The Cease and Desist

lawyer_joke_accounting_cartoon

If you’ve been in business for very long, there’s a good chance you’ve received what I call an “eat s%@#” letter from a lawyer. These are commonly referred to as “cease and desist” letters and are designed to serve two functions:

  • Intimidate the other side in an effort to get them to stop doing something; and,
  • Put the other side on notice that if the bad behavior persists, they could get sued.

Cease and desist letters are commonly used by network marketing companies when distributors are raiding the downline.  I’ve sent dozens of these letters to disgruntled distributors on behalf of companies, usually with a bit of discomfort while hoping the information I’m fed is accurate.  This is my litmus test I explain to clients before sending a C&D: if they’re willing to spend the money to sue the other party if the letter is ignored, I’ll send it. Otherwise, I’m not interested in allowing a client to take a gamble with my credentials.  I’m not a fan of sending hollow threats.  When someone sees a C&D on Thompson Burton letterhead, it needs to be known that we follow up, otherwise C&Ds are meaningless.

Negative Online Commentary

Negative online commentary is the cost of doing business. If you’re doing anything meaningful, there’s going to be some skeptical people. And if you’re doing something shady, there’s going to be a lot of skeptical people, some of whom will choose to write an article about you or your business. It’s the nature of the internet. We all have the power to publish content at the push of a few keys. While I have several thoughts on how companies should deal with negative online articles, I’m going to focus instead on what they should NOT do: have their lawyers send Cease and Desist letters.

In all of my years seeing online publishers post negative commentary about companies here and there, I have never once seen an author actually heed the C&D (hey, that rhymes). Troy Dooly gets them. BusinessForHome gets them. And now we can add Oz over at BehindMLM to the list. Oz was recently sent a C&D regarding his review about “BidsForMyMeds.” And what was the result? The article was not pulled down. On the contrary, Oz dedicated another article to the business and made the poor lawyer famous. Unless a company is willing to defend itself publicly on a platform it does not control, it should always lead with a hand shake instead of a handgun. Be proactive instead of reactive. I have yet to see an instance where an online author posts blatant lies about a company or person. In that scenario, it might make sense to throw a punch. In nearly all cases, the authors are providing their opinions. As biased as those opinions might be, they’re still opinions and given broad protections under the First Amendment.

Scope of the First Amendment

When you’re thinking about calling your lawyer to send one of these nasty-grams to an online meanie, it’s important to understand the limits of First Amendment protections. Below, I’ve inserted some notes from one my talks a few years ago with respect to the First Amendment and blogging. Bottom line: save the Cease and Desist for those occasions when the damages are real, you’re justified and you’re fully prepared to go the distance. Otherwise, throw water on the fire instead of gasoline by reaching out human-to-human and engaging in a conversation. Keep your emotions under control.

If you’ve received a C&D, how did you handle it?

Beginning of my notes

DEFAMATION

A statement is defamatory if it “tends to injure the plaintiff’s reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation.” Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 573 (Minn. 1987).
The defendant must have known or should have known that the communication was false. The statement must also have been a statement of fact.

Defamation Per se

Some statements are so defamatory that they are considered defamation per se; and the plaintiff need not prove that the statements harmed his reputation. The classic examples of defamation per se are allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease.

What Constitutes Injury to Reputation?

The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982).

Libel-proof plaintiffs

Some plaintiffs have such poor reputations to begin with, they are considered “libel- proof.” A plaintiff is “libel-proof” when his reputation has been irreparably stained by prior publications. At the point the challenged statements are published, then, plaintiff’s reputation is already so damaged that a plaintiff cannot recover more than nominal damages for subsequent defamatory statements. Marcone v. Penthouse Int’l Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985).

Defenses to Defamation

Truth is an absolute defense.

If the communication is designed as a parody where a reasonable audience would not confuse it as factual, it is not actionable. Falwell v. Hustler Magazine. In Falwell, the Supreme Court held, “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.”

In the mid-80s, Hustler magazine printed a satirical advertisement talking about Jerry Falwell’s “first time” with liquor. The advertisement was a play on words that made it seem like Jerry was talking about his “first time” with his mother. Since the advertisement was clearly a parody and one where a reasonable audience would know that the statements were not factual, Jerry Falwell lost his lawsuit.

“Actual Malice”

If the Plaintiff is considered a Public Official or Public Figure, they have to prove that the Defendant acted with malicious intent to harm the Plaintiff. It’s an extra element that makes it more difficult for public figures to file suit against their detractors.

What’s a Public Figure/Official

In general, Public Officials are individuals that hold public office while public figures are individuals that are in the forefront of particular issues.

Large, publicly traded companies are typically treated as “public figures” for purposes of First Amendment cases. If a citizen lashes out at Comcast and communicates false statements. Comcast would have the additional burden of proving that the individual acted with malicious intent to harm the company.

Opinion defenses

The First Amendment protects statements of opinion, as distinct from statements of fact, against claims of defamation. A statement is an opinion when:

(1) the statement is genuinely believed; and
(2) that there is a reasonable basis for that belief; and
(3) that the speaker is not aware of any undisclosed facts tending to undermine the accuracy of the statement.

Prefacing a sentence with “in my opinion” is not always the cure. Statements of opinions can be actionable when one of the above factors is absent.

— end notes –

  • http://momofactor.com/ Jonathan Gilliam

    Another great article KT! Our reputation defense team similarly serves
    at the front end of a company’s need to “do something” to combat online
    Meanies. Lawsuits as you know are often just too distracting, involved and
    expensive for some CEOs.

    The good news is, companies CAN
    defend themselves, often without the Meanie even knowing, via online
    suppression strategies. Though several of the sites frequented by Meanies such as RipOffReport.com or Scam.com can be very damaging due to their ability to rank in search
    engines, the search engine *itself* is the route to victory.

    In
    short, if the offending page doesn’t rank on Google, it doesn’t really
    matter. It’s the same as if two people are talking trash in a corner of a
    crowded stadium. No one really hears them; however give them the
    announcer’s microphone and suddenly everyone hears. The search engines are the
    mic — and companies can actually influence who has access to it.

    Companies have the power to defend themselves against these attacks, with the right experts and experienced approach.

    Jonathan Gilliam
    http://www.MomoFactor.com

    • kschang

      So what happens when it’s not just “meanies”, but real analysis of potential fraud? What if it’s actual news of embarrassing choices?

      Do you just SEO some stuff to crowd out the “negative info”?

      Let’s say one of your clients just found that he hired a felon. Do you go after sites that reported such?

      or do you hope that you never run into a client like that?

      • Kevin Thompson

        kschang, I used to be a purist that believed that the search results were an accurate reflection of a company’s brand. With that mentality, I took a “don’t be a jerk” approach to SEO i.e. operate a clean business and the search engines will treat you favorably. But negative articles always rank higher than positive; thus, it’s not really a fair representation of a company’s brand. If there’s a sea of negative, I get it. It’s a bad business. But if there’s both good and bad and the good search results are buried on page 3, the company needs to get serious about SEO.

        • kschang

          But isn’t the “bad reflection of search results” a result of SEO efforts?

          If so, isn’t that more like “sinking to their level”?

          The American “mainstream media” have focused on negative news because those sells papers. But I have not found the same to be online.

          Given the fact that people can put up shill reviews (which are generally positive, except for some cases where people plant fake negative reviews about competitors, like that lawfirm Yelp sued) and reputation managers will attempt to “manage” negative reviews, I personally think that negative reviews would “reveal” more than a positive review (which can be influenced by expectations, placebo effect, sunk cost, and so on).

          Having been on the receiving end of a badly managed “reputation defender”, perhaps I am a biased against people in the business.

          Frankly, everybody should practice “due diligence”, even in testimonials. Remember, one can BUY fake testimonials on Fiverr for $5.00.

          • Kevin Thompson

            The “reputation defender” that were alluding to in your comment sank to such incredible lows in his quest to make money in the aftermath of Zeek, he doesn’t deserve to be mentioned in the same sentence as normal SEO professionals.

            Negative articles rank higher, period. In a perfect world, positive stories will dramatically outweigh the negative (which is what Karen was mentioning below). But when it’s an even fight, a company might sink some cash into some SEO stuff. Is it shady? I don’t think so. And if the company’s reputation is so bad, there’s not much an SEO expert can do to help.

      • http://momofactor.com/ Jonathan Gilliam

        kschang,
        If the clients engages us we take a strategic approach to clean up the search results using a variety of tactics, not just SEO. Our job is to male page 1 (and 2, hopefully) completely neutral or positive.

    • Kevin Thompson

      Thanks for the comment, Gill-um;) I agree that suppression strategies are important when there’s a mess. Unfortunately, negative articles rank higher than positive because there’s more engagement / emotion; thus, justifying the SEO strategies. I know your company does a great job with search engine work.

      • http://momofactor.com/ Jonathan Gilliam

        It’s Gill-eee-um! ha Our firm has actually had recent success actually “de-ranking” individual negative links, directly. Not sure how long that will last but we’ve got some pretty happy clients on that one.

        I must say you sir are pretty darn knowledgeable about SEO, for a lawyer that is ;)

  • http://www.mybusinesspresence.com/ Karen Clark | @MyBizPresence

    Another tactic to help in these situations is to be sure to train your existing field representatives in strategies to build their own ethical online presence within your company’s guidelines, such as a Facebook Page, a personal blog, or other social media profiles. Imagine if you had 100s, 1000s or multi-1000s out there creating doorways into your company online that are positive reflections of your brand. The meanies wouldn’t have a chance. Just another perspective. :)

    • Guest

      Another great article, Kevin, I have recently been down this path, and replied almost verbatim to this article. Specifically, I used the Opinion Defense, It’s like GMTA, :)

      • Kevin Thompson

        I’m glad you found it helpful. And thanks for teaching me “GMTA”;) I had to search for that one.

    • Kevin Thompson

      This makes sense. It would be hard for negative articles to show up if the field were sharing good links like crazy.

  • http://asdupdates.com/wordpress ASDUpdates

    Another great article, Kevin. I have recently used the Opinion Defense.. :) I found this online:

    The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, you can safely state your opinion that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject’s feelings or diminish their reputations. Such terms represent what is called “pure opinions” because they can’t be proven true or false. As a result, they cannot form the basis for a defamation claim.

    • Kevin Thompson

      I like the quote! Thanks for sharing. I’ve added it to my First Amendment notes.