Legal

Fighting Defamation

What to do when the online mob comes for you

by Robert Feinberg and Ian Joyce

Robert Feinberg is a partner at Snell & Wilmer. A criminal defense attorney in Phoenix, he is part of the firm’s Special Litigation and Compliance Group. He has a broadbased litigation and trial practice. Feinberg conducts internal corporate investigations, identifying issues and formulating front-line tactical response plans to address alleged workplace misconduct.

Ian Joyce is an associate in Snell & Wilmer’s special litigation and compliance group who focuses his practice on constitutional litigation. He has represented government entities in connection with procedural and substantive due process, equal protection, and takings issues, among other things. Ian also has experience advising clients on matters related to the First Amendment, including defamation. swlaw.com

Imagine Googling your name to find that you’ve been hijacked by a computer-savvy foe, who has cleverly labeled you a convicted sex offender, drug dealer or even worse. Rather than your usual business picture and bio, what pops up is completely false — the most damaging, horrific and graphic portrayal — and threatens to destroy your business and reputation and livelihood; indeed, your entire life. Query: What do you do about it? What can you do? This article will identify and examine this growing problem and provide some practical guidance if you should find yourself ensnared by it.

While the above scenario is all too real, varying degrees of false information spread happens every day, and managing one’s reputation, business and personal interests can be challenging. It is becoming all too common for people to make false statements — often anonymously — about businesses or professionals in online forums, on social media, posted to consumer review sites and by blogging. Seen at a glance by a wide audience, the damage can spread like a cancer, informing potential customers, business associates and friends and family.

A multidisciplinary response may be required in the face of such a crisis. Consider carefully evaluating the manner, type, and scope of the harm ; and formulating a game plan to quash it.

IDENTIFY THE WEBSITES AND INDIVIDUAL(S) BEHIND THE DEFAMATION

Identifying the scope of what specifically has been said about a person and where the statements are located is typically straightforward. Finding out who has made them often requires time, money and resources.

While a cursory investigation may reveal the poster’s identity, most often the bad actor goes to great lengths to hide. A suspicion may exist as to identity, but hard evidence typically needs to be gathered. Legal counsel can lead the charge, using a team of other professionals to get to the bottom of what is happening. For example, counsel can coordinate with private investigators, computer and forensic experts, law enforcement and others.

A “John Doe” lawsuit, may be appropriate under certain circumstances, which might possibly serve to provide legal authority to subpoena a host website, blog or other venue for the poster’s identity. Some websites that otherwise have no problem with identifying anonymous posters will not do so unless first required by court order [e.g., Matter of Cohen v. Google, 25 Misc. 3d 945, 946 n. 1 (N.Y. Sup. Ct.. 2009)].

EVALUATE POTENTIAL LEGAL CLAIMS

Once the investigation reveals the details surrounding the “what” “where” and “who,” legal counsel has tools to try to stop the bleeding and bandage up the damage. A simple cease and desist letter may prove helpful. Sometimes the threat of litigation can result in a takedown and/or retraction of the bogus material. A full-blown lawsuit for injunctive relief and/or money damages may also be an option, depending on the circumstances.

As a preliminary matter, any response to false or harmful online speech is inherently limited by Section 230 of the Communications Decency Act (47 U.S.C. § 230). In layman’s terms, Section 230 generally prohibits websites from being held liable as a “publisher” for content posted by third parties. In practice, Section 230 immunizes from defamation liability websites that simply host content but do not create or edit content. Because many defamatory statements will be on passive websites, Section 230 essentially forces any legal response to defamation to focus on individuals.

Common claims against individuals include those discussed below:

Defamation: The most versatile legal tool to combat false online speech is defamation. Traditionally, a defamation claim requires the victim to show that another person made: (1) a false and defamatory statement concerning the victim; (2) to a third party; (3) which caused damage. Depending on the nature of the defamatory statement, the identity of the victim and the jurisdiction, a victim may also need to show that the statement was made with “actual malice,” that is, knowledge that the statement was false.

Because the range of conduct it covers is so broad, defamation is a strong tool. But it does suffer some defects. As stated, the actual websites that host defamation are likely immune from a defamation claim under Section 230. Further, a defamation claimant must show some harm, which can be a significant stumbling block. Nonetheless, defamation remains a viable legal claim to counter all types of online vitriol.

Digital Millennial Copyright Act: If a defamatory post also infringes on a copyright, the DMCA’s notice and takedown procedure may also be of value. As the name of the procedure implies, under the DCMA, a copyright holder can send a notice to a “service provider” (including internet service providers, websites and search engines) demanding that the provider remove any infringing material.

There are two advantages to this approach. First, DMCA takedown notices are cheap and often effective — if a provider takes the infringing material, it is immune from further copyright liability [17 U.S.C. § 512(c)(1)]. Second down, DMCA takedown notices can be sent directly to service providers, thus removing the inefficiencies created by Section 230 Immunity.

The obvious drawback to the DMCA is that it only covers copyright infringement. But even then, copyright protections apply to a very broad set of material and DMCA takedown notices can be used even if the infringed material is not registered with the Copyright Office [17 U.S.C. § 408(a)]. Thus, the DMCA notice and takedown procedure is potentially applicable in a number of scenarios that are not immediately obvious. For example, if a defamatory post includes a picture from the target’s website, the DMCA may apply.

Criminal Statutes: Federal law and several states explicitly prohibit online harassment. While these statutes vary considerably across the country, they generally prohibit individuals from sending unsolicited communications with the intent to make the recipient feel threatened, harassed, annoyed, alarmed, or otherwise harmed [e.g., 18 U.S.C. § 2261A(2); Cal. Penal Code § 653.2; A.R.S. § 13-2921]. Thus, cyber harassment statutes are potentially helpful to individuals who are being harassed.

A tactic sometimes employed by online criminals is to impersonate a victim online, and then make fraudulent posts for the purpose of embarrassing, defrauding or otherwise harming the victim. Some states, including very large ones like Texas, New York and California, have statutes specifically outlawing this type of behavior [e.g., Texas Penal Code Ann. § 33.07(a)(1)-(2); New York Penal Law § 190.25(4); California Penal Code § 528.5]. But even if the victim’s state of residence does not have a specific online impersonation statue, similar behavior may be prohibited by the relevant identity fraud statute.

Certainly, this is not an exhaustive list of legal options, but it is helpful to know that options are available to try to prevent, remove or mitigate online defamation. Whatever option is best for a given situation will vary.

OTHER OPTIONS

Some websites have quasi-dispute resolution services, or other ways to “flag” defamatory and harmful content. While this option is relatively inexpensive, the efficacy of relying on this is questionable. Because websites generally enjoy immunity from liability, it may be a challenge to convince them to remove defamatory posts. Moreover, convincing a website to remove harmful posts does not stop an individual from making future defamatory statements.

Another option is to wage a counter-marketing campaign with the goal of drowning out any negative posts. For businesses with larger marketing budgets, this option may be the most efficient means to counteract online defamation.

The approach best for an individual person or business will depend on the context, and each situation should be evaluated in a thoughtful and individualized manner.

IMPORTANCE OF PLANET

The Ak-Chin Indian Community has deep roots in farming and agriculture. Protecting and sustaining the land, air and water is part of the fabric of the Community. Harrah’s Entertainment takes that pledge seriously. Through Harrah’s enterprisewide Code Green program, the Ak-Chin community is empowered to continue its longstanding commitment to sustainability.

Code Green’s sustainability programs are focused on reducing the property’s carbon footprint and its energy and water consumption, and recycling. Through these efforts, Harrah’s Ak-Chin Casino supports civic programs vital to the Maricopa community’s success, including organizations involved with education, children and families, adults, the environment, healthcare, and the arts.

Tyler Butler is the head of Corporate Responsibility for Aventiv Technologies, where she leads programs that positively impact society. She is also founder and principal of 11Eleven Consulting and is often cited as a subjectmatter expert by Forbes, SHRM, Entrepreneur, U.S. News and World Report and more. 11elevenconsulting.com

Harrah’s Ak-Chin, a Community HERO

Founded on the importance of People – Planet – Play

by Tyler Butler

People. Planet. Play. Service to these fundamentals is integral in the long-standing traditions and culture of the AkChin Indian Community, which has a commitment to preserve and impact not only the tribal community but neighboring communities in a positive way. So, when the U.S. Congress passed the Indian Gaming Regulatory Act (IGRA) in 1988, the Ak-Chin Indian Community recognized the potential benefits to tribes and the opportunity to build a business while aiding society.

Ak-Chin was strategic in deciding how to go about launching these endeavors, looking to Harrah’s, a part of Caesars entertainment. This established, respected entertainment brand joined as their management partner and, together, Harrah’s and the tribal leaders built a successful gaming enterprise. This alliance provided an opportunity for economic self-sufficiency and secure financial resources to invest in infrastructure and social services programs for the community.

“We chose to partner with Harrah’s, part of Caesars Entertainment, in part because of their long and successful history managing quality gaming and entertainment venues, but also their commitment to work alongside our tribal leaders and invest with us were deciding factors,” says Ak-Chin Indian Community Chairman Robert Miguel. “And now, more than 25 years later, we continue to reap the benefits of this very successful partnership.”

Harrah’s Ak-Chin Casino places great importance on corporate social responsibility and, along with the other Caesars Entertainment brands, places an emphasis on a diverse workplace that provides opportunities for professional growth, a commitment to the community through acts of service and financial support, and an environmentally responsible operation as well as an economic impact that is felt throughout the region. From the beginning, corporate social responsibility has been at the core of the casino’s business.

The partnership’s most successful social impact campaign could be its Harrah’s Ak-Chin Casino HERO Program. The goal of HERO is to strengthen organizations and programs in the communities where employees and their families live and work. The employee-based volunteer program enables Harrah’s staff and their families to make noteworthy and visible contributions to the community by donating their time, skills, expertise and compassion to dozens of volunteer projects throughout the community.

In addition, the HERO Committee funnels in-kind and monetary donations into the community. In 2020 alone, the committee gave $50,000 to worthy causes.

Volunteerism is at the core of a lot of these efforts. HERO volunteers work tirelessly throughout the year, providing hands-on experiences for Harrah’s team members. This work has afforded the company the honor of being included in the Civic 50 as one of the country’s most community-minded companies. To achieve its PEOPLE PLANET PLAY goals, team members and senior leaders alike are empowered to support their local communities.

Harrah’s Ak-Chin Casino employees are active, ongoing volunteers in the community. Despite the pandemic and decreased in-person volunteer opportunities, 90% of Harrah’s Ak-Chin Casino employees still volunteered more than 9,000 hours in 2020 to such organizations as Sun Lakes Lions Foundation, Maricopa Lions Club, Casa Grande Roller Derby, Maricopa Police Foundation, American Cancer SocietyMaricopa Relay for Life, HHHOHP Stand Down for Veterans, United Services Blood Drive, Area Agency on Aging, Pat Tillman Foundation, F.O.R. Maricopa Food Drive, Susan G. Komen Breast Cancer Foundation, Maricopa Against Abuse, United Way of Pinal County and Feed My Starving Children.

“We’re proud that we’ve established a reputation for giving back to the community,” says Harrah’s Ak-Chin Casino Senior Vice President and General Manager Michael Kintner. “I believe, and hope others agree, that our partnership with the Ak-Chin Indian Community is a proven model for how casinos can ultimately be a catalyst for positive change in a community.” This ethos, brought forth by the casino’s Code of Commitment, is the guide that governs the conduct of the organization. It is Harrah’s Ak-Chin Casino’s public pledge to guests, team members, communities, business partners and all those they reach that it will honor the trust they have placed in it. The Code outlines the robust platform of corporate governance, ethical conduct and integrity. PEOPLE PLANET PLAY is the framework underpinning the Corporate Social Responsibility strategy.

“Making Sense of the Puzzle” is the third article in Bruce Weber’s series on Change: The Provider of Opportunity “Embrace the Unknown” (In Business Magazine May 2021) “Exploring the Possibilities” (In Business Magazine June 2021)

Bruce Weber is founder and president/CEO at Weber Group. Weber brings more than 20 years of experience to the for-profit and nonprofit community, working with startup, growth and mature organizations. His focus is in strengthening organizations through strategic planning, organizational development, leadership and board development. He is a BoardSource Certified Governance trainer and a founding partner of the Nonprofit Lifecycles Institute. webergroupaz.com

Making Sense of the Puzzle

How does the business effectively vet all the new possibilities before it?

by Bruce Weber

In my previous article, exploring the possibilities, our topic was seizing the opportunities for the business to take advantage of change. In this article, we will explore the methods to evaluate the ideation that occurred as we explored the new possibilities that lie ahead. In looking for those opportunities, insights have been gathered about the business and, in the process, tons of new, fresh ideas were generated. But now, what is the next step? How does the business effectively vet all the new possibilities before it?

Idea evaluation begins with building a decision framework that provides structure around the process. Having a distinct methodology for evaluation enables efficiency and impact in making meaningful decisions. Laying the groundwork early will help positively impact a business’s decision-making process.

The first step is to remain true to the mission, vision and values. Roy Disney once said, “It’s not hard to make decisions when you know what your values are.” It is extremely important that the decisions do not conflict with the business’s values, the “why” of the business or the reason it exists.

Next, defining the decision timeframe, who will make the decision and at what different milestones, establishes clear guidance for the process. Gathering the data needed to evaluate the decision and involving those within the organization in the process enables the opportunity to move forward in a systematic manner. Finally, involving a diverse group of individuals inside the organization ensures the idea evaluation will include a diverse set of individuals.

Throughout the process, the business should encourage active participation and dialogue from all constituencies. The objective is to identify roadblocks that might sabotage the decision’s success. Calling out the risks upfront allows for their consideration in the process and perhaps the elimination of items that are not viable. However, before eliminating an idea, it’s wise to look at possible alternatives that might make that approach more palatable. And making sure everyone is value-aligned with the proposed idea versus just agreeing ensures that whatever recommendation moves forward, the organization remains true to its core values and beliefs.

MAKE THE DECISION!

Too often, after consideration, delay sets in or there is doubt about the direction or process. This is the most important time to remain true to the process and offer the chance to move the idea forward. Sometimes, building in some reflection time prior to execution will offer additional breathing room. Ultimately, the bias should be toward action, so as to not lose momentum. If there is significant uneasiness, revisit the decision framework if needed.

Finally, businesses should document the process along with the background data used in making the decision. This will ensure that future staff and leadership will understand how the organization arrived at the decision and the background used in deciding. It’s important to remember that creating impact often comes from broad visions and simple actions.

Dave Ulrich, a university professor, author and management consultant, sums it up nicely in his blog “What Do Thought Leaders Think” on the 10th Global Peter Drucker Forum: “To respond to inevitable change, we need to look forward to opportunity more than lament the discomfort of the present; learn from both failure and success and see failure as an opportunity to learn; and recognize and let go of unconscious biases that hinder change. We now accept the fact that learning is a lifelong process of keeping abreast of change. And the most pressing task is to teach people how to learn.” Let’s take Professor Ulrich’s advice and explore some new opportunities and decide to move forward on the best of them!

The Silent Killer of a CEO

by Jen Butler

C-suite execs are used to problems from employees, stalled cash flow, unexpected challenges arriving out of nowhere, and the futile attempt to maintain a balance between home life and work life. After a while, these leaders feel trapped in a never-ending cycle of whack-a-mole responses by the futility of it all. That attitude ultimately destroys both the leader and the business. It’s called “stress.”

NONE OF MY PEERS COMPLAIN OF STRESS

Even though executives experience a high level of stress, they rarely talk about it. In a group of their peers who understand on a deep level what each other goes through on a daily basis, the vulnerability it takes to share feelings of stress often holds executives back from telling how they really feel. This reinforces that stress is a weakness or fault and silence is best practice.

A Harvard Business Review article, originally written 40 years ago and which has since come to be regarded as a classic, notes that executive stress stems from: • Situations that are repetitive and prolonged; • Situations that promising great success but make attaining success difficult to impossible; • Criticism and attack; • Lack of support and resources tailored to the C-suite level; and • Situations that expose the executive to risk of attack, involve complex detail, arouse a sense of inadequacy and guilt, and leave the executive feeling exposed without support.

These stress events leave executives with an increased sense of inadequacy, guilt and insecurity.

Stress is a silent killer, and it kills with silence.

IS STRESS REALLY THAT DANGEROUS?

Stress at any level affects physiological, biological and mental systems. From high blood pressure to hormone imbalance, from digestive problems to skin conditions, and from anxiety disorders to memory loss, stress permeates its way into an executive’s daily work functions. The executive has less focus, less patience and less energy to perform at the levels needed to sustain the organization. Decision making is highly compromised and the need to lead with conflict or avoid certain situations increases exponentially.

In 2020, a group of researchers examined the historical relationship of CEO longevity to industry turndowns and regulatory stressors (“CEO Stress, Aging, and Death,” eml. berkeley.edu/~ulrike/Papers/CEO_Stress.pdf). They found that 20 years after their appointment, about 25% of CEOs died if they had had high exposure to stressful situations during their term, but those with less exposure lived an additional 10 years or more. In addition, those CEOs who had to surmount economic shocks in their industry looked one year or more older than those CEOs whose industries were unaffected.

BUT BASICALLY, STRESS IS NORMAL, RIGHT?

If most of the people an individual considers colleagues engage in the same or similar behaviors as that individual, that behavior, however destructive, is recognized and taken as normal.

When people think things are normal, it limits their ability to seek change. Instead, they view themselves as failures because they cannot handle “normal.” This attitude perpetuates the stress cycle, causing negative results in work and home life, which reinforces the idea that they are failures. Most executives do not realize they are fueling the very cycle of stress which they suffer from.

Acute stress is normal. Chronic stress leading to overwhelm and burnout is not.

MY HEALTH IS MY PROBLEM – NOT THE COMPANY’S

Executive stress is as detrimental to companies and to the executives themselves. In a recent study of U.S. senior managers (arielle.com.au/c-suite-burnout-survey-summary/), half of the respondents believed their CEO was burned out and 80% identified themselves as burned out.

Significant evidence from both mental health and medical professionals shows that stress is responsible for the loss of production and an increase in injury at the average cost of $10,000 per employee each year. According to the American Institute of Stress, costs of stress on the U.S. industry totals more than $300 billion a year in absenteeism, turnover and diminished productivity, with the median number of missed workdays from a stressed employee at 25 days a year compared to six days for the non-stressed worker.

With these seemingly insurmountable numbers, no one interested in a company’s profit margin can turn a blind eye.

HOW CAN I COPE?

Stress starts out as part of our biological systems to handle temporary situations; it was never meant to turn into a chronic psychological and mental state. Addressing stress at the biological roots first gives us the mental space we need to process situations, choose our response and take the time to think of creative solutions. Here are three proven techniques to help cope: 1. Diaphragmatically breathe. 2. Interrupt one’s internal thought pattern. 3. Increase curiosity.

Climbing the career ladder is a respected feat in society, but most make the climb without understanding their risk or what they lose along the way. Until we break this accepted culture permeating throughout companies, there will continue to be a lack of resources, support groups and catalysts for change

Jen Butler, CEO of JB Partners, is the creator of Get SMaRT – Stress Management and Resilience Training for the workplace. The SMaRT Club learning platform is the leading self-guided tool for all companies looking to reduce stress and increase profits. Butler also travels throughout the United States to provide business leaders with one-onone, onsite guidance in managing stress, turning around their business, and achieving real, longlasting results. jbpartners.com