Michael Roberts of Mile2 IT Security Discusses Libel & Google Reputation. |
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A very low-tech end to business and career. Character is what you really are as evidenced by your actions when no one is observing. IMPORTANT DISCLAIMER: Readers are advised that this essay be considered as common sense advice, not legal advice. For that you need to go to a lawyer. IT security is a multibillion dollar industry which has necessitated new and constantly revised laws in almost every state on earth. 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” technology threat that goes largely unnoticed by the community, ignored by criminal prosecutors and yet the cause of billions of dollars in irreparable damage to business goodwill, personal reputation, and very significantly to 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 experts from various fields including psychology, 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. These resources will be made available for free as they become available through the Mile2 website. Victims of online libel are invited to contact me if they would like access to templates, resources and specific advice. "Defamation" is the term used internationally to generally describe an injury to reputation. “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 IT security systems to protect the information assets of organizations is relatively large. Gone are the 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 assessment of the 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 and emotional terrorists. One well placed blog entry or website 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 jurisdictions, 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 mongers’ 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 a naïve and gullible friend or family member who insists on forwarding silly email rumors without checking the authenticity at snopes.com or other urban legend sites. It takes only a few of these “Oprah said so; it must be true” people who have been enabled by simple blogging technologies to result in a search results monopolized by lies; the devastating effect of which does not require rocket science to assess. I have had extensive personal experiences with an antagonist who has relentlessly attacked me physically, emotionally, financially and publicly. The internet has been the most damaging venue 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 they found my antagonist’s $4 a month “godaddy” website 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 website” and withdrew. Naturally, the more absurd the assertions in a libelous website the less likely an 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 like the Oprah disciples or who forward chain emails without checking for authenticity, then I am afraid you will likely become the proverbial untouchable. 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. 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 offending website; when she had finished she stopped short of insisting that he have nothing to do with me. Thankfully my friend of over 10 years was a witness to many of the events on which the tales were spun and he was able to assuage her fears. Take the High road, the Low road or the Futile road? Litigation - The Futile Road (and expensive) I have taken action in the civil courts and am still seeking relief; I am beginning to realize that the notion of “justice”, at least at the hands of man is just a warm a 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, but I do 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. 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 have 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. 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. Basic Requirements of a Defamation Case: A defamation plaintiff must usually establish the following elements to recover:
“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 more handle the growing number of Internet libel cases. At the same time, strong consideration should be made of having an international methodology of handling Internet libel cases. Forum shopping problems and the worldly nature of the Internet may make an international approach the most realistic solution.” [Reference] The Low Road 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 leave 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. 2st 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 republishers of information, I found that in every case except one, 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 become without excuse, so to speak. In the future we’ll try and make some templates available with all the right words for victims to use. Any attorney who wishes to contribute, please do so, we’ll naturally give credit where due. 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 searchers will visit that site. [Reference] 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. A prudent OLIMIRE strategy will include profile pages for key personnel on the corporate website. These may be inconspicuous but they cannot be orphaned. In other words they need to be linked somehow to the outside world in a way that search engines can index them. Profiles should also be posted on other sites such as community and professional organizations, blogs, forums and the like. By expounding on the positive and noble aspects of the individual, the OLIMIRE strategist will somewhat mitigate the effects of future smear campaigns by diluting the libelous search engine results with accurate biographies and accounts. Even if the libel cannot be immediately removed or diluted from high rankings, at least there will be some balance. Unfortunately, many believe that “where there is smoke there is fire”, so it is best to have the libel removed as soon as possible. In the case where there is substance to the claims about a scandal, the organization can quickly modify the preexisting profile page for the individual to "distance" itself from the person by announcing resignations, dismissals etc. 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 accused of child abuse, fraud, theft 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 and many serious criminal and civil offences, 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” (or her). 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 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 have basis in fact, it is in fact a good thing. I am sure many crimes have been averted due to the dissemination of information about a convicted child molester who has moved into a new community, for example. It appears at this time that the adage “you can’t make an omelet without breaking some eggs” applies. Immediate action: There are a few things I would suggest to anyone with a long working life ahead of them with respect to their personal OLIMIRE strategy:
Conclusion So what can be done to protect the good eggs -- those innocent victims of libel caught up in the collateral damage of the Google omelet? Apart from what I am suggesting herein, I don’t really know. Maybe some type of expedited legal mechanism that allows for short term injunctions pending more thorough evidentiary hearings? We must tread carefully; had I not personally been a victim I would wave the 1st Amendment banner fervently; how do we balance freedom of speech with doing what is right and just? Invitation At this time I would like to invite submissions from anyone who has something productive to say. Attorneys willing to provide free template notices such as “cease & desist” and “Notice of Libel Offense” are encouraged to contribute. 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
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