Since we are often called about online reputation & defamation expert work, we see attorneys struggling with how to prove damages in an internet defamation case. Below is a co-authored paper by attorney Whitney Gibson and myself that may help you.
Attorneys Representing Business and Individuals Damaged on the Internet Should Consider Seeking Recovery of Cleanup Costs, Which Could Realistically Be Millions.
Chris Anderson, Ph.D. – Cyber Investigation Services, LLC
Whitney Gibson – Vorys, Sater, Seymour and Pease LLP
Increasingly, individuals and businesses are being forced to deal with significant harm caused to their reputations online, as a result of another party’s illegal acts.
In these instances, the initial act itself may be rather harmful. However, it is the nature of the internet, in which the content can spread so quickly and widely – while also potentially remaining online indefinitely – that can make these acts particularly damaging.
For instance, a person may post or share a private photograph without permission, which can result in hundreds or even thousands of derogatory comments. Other times, people submit defamatory or private information to a website such as Ripoff Report, which has a strict policy against the removal of any information posted to the website – even at the request of the author.
The publication of defamatory or private information about businesses or individuals can have a ripple-like effect, with the posting and re-posting of the information allowing it to reach larger audiences. Similarly, a defamatory newspaper article or column can spread to other websites and publications, and can potentially remain online forever, even if the newspaper were to remove the original article.
One final example is a false arrest, which can result in media attention, locally and sometimes nationally. The amount of coverage varies based on the nature of the arrest and the person who was arrested, but even a false arrest of a non-public figure or official can garner significant attention. To complicate this matter, the person’s mugshot may be published online and – notwithstanding that it was taken after an improper arrest – the photo typically will rank high in search engine results. Thus, once someone’s mugshot is online, it can also spread across the internet and cause significant harm to the person’s reputation.
As a result of these and other acts, individuals and businesses can suffer substantial damages.
The Unique Nature of Online Reputation Cases
In these situations, the removal of negative material from the internet is often impossible. If the information goes viral, the harmed party simply cannot sue every person or organization that has posted or shared the content. Further, Section 230 of the Communications Decency Act protects most “interactive” websites – such as social media websites, news websites, blogs and the aforementioned Ripoff Report – from being held liable for content provided by its users.
Since it is often difficult to prove true financial loss in these instances, many attorneys traditionally steer clear of these cases. For example, businesses may lose substantial revenues because of harmful content about them online, but proving the losses were directly a result of the content is difficult. Further, for individuals, it is also difficult to prove that they have, or they will, suffer any monetary loss.
When attorneys are not willing to take on these cases, companies and individuals may be left to cope with damaging content that is highly visible online and ranks high on major search engines, potentially forever.
One type of damage that can be quantified is the cost to attempt to restore the individual’s or business’ reputation to their pre-damaged state. A frequently employed method to accomplish this is to hire online reputation management (“ORM”) specialists to “bury” the harmful content. These professionals generate positive material (e.g. websites, blogs content and press releases) that ranks higher in search engines than the harmful negative information.
When an attorney is willing to take on this type of case and the client has used ORM techniques – and the particular defendant has the resources (or insurance) to cover the expenses – he or she should consider seeking recovery for the costs of burying the damaging content.
Case Law Supports Recovery of Clean Up Costs
Under federal and most state laws, courts have routinely held that a plaintiff is entitled to recover costs incurred in performing various forms of damage control, in response to a defendant’s false statements. See, e.g., Nellcor Puritan Bennett LLC v. Cas Med. Sys., No. 2:11-cv-15697, 2014 U.S. Dist. LEXIS 41827, *56 (E.D. Mich. Mar. 28, 2014) (“[Plaintiff] is entitled to recover the amount of money necessary to engage in a corrective advertising campaign to correct for any damage to [plaintiff’s] goodwill proved to be caused by [defendant’s wrongful acts].”); Bracco Diagnostics, Inc. v. Amersham Health, Inc., 627 F. Supp. 2d 384, 491-92 (D.N.J. 2009) (awarding plaintiff $11,376,500 in damages for corrective advertising and noting that “a plaintiff may recover costs incurred for corrective advertising and other damage control expenses incurred in response to a defendant’s wrongful conduct”); Eprova v. Gnosis S.P.A., No. 07 Civ. 5898, 2013 U.S. Dist. LEXIS 49798, *7 (S.D.N.Y. Mar. 7, 2013) (explaining that “the relief [awarded] was intended to return Plaintiff to its position prior to Defendants’ false advertising”); Sands, Taylor & Wood v. Quaker Oats Co., 34 F.3d 1340, 1343 (7th Cir. 1994) (“Corrective advertising awards … have been used to restore plaintiff’s reputation to its former level via an actual reparative advertising campaign.”) (quotation omitted).
Applying this principle, there is a strong argument that the victim of damaging content online should be able to be reimbursed by the defendant for expenses paid to an ORM firm to push the harmful information down search results on Google and other search engines.
The award of costs incurred to push false content down search rankings also conforms with the general purpose of compensatory tort damages. Tort law exists to return a plaintiff to the position he or she would have been in had a defendant not committed a particular wrongful act. See Phila. Indem. Ins. Co. v. Kohne, 181 Fed. Appx. 888, 893 (11th Cir. 2006) (“The purpose of compensatory damages in tort cases … is to restore the injured party to the position she would have occupied had the wrong not been committed.”).
This principle should be applied to permit a plaintiff to recover the costs necessary to minimize, to the extent possible, the damaging effect of false statements posted on the internet. For example, if a defendant spilled oil on a plaintiff’s property, surely the plaintiff would be entitled to recover the costs incurred to clean up the oil – even if the plaintiff was unable to demonstrate other damages with certainty, such as lost profits.
This concept has also been recognized by courts in the false advertising context. See Balance Dynamics Corp. v. Schmitt Indus., 204 F.3d 683, 691-92 (6th Cir. 2000) (“Damage control expenses must be treated differently from marketplace damages because, like an injunction, damage control is undertaken precisely to prevent such things as lost sales, lost profits, and lost goodwill. As is the case with plaintiffs seeking injunctive relief, plaintiffs engaging in damage control are still at a stage where substantial uncertainty exists as to the extent of ‘business harm’ being inflicted . . . The law should encourage quick responses and the mitigation of damage, and should not require parties to suffer an injury before trying to prevent it.”).
Evaluating the Costs of Online Reputation Damage
Indeed, the expenses of cleaning up reputational damage on the internet is often very high. Thus, many businesses and individuals often cannot afford them without forcing the defendant to pay for them through a lawsuit.
Typical costs to clean up the damage is $50,000 to $125,000 per search term. In many instances, somewhere between 20 and 60 search terms – far beyond the name of the specific person or business – need to be restored.
But due to the ever-changing search engine algorithms, damaging information can unexpectedly resurface among top search results. Most clean-up efforts, therefore, require ongoing monitoring and ongoing maintenance – and, thus, potentially ongoing costs – to insure that the harmed party’s reputation is restored permanently. In fact, it is not uncommon to see total clean-up cost estimates of $500,000 to $10,000,000.
A harmed party can typically have an expert establish cleanup expenses by looking at the damage and estimating the costs to bury the damaging content and conduct ongoing monitoring. Specifically, a harmed party should seek to the following information from an expert:
1) How far the damaging material has spread across the internet and social media;
2) The required steps to clean up the damage;
3) The estimated costs to perform this cleanup; and
4) What ongoing monitoring and corrective actions are needed going forward.
With today’s internet and social media landscape, it is now easier than ever for a person’s actions to harm another individual or a business online – and the impact is often larger. Thus, when remedying the situation becomes very costly, an attorney should make sure not to overlook the potential recovery of cleanup costs for the client.