How do you fight back against online defamation?
Legal action is sometimes limited, but there are ways of influencing search engines
A CBC Go Public story about a B.C. teacher who has been victimized for two and a half years by a cyberstalking ex-girlfriend demonstrates the inherent difficulties in removing defamatory material from the web.
"Mark Twain said a lie can make its way halfway around the world before the truth has a chance to put its shoes on, and he was speaking long before the digital age," says Karen Eltis, a law professor at the University of Ottawa. "Today, it's even more of a problem."
Eltis says that in most cases like this the victim is looking to "contain the damage." But she warns that even if you successfully sue someone, as the B.C. teacher did, it doesn't mean you'll be able to scrub the offending material from the World Wide Web.
While teaching in Malaysia several years ago, Lee David Clayworth dated a woman named Lee Ching Yan. After they broke up, the woman started posting slanderous material about him on websites, suggesting, for example, that he was a pedophile and that he was having amorous relations with his students.
He sued her in Malaysia, where she was found guilty of defamation and ordered to pay Clayworth the equivalent of $66,000 in damages. The Malaysian judge also ordered search engine providers Google, Yahoo and Bing to block Clayworth's name from being searchable.
But due to differing international interpretations of cyber-law, a Malaysian judge cannot compel a company in California to remove offensive material, and so Clayworth's name continues to come up in search engine results.
Clayworth, who now lives in Vancouver, says the online harassment continues to this day.
Search engines unwilling to 'arbitrate'
Matt Earle, president of Reputation Guard, a Toronto-based firm that helps clients improve their online standing, says that because search engines exist to index material on other sites they don’t have a mechanism for dealing with defamation.
"The reality is they won't arbitrate decisions about this," says Earle.
A better chance of getting results, Earle says, is directly approaching the sites where the offensive material is posted.
He says that sometimes, simply sending a "nice email" that explains why you feel you are being libelled is enough to compel a site to remove the material.
But Earle warns there are a number of sites, like the ones where Clayworth was defamed, "that are set up on a borderline-extortion business model." They charge money to remove defamatory material, he says.
Eltis says that sending a cease-and-desist letter to the site in question is the next obvious step, followed by the threat of legal action. But if the site is based outside of Canada, the problem becomes one of legal jurisdiction.
As Halifax internet-law expert David Fraser points out, American-based sites are subject to U.S. law, which protects freedom of expression and does not hold them responsible for content posted by their users.
It's possible to still sue them, says Eltis, but it first requires a process of determining which jurisdiction will hear the case, and that process can be drawn out and costly.
Not only that, but if a person is being libelled on numerous websites, the way that Clayworth has been, suing every single one of them might ultimately be futile unless you have the patience and the financial means to see it through.
The most immediate outlets available to individuals are social networks such as Facebook, Twitter and LinkedIn, where they can attempt to defend themselves against malicious falsehoods, says Katie Clark, a national leader for crisis and risk at Edelman Canada.
But Clark warns that engaging the issue this way might actually embolden the stalker further.
'Burying' bad content
Another PR strategy is to try to influence search engines. If a negative story is coming up in the top five search results for your name, one of the most effective strategies is to try to overwhelm the search engines with positive material about you, says Barbara Jesson, president of Jesson + Company Communications, a Toronto-based public relations firm.
For example, if you're being defamed as a criminal, you could choose to emphasize your positive achievements, such as notable career accomplishments or charitable work.
One of the ways an individual or company can influence search engine results is by publishing new and positive content in a variety of places, because search engines tend to place more recent stories higher in its search results.
Jesson says another strategy is search engine optimization (SEO), which is a tactic used by most websites of loading up their stories with the best possible search terms in order to ensure they appear at the top of search engine results.
"Our solution has often been just to bury the [bad] results, because you can't win when you're playing with someone who is irresponsible and malicious," says Jesson.
Earle says that another possibility is to address the allegations head-on by posting a statement or rebuttal on a third-party website.
Finding credible news sites
The ideal situation, Earle says, is to somehow manage to get a trustworthy news source to listen.
Most online readers are savvy enough to know the difference between an unsavoury, gossip-mongering site and a credible news source, he says.
Referring to Clayworth's story, Earle says, "People will read it and think, OK, CBC — [it has] editorial standards, quality, someone had to research it. The CBC's not just going to write anything."
But even if a spiteful story is buried online, it’s still there – and could be dug up by a potential employer doing a cursory online background check.
Clark says that if you’re applying for a job, it’s wise to acknowledge, and disavow, nasty material about you that might be on the web.
"Prospective employers are looking at information online, so if there’s information online that is disparaging or says something that you don’t want, transparency is probably always the best option," says Clark.