Defamation is a dangerous game and the consequences can cost you more than money

21 Apr 2014

defamationInternet Defamation – Part 1 of ongoing series in trans-border libel – Published by ISL (for Lawyers, legal practices and other companies operating across borders)

 
You should be worried… Just one negative comment posted on the Internet could potentially cost you your reputation, destroy future business and damage your brand. That’s why it’s vital to perform regular personal and business name checks across popular search engines like Google, Yahoo, MSN and Bing. Run regular name, brand and business checks on a weekly basis.
 
If you discover defamatory postings, there are vital steps to be taken before the libelous material goes viral. First, repair your reputation. Our experts below will explain how you do this. Next pay a professional to “manage” your online presence, lastly consider legal recourse.
 
Sydney defamation attorney George Newhouse claims, “you don’t have to be named, to be defamed”. In an online video forum he states, “There are three elements to defamation. Firstly the imputations must be defamatory, in-other words there must be a statement that brings you into disrepute. You must be clearly identifiable in the statement and the statement must be published to another party.”
 
In simple terms, defamation is the publication of a statement that tends to make others think less of you, your business and/or professional standing.
 
In Australia you have just one year to bring an action against an offending party or 3-years if you can convince the appropriate court that the action could not be done within the stipulated 1-year time frame.
 
Australian courts no longer make distinction between slander or libel plus defamation laws are now standardized across all states. That happened back in 2006.
 
Aside from criminal prosecution other avenues for possible recourse can be considered, such as: defamation and breach of confidence lawsuits or torts of injurious deceit, negligent misstatements, falsehoods, misleading and deceptive conduct and other breaches of Australian Consumer Law.
 
Laws of torts apparently serve three objectives. The first seeks compensation for the victim and shifts the cost of injuries to the person or persons found legally culpable; the second seeks to curb a repeat of the injurious behaviour and the third seeks to vindicate the legal rights and interests of the victim.
 
Uniform legislation passed in 2005 restricts the right of large corporations to sue for defamation. The only corporations excluded are “not for profit” organizations and companies with less than 10 employees. Businesses can however, still sue for the tort of injurious falsehood.
 
Alana Maurushat, Academic Director of The Cyber Law and Policy Centre says, “Australia is 20-years behind in its privacy laws. As borders blur and (online) information is disseminated globally, it’s now becoming necessary for countries to play catch up and start adjusting laws to keep up with new information technologies”.
 
Australia has signed onto the: Council of Europe Convention on Cybercrime. The idea is to harmonize laws across borders so it compels Internet servers to provide appropriate information when a national or international police investigation is underway.
 
Forty countries have signed on including the UK and the US. The treaty, aimed at online offences will be ratified by Parliament in the new year. Intrigued, many legal professionals are standing by waiting to see what cases end up before Australian or international courts.
 
Back in August Attorney-General Robert McCelland told The Australian newspaper, “domestic laws will criminalize more nefarious cyber activities and give crime fighters the right modern tools”.
 
“Moreover, the nature of crime over the Internet is all too often itself an egregious abuse of fundamental rights. Issues of identity theft and espionage involving access to employee records, revealing financial and other personal information are just two examples.”
 
Critics stress the treaty will do little to prevent misuse of the Internet claiming non-European, non-English speaking countries will choose not to be signatories.
 
In reality this treaty is focused more on hardcore crime. So where does that leave you, your online reputation and business brand?
 
Michael Fertik founder of ReputationDefencer.com says “one random, idiosyncratic piece of content about you can dominate your Google results forever. It’s imperative to be proactive and if you don’t have the time to do the necessary footwork, hire a company that will monitor and repair your online reputation for you”.
 
For those of you who don’t know, defamation on the Internet falls under the Digital Millennium Copyright Act and requires ISPs to act upon receipt of a DMCA notice. These are issued for various complaints including copyright infringement and defamation on the Internet.
 
Ken Gamble, Chairman of: Internet Fraud Watchdog – specializes in Internet reputation and brand protection. He says, “Internet defamation is a massive problem, but law suits can remove postings”.
 
“Each hosting company has different policies, but when a DMCA (Digital Millennium Copyright Act) notice is issued, it compels most hosting companies to remove the offending material. If the material is against a hosting company’s acceptable policy they may even take down the website.”
 
Known as one of the best “digital reputation minders” in the world, Gamble took on Facebook recently and won. The problem started after a company director discovered a defamatory posting about her on Facebook. The business owner knew the material could go viral so she contacted Gamble. Internet Fraud Watchdog went straight into damage control issuing the Internet giant with a DMCA notice and the defamatory posting went away.
 
“We respond to all defamatory comments and use all our methods and expertise to have the material removed from the Internet.”
 
“Internet Fraud Watchdog charges as little as $600,00 to shut down a website while “online reputation management packages” go from about $5000,00 per month.”
 
The heavy hitter company is also contracted by blue chip companies to protect their “brand”. This means everything associated with the corporation from its: name, term, sign, trademark, slogan, symbol and design. Depending on the reach of the company “branding protection packages” start at $20,000 monthly.
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