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Although it is difficult to get a successful result in an online defamation issue, it can be done by carefully establishing who is making the comment, and where they are based.  Other important considerations are how damaging the comments are and whether threats might drive the defamer to make further comments. Litigation and threats of litigation are not always the best way forwards but they can be a useful tool. The Facebook case illustrates one such instance where litigation was used to stop defamation on a social networking site.

The Facebook case: A modern take on defamation

Many web users have a false belief that they can say anything they want on the internet and not be held responsible. The courts are finding otherwise. In the most recent English case, Applause Store Productions Ltd v Raphael [2008] EWHC 1781 (QB) (QBD), a man was held liable for comments made on Facebook. Although the limits of defamation law were hardly stretched in this case, it is interesting to see how the court responded.  

The case involved Mathew Firsht, the owner of Applause productions, a well known company which provides audiences for television shows. He did not have a Facebook account. In June 2007 a fake profile was placed up on Facebook in an account using Mr. Firsht’s name.  This featured extensive personal information about him including his sexual orientation, political views, religious beliefs and a picture – supposedly of Mr. Firsht – but which was actually a copy of the profile picture from his twin brother’s Facebook page. The profile also included a link to a Facebook Group called ‘Has Mathew Firsht lied to you?’ In this case there was no dispute about whether the material was defamatory but only over whom had put up the profile and the group.  

The defendant, a Mr. Raphael who had been a friend of Mr. Firsht and also knew him professionally, had his identity revealed after Firsht’s lawyers sent a takedown notice to Facebook and obtained a Norwich Pharmacal order against Facebook.  The order required Facebook to disclose not only the registration data but also details of the IP addresses and email addresses which created the profile.

The profile had in fact been created by someone at Mr. Raphael’s IP address. After the profile was created all relevant activity which occurred on the fake account continued to come from Mr. Raphael’s IP address. The same IP address was also used during this time to login into two other Facebook accounts: Mr. Raphael’s account and Mr. Raphael’s girlfriend’s account. The fake account had only been signed into from two different computers at the IP address which included Mr. Raphael’s computer and his girlfriend’s laptop which he admitted he often used. The facts about the IP address and login details were not refuted by Mr. Raphael.  

The case gets even stranger. Mr. Raphael’s defence was that he did not create the profile and that the evening the profile was created he and his girlfriend had met a group of strangers at a bar who then returned home with them and spent the night. He said that one of them must have created the profile from his computer. He did not give an explanation of how someone else had been logging into the account from his IP address on the subsequent times the account had been accessed which would have been after the fake profile creating stranger left his home.  He instead choose to defend himself by relying on alibi evidence that he had not been at home on the other occasions when the Facebook profile had been accessed so it had to have been someone else.

The judge did not believe his story at all (rightly so) and decided that Mr. Raphael had in fact been the one to put up the false profile as well as the defamatory group.  Although the profile was not visible for a considerable length of time, 16-17 days, the judge ruled that due to the popularity and nature of Facebook, which targeted the material towards people who knew Mr. Firsht, the materials were particularly damaging. The Judge also ruled that the allegations of dishonesty were serious enough to harm Mr. Firsht’s business so allocated the award with £15,000 to Mr. Firsht personally, £5,000 to his business and an extra £2,000 for breach of his privacy. In this case, Mr. Raphael learned to his chagrin that comments made online can be costly and that lawyers can often get around the anonymity problem with IP addresses identifying computers not users.

Liability of Internet Service Providers

The other point to bear in mind when discussing defamation on the internet is that in some jurisdictions, including England, Internet Service Providers can have liability for content on the sites they host. They can be liable even if they were merely passively hosting the site unless they take down the objectionable material when they receive notice of it. The famous case on this point in England is Godfrey v. Demon.  In that case, an unknown person purporting to be Godfrey put up a comment on Demon’s server. The statement was defamatory.  The real Mr. Godfrey asked to have it removed telling Demon that it was fraudulent.  When Demon failed to remove the post Godfrey sued for defamation and won. This case established the importance of  ISPs treating complaints seriously and investigating and taking down any content that can be considered defamatory.

Since this case, the E-commerce directive has come into effect which also has ramifications for when a host can be liable in defamation (or for other acts).  ISPs are in a difficult position. On the one hand if they remove any content posted by their customers they could be in breach of their customers’ contractual rights (unless their contracts expressly absolve them from liability in certain circumstances) On the other hand if they don’t remove the content they could become personally liable for it to third parties.

Under the E-commerce Directive  most ISPs will be viewed by the courts as a mere conduit and therefore not liable for the content, as long as they do not initiate the transmission, select the receiver of the transmission and do not select or modify the information in the transmission.  Nevertheless, ISPs will still have liability if they are notified of infringing material and then refuse to take it down, and there are those who believe their responsibilities should be broadened further.

The position in the USA

In the United States, ISPs are not liable for defamatory information but they are often joined as co-defendants in lawsuits with John Doe.?  There is a purely practical reason for doing this. ISPs are becoming increasingly wary of divulging information about their users since it could be an invasion of privacy.

By joining the ISPs as defendants, once the lawsuit is initiated lawyers can make discovery demands of the ISP to get all of the relevant data which could help them trace the unidentified user who posted the comment.  Once the user is identified the ISP is usually dropped from the lawsuit and the user remains the sole defendant.

These laws not only have ramifications for ISPs but for any company which has a forum or allows user generated content on their website. Many companies are not aware that they themselves can be found liable for defamation due to actions of employees or other third parties on these websites.  In-house lawyers are becoming increasingly aware of the laws on defamation and privacy in order to take adequate steps to protect their employers.

What to do

If you find that you are the subject of a defamatory comment online there are a number of things that can be done.  Clearly balance the seriousness of the comment with the costs associated with getting it taken down.  The last resort option would involve going to court to get disclosure orders. Unless the comments are particularly grievous or widespread other avenues should be explored first.

If you are dealing with a hate site that uses a domain name similar to your company name there may be the possibility of trying to retrieve the domain name through a UDRP or other dispute resolution policy. However, this can be risky since at the moment it has not been decided whether these types of sites constitute fair use under the rules.  The other problem with this method is that you may inflame the situation further.  Also your efforts could be wasted if the site simply reappears on another non-infringing domain name.

Another option is to address the comment in the press or on your own website. Recently, in Israel, an anonymous internet user began a hate campaign against Israel’s best known maker of dairy products.  Defamatory comments were posted on a variety of websites and also sent around through emails. The company responded to the situation by posting comments on the website and also sending out their own emails via employees which defended their business.  This approach has been successful as content is no longer being posted and the record has been set straight for anyone doing future web searches.

It should always be kept in mind that attacks are often short lived. Surprisingly the best option sometimes can be to deal with the situation by ignoring it, and possibly using SEO strategies to keep the site or the comment low down in the search results.  The comment or website will often disappear since it takes a lot of energy to keep the site sufficiently prominent.

Change; we hear a lot about change today. President Barak Obama spoke widely of change in his lead up to the presidency and as we now know, it was his mission statement and attitude towards his governance of the USA. Amidst political rhetoric, there was change on another scale that was taking place right through the political campaign. Politicians are known for their vast budgets during their campaigns and there was none greater than this. The Obama political campaign not only topped budgets but there was a change far greater in their approach to the campaign itself. This political campaign was the first ever US presidential campaign that targeted internet marketing unlike ever seen before. Some speculate that the personal one-to-one nature of the internet marketing campaigns were part of the driving force in the Obama victory.

Change; there is great change taking place in the internet marketing domain unlike ever seen before. On average a person is hit with over 2000 sales or marketing messages each day. This is almost too much to contain when you think about it. Telemarketing, trade shows, seminars, direct mail / response, TV ads, news paper ads, banners, billboards, etc. clutter our lives so much that meaningful messages are often diluted or drowned in this ocean of messages. The marketing and public relations domains are hard pressed these days to come up with penetrating ad content that reach their target audience. The great change we notice taking place in the internet marketing domain today deals with a concept termed inbound marketing. This strategy deals with the concept of being found by consumers rather than pursuing and hitting consumers with marketing messages.

The concept of being found is like a tropical bird that flutters colourful feathers and dances to a beautiful beat in the hope that its partners hear them and advance in their direction. Being found is all about developing an expert opinion in your industry and attracting visitors naturally to your sites. The concept of being found needs to be applied meticulously as one can imagine, there are plenty of birds making plenty of noise in the jungle.

Being found entails trying to understand who you are trying to attract in the first place. What is the marketing persona i.e. your target market? If you are a hotel based in Leicester Square in London, UK then your target market could be tourists visiting London looking for a central location to stay; or the theatre market with so many production shows in close proximity; or even perhaps the younger tourist club goers catered for in the region.

Marketing for being found in the internet domain carries two basic ground rules – content and engagement.

Without content there is very little value to the consumers you want to bring on to your site. Content could be in the form of a blog site, articles, reports, white papers, press releases, eBooks or useful snippets of information. The critical characteristic of the content should be that it is useful and interesting to the target market. Content is absolutely critical. Let us explore some of these content tools.

Blogging for business is one of the simplest forms of creating content. It is short and if interesting could hold an audience captive. It is important to not only blog about who you are but more so the wider context of your services and products. Consumers are savvy. They know when a business blogs for the purpose of profit. They are not interested in subscribing to product descriptions. They seek unique value. A hotel near Darling Harbor in Sydney, Australia could capture a wider audience by talking about the happenings in its surrounds. For example speaking about tours from the harbor, the opening of the Lindt café close by, the Sydney aquarium and updates on its seal population. Perhaps if one is targeting the Japanese market, the mention of the Sydney Fish Market being in walking distance to Darling Harbor and providing some of the freshest seafood in the world would provide that edge i.e. that unique bit of knowledge which makes subscribing to your blog worthwhile and a true value addition. The key is to make content interesting, non commercial and more so viral in its nature.

Article writing campaigns add tremendous value to your site by the exposure they provide your site through their numerous channels of distribution. They also add fabulous SEO value to your site. eBooks are useful when given out free due the viral nature of the product i.e. people love to share free things especially if its current and interesting.

Speaking of SEO it is critical that the content we spoke of previously follows strict SEO guidelines. SEO is not as complicated as many people make it sound. SEO takes time and it is not a miracle strategy that promises immediate results. It takes time. Once you get your head around that concept it is not that complicated. It involves for the most part using the appropriate keywords i.e. words that your target market are likely to type on search engines in order to find you. A powerful set of keywords used in attractive content is a key step to SEO. Building links is possibly even more important. That is the same as asking other sites or blogs to hold your web link on their URLs. That basically counts as a vote for your site. The more votes you have the more important Google or Bing think you are and the more SEO value you hold. The more SEO value you hold the higher up the search engine results your go. Of course SEO experts would also say that your web URL, titles, descriptions, the use of ALT text, anchor text and the listing of your sites on search engines such as Google or Bing are important and they are indeed. However instead of trying to trick search engines I think what most companies or businesses should do is to try and focus on the most significant element of SEO – content and votes. The more interesting your content and its significance to your target market and other sites, the more likely you are to attract more visitors to your sites.

As much as content is important to the strategy of being found, it is pointless unless the businesses engages with its consumers. The internet has made the lives of marketers simpler and more resourceful. Never before have sales and marketing teams ever been able to engage directly with so many consumers (millions!) using such simple tools. The internet has become social. There are watering holes in every savannah and it is up to marketers to try and find them. Watering holes are where your customers or target market gather. Where the elephants, buffalo and giraffes gather to drink water is where you want to be if you are trying to sell the latest and tastiest varieties of green herbal delights. Social media platforms have made engaging consumers even simpler. Engagement need not be complex but it can turn out to be lifestyle marketing. Hanging around where your consumers hang around to talk is an age old theory. For example where would you hang around in ancient Israel to discuss the latest news – the Synagogues; or where would you go to in old London to discuss politics and trends – Speaker’s Corner. I am sure you understand what I am saying. The internet has made news sharing and discussions even simpler. There are more watering holes available today than any great African grassland holds. Blogs, Google Forums, Yahoo Groups, Yahoo Answers, Linked In groups, Facebook Fan pages, Facebook groups, Twitter, You Tube, Hi5 and MySpace are all watering holes where consumers gather. It is up to you to listen out for topics of interest and engage consumers; or even start new conversations. Do not be blunt, nobody likes a salesman pushing products where value addition is sought after. Always remember to focus on adding value. Make sure your consumers see the value addition and seek out your product rather than have your product pushed at them.

Forums are abundant today. I contribute to and edit a blog spot named www.StrengthTrainingChronicles.com  which engages weights trainers, rugby enthusiasts and gym goers with useful material. In order to engage with my consumers and discuss / learn new trends I Google searched Forums for such watering holes.  The results I received were unmanageable. From specific community / social web sites such as bodybuilding.com to countless numbers of forums focusing on varying aspects of the sport the research results were too many to count. Results ranged from geographic variations from London to LA and sport niches from StrongMan competitions to Nutrition. Finding watering holes is simple. Communicating with your consumers and adding value is what will bring more consumers to your site. This is public relations campaigning and brand building as never witnessed before.

Bringing guests to your home is wonderful for most of the time. But do you let the kids play around the vases or bring the movie crowd into the garden? Having a specific landing page is essential. This welcomes your target market to a target web page. Once found, visitors must be made into leads. Leads are people interested in listening to you about your product or service. Leads must be then converted into sales. Leads sometimes take time and need to be nurtured with emails or promotions together with calls to action   

If it cannot be measured it cannot be managed. Being found must be quantified in order to determine if you are being found to begin with and by the right consumers. There are so many companies that have gone bankrupt in 2009 by paying little attention to ROI (returns on investment) or budgeting their use of internet marketing. ROI is all about making the decision if your course of marketing action was worth it or not. It is important to make note of the number of visitors to your site, the ratios of lookers to bookers and the ratios of those moving onto your landing page and then entering their email information onto forms. These figures are particularly useful when gauging a new marketing tool you have employed such as engaging a certain forum or a press release or article. Google Analytics and other tools make these functions simple.

We spoke of change in the beginning and there is great change in the horizon. We are seeing a convergence of web design companies, sales, marketing, advertising agencies and public relations into one company focused on being found via inbound marketing. The days of effective TV, Radio and advertisements on magazines are shrinking as the number of ads clutter useful listenable messaging. Meaningful, attractive and lucrative value addition to any business via inbound marketing and being found is set to make waves of change in the world of marketing as the internet becomes a necessity for business.

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