Sometimes you need to invoke one law or another to support or attack a particular position. If we had a dollar for every time a politician claimed that “the law states this” or “the courts agree that,” well, we wouldn’t be in the web reputation management business. We’d be sitting on a beach somewhere.
The dirty little secret, though, is that the law is often open to interpretation, especially when a law is relatively new and untested. Some of the body of online reputation law fits the “new and untested” bill. And while other elements are more settled, they don’t universally benefit those looking to burnish their online image. So while these five areas of the law may help your web reputation campaign, they may also work against it. In any event, this article will help you weigh the pros and cons, and consider the resources that might be involved.
1. Freedom of Speech / The First Amendment to the Constitution
The First Amendment is probably the most widely invoked legal concept in America, but hey, maybe there’s a reason it’s “first.” For our purposes, the most salient bit of its text is:
“Congress shall make no law...abridging the freedom of speech, or of the press…”
Despite the original wording’s focus on the federal government, the First Amendment is universally agreed to apply to the actions of state and local governments as well.
For a 225 year old law, the First Amendment is still pretty influential. It’s helpful to look at it as a backstop that governs how far courts and governments can go in limiting speech, whether online or in other media. Over the years, countless court decisions have added nuances, limitations and exceptions to the universality of First Amendment. Some of these are discussed below. Here’s the takeaway, though: If you don’t see how—or can’t make a convincing case that—one of these nuances, limitations or exceptions applies to something posted about you online, whoever posted it (or allowed it to be posted) is probably on firm legal ground.
2. The Communications Decency Act of 1996 (CDA)
The CDA was originally drafted to restrict the distribution of Internet pornography, much of the CDA is now invalid—struck down, ironically, by a 1997 court case that upheld the First Amendment rights of Internet users to produce and disseminate sexually explicit content.
But one critically important part remains: Section 230. Prominent online-defamation lawyer Aaron Minc describes the remaining bits of the CDA as the “linchpin” of the Internet, and he’s not exaggerating. The key passage is as follows:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
In other words, Internet Service Providers (ISPs) can’t be held liable for—or forced to remove—any of the virtual content on their servers. Courts often extend these protections to individual Internet users and webmasters, including those who make a living posting reviews, images and other content pertaining to individuals and businesses. Google, Yelp, RipOffReport, social media sites—you name it—are all immune from legal claims, at least in theory.
Section 230 of the Communications Decency Act is key to protecting free speech on the Internet, but it’s also easy for sketchy publishers to hide behind. Fortunately, the most extreme interpretations of Section 230 are being tested right now, and the following three areas of the law offer some welcome news for those looking to protect their online reputations.
3. Digital Millennium Copyright Act (DMCA)
When it was passed in 1998, the Digital Millennium Copyright Act (DMCA) basically extended globally accepted copyright protection protocols into the digital world. But 1998 was a really long time ago (In internet years it seems like 100 years ago.) Like copyright laws in the pen-and-paper world, the DMCA protects content creators from having their material stolen and and republished without attribution.
Like Section 230 of the Communications Decency Act (above), the DMCA does limit the liability of ISPs (internet service providers) and publishers that aggregate (combine) third-party content and material, so DMCA lawsuits against such entities aren’t always a slam dunk. But if you find that your original work has been reprinted without your permission or any reference to your status as its creator, you can expedite its removal with a DMCA takedown notice, circumventing the courts entirely. And if your work has been used in a defamatory fashion, you may be able to use the Digital Millennium Copyright Act to fight those who actively seek to harm your online reputation. In this case you may be able to have Google remove the content from their system.
4. Different types of defamation, false light, slander and libel
Speaking of defamation: Few online reputation law concepts are more important to your digital image. Defamation is a false statement made by a third party, often for the purpose of undercutting the subject’s reputation. “Slander” and “libel” describe verbal and written defamation, respectively; both exist on the Internet. For non-public figures, defamation exists if a statement can be proven harmful to the individual’s reputation, regardless of malicious intent. For public figures, such as actors and politicians, actual malice must be proven—a higher bar to clear.
“False light” is a related concept describing a verbal or written statement that, while not technically meeting defamation’s falseness criteria, is intentionally misleading and negative. It’s only valid in some jurisdictions, and you typically can’t sue for both false light and defamation. Where these claims are accepted, the parameters are broadly similar to defamation’s, with the key difference that false light statements must be proven to be embarrassing or emotionally painful, rather than outright damaging to the claimant’s reputation.
The takeaway: If someone posts something untrue or misleading in a damaging way about you online, you may be able to sue them.
5. Laws and precedents pertaining to the removal of negative online content
Sorry for the mouthful, but it’s really important to convey the sheer scope of laws and court decisions concerning the posting and removal of negative reviews, images and other content. Some are great for the web reputation management business. Others...not so much. Here’s a quick rundown of where things currently stand:
● Booking photo / mug shot restrictions. Recently, some state legislatures have moved to limit the distribution and visibility of mug shots and booking photos—potentially damaging images that can persist years after a criminal conviction drops off your record (or, worse, after charges have been dropped altogether). Utah prohibits law enforcement from providing booking photos to websites that post them and then charge the subject for removal, which to us seems like a form of extortion. Oregon and Georgia compel website administrators to remove booking photos of state residents whose charges were dropped or never filed.
● California’s online “eraser button.” California recently passed a law that compels website owners to provide an “eraser button” for minors who wish to erase embarrassing content that they created. For instance, the law compels social media sites to facilitate the removal of compromising, self-posted images at any time.
● The European Union’s right to be forgotten. The EU made a major change to its digital laws with the “right to be forgotten,” an emerging framework that allows citizens to request the suppression of search results—not the removal of content itself, an important distinction—leading to embarrassing, defamatory or just plain unpleasant content posted on websites hosted within its jurisdiction. This rule is far broader than the DMCA, anti-defamation laws or anything else on the books in the U.S.
● Levitt v. Yelp and the concept of “review extortion.” This was an important court case that shielded Yelp and other review sites from criminal prosecution or civil lawsuits under anti-extortion laws. In a nutshell, it states that review sites can charge individuals and companies to edit or remove negative reviews. However, such sites can’t threaten to post or promote negative content in lieu of payment—the content must already exist on the site and be posted by a third party.