The Bulletproof Interview – Keith Schilling and Simon Smith on Protecting Your Online Reputation
3 November 2009
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Each week, Bulletproof Blog features exclusive interviews with thought leaders on issues of critical importance to companies and countries. This week, with online threats to corporate reputation seemingly multiplying every day, we interview Keith Schilling and Simon Smith of Schillings, one of Britain’s top law firms dedicated to safeguarding the reputations of international corporations, brands, celebrities and high-profile business people.
Experts on how the Internet has impacted defamation law in the UK and the U.S., Mr. Schilling and Mr. Smith shared their thoughts on the legal dimensions of online reputation management with Bulletproof™:
How has the rise of digital and social media impacted corporate reputation management? How can companies best protect themselves from the increased reputational risks that the Internet has introduced?
Keith Schilling and Simon Smith: The battleground for protecting corporate reputations has historically been print media as all eyes were focused on the newsstands. The Internet has changed all that as billions of people worldwide now have access to myriad social networking sites, wiki sites, and blogs. It now appears as if anyone with a computer and a camera phone can become a publisher. The age of the ‘Citizen Journalist’ and ‘Citizen Paparazzi’ is truly upon us.
This abundance of worldwide communication channels – by which a company or one of its executives can be defamed; a CEO’s privacy can be invaded; an employee can be harassed by an unknown source; an e-mail can go astray; a confidential document can be leaked; or a trademark can be infringed upon means that the threats to corporate reputations – no longer just come from adverse press coverage. Now, they include business rivals, campaigner groups, disgruntled customers, ex-employees with a grudge, or just about anyone with a computer who has something to say.
Despite a vast playing field that encourages the publication of false, offensive, and damaging comments, the Internet is not quite the untamed frontier it may appear to be. The same legal rules still apply, albeit in a mutated (and ever mutating) form. Contrary to popular belief, or fear, there is a lot that can be done to control and protect an individual’s or a company’s reputation on the Internet, using a combination of communications, legal tools, and plenty of subtle persuasion.
Are there significant differences in the ways in which U.S. and UK companies must approach online libel or defamation cases? If so, what are they?
Keith Schilling and Simon Smith: U.S. and English law in relation to libel and privacy is rooted broadly in the same common law. However, the ‘modern’ interpretation of the First Amendment to the Constitution radically altered the U.S. courts’ approach to defamation law. There are now significant differences between libel laws in the U.S. and England on such fundamental issues as privilege, fair comment, and the burden of proof on the issue of falsity.
The U.S. is strong on issues of copyright and confidential information and the U.S. courts will uphold contractual obligations of confidentiality. They will also fiercely protect copyright, which can be a useful mechanism for stopping the publication of confidential information. But English laws are much more favorable when it comes to protecting against reputational damage.
Under English law, information published on the Internet is deemed to be published in England (and so subject to English law) if an Internet user can access it from England – even if the publisher and servers are located overseas. As long as there is deemed to be a reputation worth protecting (i.e. a customer base in the UK), then action can be taken in the English courts to protect a U.S.-based company.
Unlike the U.S., English law requires the defendant to prove the truth of the allegation, not the plaintiff to disprove it. Furthermore, a ‘public figure’ plaintiff is not required to show ‘malice’ on the part of the defendant (something the publisher published knowing it was untrue or reckless), as he or she must in the U.S. Also, damage is presumed to have occurred to the plaintiff’s reputation in UK without the need to show actual loss, unlike in the U.S. Finally, the successful plaintiff in the UK libel action can recover, in addition to any damages, reimbursement of his legal costs (provided the defendant has assets which can be enforced against).
What’s next with regard to online reputation management? Are there issues emerging on the horizon that companies and high-profile individuals need to be aware of?
Keith Schilling and Simon Smith: It would be easy to run through a list of possible dangers to the corporate brand and reputation and the legal steps that can be taken to counter them. But the truth – despite what many lawyers will tell you – is that most threats should be ignored and it does more harm than good to try to counter all of them in court.
Misjudging the severity of a threat can result in massive expenditures of legal fees spent to silence a critic no one would have bothered listening to anyway. The trick is in making the right judgment call on whether to act, how to proceed, and how best to judge whether the threat is worsening over time. There is no real science to doing so. Rather, it is a case of taking into account the surrounding circumstances that give an inkling of the likelihood reputation damage being caused.
There are five factors to consider when assessing the level of risk and whether to take action: the credibility of the maker of the allegations; the audience that the initial publication enjoys; a judgment on the likelihood that the material will spread virally online and reach the mainstream media; and, of course, the type of information – or how serious an allegation is being made – and the public’s appetite for that sort of information at the time.
The point is that the legal sledgehammer has to be used judiciously, and only against threats which genuinely merit it. Sometimes, the implicit threat of the legal sanction is often more effective for the purposes of persuasion than the actual sanction itself, and allows for effective low key persuasion.
Larry Smith is Senior Vice President of Levick Strategic Communications, the nation’s top crisis communications firm, and a contributing author to Bulletproof Blog.