Online Reviews v. Reputation Management - The Battle Rages On

By Jack Greiner

I have always been intrigued by the ripple effect of technology. That is, innovations almost inevitably lead to the creation of ancillary products and services. And this has been true forever. Think about the goods and services the automobile spawned. Just off the top of my head I’m thinking about gas stations, tires, windshield wipers, pine scented air fresheners. The list goes on. Think about cell phone cases, ear buds and keyboard accessories for iPads. And added to the list of services that exist because of technological advances is “reputation management.” This industry is a direct outgrowth of the online world. The 10 largest companies in this industry account for revenues in excess of $55 million. Its big business. These businesses offer consumers and businesses help in getting negative information off the Internet. In theory, it’s a worthwhile enterprise. It’s easy to feel sympathy for anyone victimized by false information racing around the Internet. And any service that helps put a stop to that is doing good work. But (there’s almost always a but, isn’t there?) as in most industries, not everyone is on the side of the angels. And some reputation management firms don’t confine their efforts to eradicating false information. Their target isn’t false information so much as negative information. And obviously the two are different. What does this mean? It means there are companies actively trying to suppress truthful, but negative reviews of businesses. And that is a service that does no one any good. The notion of overzealous reputation defenders stifling honest online debate is bad enough. It’s worse when they use unethical tactics. And according to a lawsuit recently filed in California, two lawyers have done just that. Consumer Opinion LLC, a company that owns an online review site called pissedconsumer.com contends several reputation management companies funded people willing to pretend to be the authors of anonymous negative online reviews. The two lawyers – Mark Lapham and Owen Mascott – then sued the “authors.” The complaint contends the phony authors then consented to judgments against them within days of the filing. This scheme didn’t allow the plaintiffs to collect any damages, but it did give the reputation management companies what they needed. Search engines such as Google will “de-index” Web pages (and sometimes Web sites) when presented with a court order. The consent judgments entered into by the phony defendants do the trick. By de-indexing, Google doesn’t remove the content from the Internet, but it means a person using Google won’t find it. Which is pretty much the same as removing it entirely. The case is in its early stages, but if the allegations are true, it’s a disturbing development. And while I’m not sure what the ultimate remedy is for this kind of scheme, it seems to me at a minimum courts need to be vigilant. When a complaint gets filed over an online review and resolved in less than a week, it may be a good time to ask some questions about what’s really going on. The court’s own reputation may be on the line.

No First Amendment Protection for Nursing Student's Online Threats

A federal court of Appeals recently considered the question whether a nursing school may expel a student for noting in a Facebook post that he was going to “take this electric pencil sharpener in this class and give someone a hemopneumothorax with it before to[sic] long. I might need some anger management”? The answer, as it turns out, depends on the answer to at least two additional questions. First, what is a hemopneumothorax? According to the opinion, it is a “trauma” where the lung is punctured and air and blood flood the lung cavity. As the court notes, “it is not a medical procedure.” So we can agree that the threat was not trivial. The second key question is whether the school is private or public. For a private school, the answer is easy. Of course it can expel the student. But in this case, given that the school was a public institution, the student – Craig Keefe -- had Frist Amendment rights that needed to be considered. Keefe argued that the school violated his First Amendment rights by expelling him based on his Facebook posts. And he adopted an interesting strategy. Rather than argue that his words in context did not constitute a true threat, he contended that the school could not discipline him at all because the speech was published outside of class and was unrelated to any course assignments or requirements. So it really didn’t matter what he said, given where and when he said it. The court was unmoved. As a factual matter, it simply disagreed with Keefe’s assertion that the speech did not relate to his course work. As the court noted, “the . . . record conclusively established that the posts were directed at classmates, involved their conduct in the Nursing Program, and included a physical threat related to their medical studies.” Litigants who can’t get their facts straight frequently fare poorly. Keefe was no exception. But beyond that issue, the Appellate Court found that an academic program – even one at a public institution – has the right to impose and enforce standards of conduct. And the school has a vested educational interest in maintaining those standards through disciplinary proceedings. Keefe not only violated those standards by posting the threat, he apparently demonstrated no remorse and little understanding of the seriousness of his actions. His defiant response likely did not help his case. It no doubt raised questions about his bedside manner as well. Had the school failed to enforce the standards, that inaction no doubt would have materially disrupted the school’s “legitimate pedagogical concerns.” In short, “when a university lays out a program's curriculum or class's requirements for all to see, it is the rare day when a student can exercise a First Amendment veto over them.” Perhaps Mr. Keefe should take his own advice. Anger management may indeed be in order.

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