reference]

In law, defamation is the communication of a statement that makes a false or deceptive claim, expressively stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government or nation. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts where one person reveals information which is not of public concern and the release of which would offend a reasonable person. Unlike libel or slander, truth is not a defense for invasion of privacy. [Reference]

The Security Enigma

The cost of acquiring and implementing I.T security systems to protect the information assets of organizations is relatively large. Gone are the dot-com days when a VAR could hype a new appliance or software solution that promises the world but delivers only headaches. Instead common sense is applied with careful consideration being given to the return on investment (“ROI”) for risk mitigation, disaster recovery and business continuity planning. After all, in most enterprises the most valuable asset of the balance sheet is not insured against loss, damage or theft; that asset is the data, customer lists, secrets, plans and the organization’s or individual’s reputation.

Despite the prudent and extensive developments to mitigate the risks associated with unauthorized breaches in network security and other business disasters, very little has been done to assess the cost or to stimulate moves toward equitable judicial reforms to combat low technology cyber stalkers, antagonists, liars, extortionists and other emotional terrorists. One well placed blog entry or web site with strategically placed keyword combinations can destroy an individual’s career, or many years of reputation and goodwill building for a business. For this unethical and cowardly minority a blog can become the cyber equivalent of an IED (improvised explosive device) for his or her victim’s career in the case of an individual; or the livelihood of anywhere from a few people to thousands of families who depend on the continued good standing of their employer in the community.

Although there is legislation for criminal prosecution of defamation offenders in some U.S. jurisdictions (17 US states), it is almost unheard of. This leaves only remedial civil court action which is expensive, drawn out and emotionally draining. The remedies available through tort are hindered and largely neutered by the lie monger’s ability to engage in guerilla tactics and wield their poison keyboards with apparent impunity by hiding behind anonymous user names, guest passes and I.P cloaking solutions. The explosive increase in public hotspots in restaurants, airports and other anonymous Internet connections makes anonymity easier by the day. Additionally, the third party dissemination and republication of libel can turn the reputation problems into a wildfire. This can be particularly damaging if the victim has a unique name or trademark and a low appearance density in search engines. We all have naïve and gullible friends or family members with poor impulse control who insist on forwarding silly email rumors without checking the authenticity at snopes.com or other urban legend sites. It takes only a few of these “It was on the Internet; it must be true!” type people enabled by simple blogging technologies to result in a search result on the victim’s name that is monopolized by lies. That is, should one or more of the naïve folk decide at their sole discretion that the allegations warrant republication elsewhere. The immediacy of the Internet combined with poor impulse control are a devastating combination for libel victims for reasons that do not require rocket science to imagine. The dilemma is exacerbated further due to the fact that many web sites refuse to take down materials without a court order.

I have had extensive personal experiences with an antagonist who has relentlessly attacked me physically, emotionally, financially and publicly .Free Internet Blogs have been the most damaging venues to me as an entrepreneur; in early 2008 I had an agreement in principal with a European angel investment team to fund a start-up venture that I could not grow organically. Within 24 hours of the agreement the angels found my antagonist’s web site and withdrew their offer immediately. In early April 2008, a $70 million enterprise was enthusiastically engaged in dialogue with me for a partnering venture in the USA… until they found "that web site" and withdrew.

Naturally, the more absurd the assertions the less likely an intelligent and objective observer will be to believe it. However, once that bystander becomes a potential employer or strategic partner in business the scenario changes drastically. The decision they make about associating with the libel victim will be filtered by the question “what will my customers think?”. If they have customers who believe everything they read in tabloids, or who forward chain emails without checking for authenticity, then I am afraid you will likely become the proverbial leper. If your antagonists are clever, they will cast flaming aspersions against you that are altogether deceptive, but sprinkled with enough truth that, although benign in its own right, makes the tale all the more believable. This is called "spin" [define spin]. I have a very good friend and business associate who was recently married; I trust this gentlemen implicitly and I believe he holds me in the same regard. He asked his bride whom I have never met to read the web site that libeled me (before it was deleted); when she had finished reading she stopped short of insisting that he have nothing more to do with me. Thankfully my friend and business associate of over 10 years was a witness to many of the events on which the tales were spun and was able to assuage her fears.

Take the High road, the Low road or the Futile road?

Litigation – The Often Futile Road (and expensive)

I have taken action in the civil courts and am still seeking relief. This is not due to a weak case but rather, absurdly long delays between hearings, judges who cannot absorb the scope of the problem or technologies, and in my case continuances due the unavailability of a jury. I am beginning to realize that the notion of “justice”; at least at the hands of man, is often just a warm fuzzy feeling of false security. I am not suggesting that victims should not seek justice through the relevant authorities placed over society, or embrace anarchy. I do, however, counsel libel victims to set their expectations lower rather than higher; in doing so disappointment will not be so bitter if it is indeed the end result. Notwithstanding, those wishing to pursue legal remedies have Rexxfield’s experience and resources at their disposal to assist in building their case.

I would also submit that the less sophisticated the venue (courts in rural areas) the more likely it is that the judge will be so intimidated by his or her lack of knowledge that he/she will err on the side of caution for fear of stepping on the First Amendment. In my case, the judge had previously made an off-record statement that “this computer business is foreign to me, if it was corn farming I could deal with it” or words to that effect. I filed an emergency motion for an injunction and had no relief after nearly five months. There are, however, instances throughout the USA where emergency motions have been treated as such and sites have been shut down or censored due to false claims and assertions within hours.

Keep in mind that where anonymity or skilled liars are involved, it may be difficult to prove the identity of the offender easily and this could lead to a tangled web of finger pointing and subpoenas leading to dead ends. Google, Yahoo and others do not wish to be involved and may even force you to go to their local courts (California?) to validate your subpoenas; the costs will add up.

If the plaintiff is merely a private person, the plaintiff must usually only show that the defendant acted negligently. If the private person wants to recover punitive damages, he or she must show evidence of actual malice.

As an aside, Rexxfield and our legal partners have been able to obtain ex-parte production orders against Google in as little as one week. Although this does not immediately take down the offending material, it does help with positively identifying the author.

Basic Requirements of a Defamation Case

A defamation plaintiff must usually establish the following elements to recover damages:

Identification The plaintiff must show that the publication was “of and concerning” himself or herself.

Publication The plaintiff must show that the defamatory statements were disseminated to a third party.

Defamatory Meaning The plaintiff must establish that the statements in question were defamatory. For example, the language must do more than simply annoy a person or hurt a person’s feelings.

Falsity The statements must be false; truth is a defense to a defamation claim. Generally, the plaintiff bears the burden of proof of establishing falsity.

Statements of Fact The statements in question must be objectively verifiable as false statements of fact. In other words, the statements must be provable as false. (Caveat: Expressions of opinion can imply an assertion of objective facts. See Milkovich v. Lorain Journal.)

Damages The false and defamatory statements must cause actual injury or special damages.

"He is a jerk!"

It should be noted that Satire, imaginative expression or rhetorical hyperbole is protected under the U.S. First Amendment so long as they do not express or imply false facts. As an example, if Mary was to say "Fred is a jerk", that statement is not libel. However, if she were to say "Fred is a thief", then she would be exposed to a libel suit as it was a statement of fact. Unless of course Fred actually is a thief, at which point she would be protected because the truth is the ultimate defense in a libel action.

“Libel suits for material placed upon the Internet promises to be an exciting and volatile area of law. The methods that different countries currently use to resolve libel issues will have varying rates of effectiveness, and should be viewed closely as new legislation is developed to better handle the growing number of internet defamation cases. At the same time, strong consideration should be made for having an international methodology of handling internet defamation cases. Forum shopping problems and the worldly nature of the Internet may make an international approach the most realistic solution.” [Reference]

The Low Road

One of the Seven Deadly Sins

The Low Road is to fight fire with fire. In doing so you are simply going to inspire your antagonist to double his or her efforts. This is even more likely if the offender has a narcissistic or anti-social personality disorder such as in my case. The best thing you can do with this type of person is humble your pride and opt for a strategic withdrawal; that’s right! DISENGAGE. However, this does not mean you should give up. See “The High Road” option below for an explanation.

My father is a simple but wise man; I remember him once saying of some bullies who taunted and lied about me in grade four “what they say let them say”, I responded, “but some kids believe them!” He replied “the truth will remain the truth no matter how it is believed”. As it turned out I settled the issue with one of the two fights I have had in my life (both under the age of 12); but the fact remains that truth does remain the truth despite what Mr. Plato may think.

The High Road

As mentioned, don’t waste time fighting back; you will only fuel the fire. Seek injunctive relief through the courts by all means if the case is watertight, obvious and potentially affordable.

1st step – Give Libel Notice to the Antagonist

Give formal notice to the libeler of his/her libel. This leaves them without excuse should you seek damages through court. You have an obligation to mitigate your damages as it is within your reasonable power to do so.

2nd step – Give Libel Notice to the 3rd Party Publisher

Blog and forum owners don’t want to get dragged into a street fight or a court battle. Although the law is somewhat unclear as to the extent of 3rd party providers and re-publishers of information and differs country to country , I found that in many cases, the site owners quickly removed the anonymous postings made by my antagonist when I provided them with very basic proof that they were perpetuating the distribution of libelous claims. Once they have been formally provided with proof of libel they are often reasonable.

3rd Step – Dilution is the Key

The best strategy is to push the offensive and libelous material off the first page of Google and as far from the top of the list as practicable. If the libel has already occurred it will be relatively easy to design your Online Libel Mitigation and Remediation™ response (OLIMIRE™); simply analyze the keyword strategy used by your antagonist and do a better job.

Chances are most people or organizations will not consider an online libel campaign as a serious risk to their future until an enemy has laid siege to their Google ramparts. As such, the appearance of remedial contingencies, if any, will be a simple coincidence and probably only there if they have implemented a search engine optimization (SEO) strategy. Notwithstanding, there will probably be significant gaps and exposure to damaging defamation unless online libel threats were specifically anticipated.

Many organizations today are investing heavily in SEO campaigns using internal efforts as well as massive outsourcing contracts with SEO specialists. I strongly suggest that if you are implementing an SEO campaign, do it properly and incorporate an effective OLIMIRE strategy. Chances are you can piggyback OLIMIRE with your SEO for no or little extra cost; it will prove to be a prudent and economical insurance policy. In addition, an SEO vendor who understands the need for OLIMIRE is likely to be a more capable SEO practitioner.

SEO vs OLIMIRE™

For Organizations

Search engine optimization (SEO) is the process of improving the volume and quality of traffic to a web site from search engines via "natural" ("organic" or "algorithmic") search results for targeted keywords. Usually, the earlier a site is presented in the search results or the higher it "ranks", the more will be the searchers visiting that site.

The OLIMIRE approach often involves using keyword combinations which are not presently important but may be in the future as a result of bad press, smear campaigns, critiques, email chain letters and so forth. The most obvious contingency being the names of key individuals in an organization who may not necessarily have a high public profile now, but may be thrust into the limelight if named (rightly or wrongly) in a scandal, accident or other unfortunate event.

For Individuals

My personal testimony with regard to online libel is mortifying. The allegations that were leveled against me by my antagonist were heinous to say the least and were unfortunately taken seriously by many due to the smoke/fire assumption. I was publicly accused of child abuse, fraud, theft, tax evasion and many other crimes including veiled language suggesting a murder conspiracy. My accuser’s anti-social personality is a matter of record with a trail of chaos, destroyed lives, destroyed careers and many serious criminal and civil offenses and yet the allegations were taken seriously by many who were not privy to this history.

It had taken me 20+ years to build my resume and reputation. Naturally anyone considering employing, partnering or contracting with an individual in any substantial way is going to “Google him” (gender inclusive). The first search conducted will probably be the person’s name and the name of his or her most recent business or employer. The efficiency, availability and reach of Google and other search engines has in a few short years permitted a person’s enemy to turn the victim’s greatest vocational asset into a liability; that asset being their resume or CV. In the case of an innocent victim this is a bad thing but where the allegations do have basis in fact, it is a positive development. I am sure many crimes have been averted due to the dissemination of information about convicted child molesters when they move into new communities, for example.

Invitation

At this time we would like to invite submissions from anyone who has struggled with these issues. We are seeking case studies for a definitive book on internet defamation.

Closing Thought

“Do everything you can to live a quiet life. Mind your own business. Work with your hands, just as we told you to. Then others will have respect for your everyday life. And you won’t have to depend on anyone.” 1 Thes 4:11-12

DISCLAIMER

This essay should not to be construed as legal, medical or mental health advice. This essay was not authored by or sponsored by an attorney, physician or therapist and is provided for informational purposes only and is not intended to express or constitute legal, medical or counseling advice to any reader. No attorney-client relationship between the reader and any attorney is created by the essay, and no reader should act or refrain from acting on the basis of any content in the essay except in reliance upon the advice of a qualified attorney licensed to practice in the reader’s or other applicable jurisdiction. The author is not an attorney or a firm of attorneys and is not licensed to practice law in any jurisdiction.

*** US States with Criminal Defamation Penalties

Colorado, Florida, Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Utah, Virginia, Washington and Wisconsin, along with Puerto Rico and the U.S. Virgin Islands.

The following states DO NOT have criminal penalties for libel, defamation or slander.  Victims in these states would have to seek civil remedies: Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, West Virginia, and Wyoming.

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