I answer this week's submitted legal video marketing question: "Is it legal for someone to make a video to purposely ruin a company or person's business reputation?" For this one, I bring in my attorney and a well known online reputation expert. If you are the instigator or recipient of such a video, you should know how to best handle and protect yourself, legally and professionally.
This question was submitted to me by a search engine marketing colleague and friend. Basically the gist of the story is this: business and personal life creating an unnatural mix. When the business dealings went sour (including some layoffs), the offended party decided they would perennially put out videos (along with websites, blogs, and social networking sites) attacking the professional and personal credibility of my colleague and some of her own business associates (and even going so far as manufacturing conspiracy theories about them around their whole industry).
According to my colleague, this type of activity has been going on intermittently for the past 2 years, and has started up again. "I had gotten a lawyer and am told that until she threatens my life, I have no legal recourse." She confided with me. "So, with video being hot and she being back, I await her latest onslaught and wonder what defense I, or the other women, have.”
Defamation and Libel law
What is being talked about here centers around the legal issue of defamation. According to ExpertLaw.com, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. The type of defamation my colleague refers to could also fall under libel, which involves making defamatory statements in a fixed medium.
Traditionally, libel would refer to the printed medium, such as a magazine or a newspaper. But since what is on the Web is considered of a fixed nature (meaning that what's put out on the Web can be left there indefinitely), unless it's of a non-capture live-streaming activity, defamation involving most any activity on the Web would likely constitute libel. (A related defamation charge is "slander" – which is a transitory, oral or other spoken representation that has not been "preserved" in some kind of fixed medium.)
What's important to understand is that defamation/libel by U.S. legal standards is not always judged on the basis of a malicious publication and harm to the affected party. It needs to also meet the legal criteria that it's simply untrue. Now if something defamatory can be argued as having some basis in fact (or circumstances that would lead a reasonable person to assume something as factual), then it really becomes a gray area of how much of the original facts or circumstances may or may not have been distorted.
So while whatever the motive may have been for someone to publish a video online to purposefully ruin a company or person's reputation, motive itself doesn't automatically meet the criteria for what constitutes defamation.
Why Online Video is Ripe with Defamation
This should be obvious to video marketers. Web video is not like a television advertisement or billboard you can just take down. Once you publish a video online, its available for everyone to see and share – everywhere. If you're putting up a video on YouTube or any other video sharing site or social networking site –the video can easily proliferate within related search results and being disseminated across the Web. Any damage that may have been done might continue on and take a new shape entirely, even if it is countered with proactive marketing or legal recourse.
Defamation of Private Persons vs. Public Figures
I asked my attorney colleague, Mark J. Rosenberg of Sills & Cummis P.C., to weigh in on this issue. He brought up an interesting point that how much you choose to put yourself in the public eye may also affect the legal recourse from what someone else says against you in a video that you may consider to be defamatory.
On the flip side, if you are considered to be a private person as opposed to being a public figure, "recklessness is not required." He says. "Instead, all that is needed is that the speaker acted negligently with respect to the truth, i.e. unreasonably under the circumstances.”
So what that means is that if you consider yourself to be public figure (such as doing journalism or publicity under your published name), and someone is putting out untruthful videos against you that may be negatively affecting your business reputation (or your ability to do business per se), then you may saddled with the additional burden of proving that the other party engaged in "reckless" behavior with the video – content, publication, dissemination, etc...
What Exactly is "Reckless Behavior?”
What constitutes reckless behavior is not exactly a definitive thing to prove, and needs to be taken on a case-by-case basis. However, I would argue that if the instigating party repeats the behavior and shows a pattern of becoming more erratic with their video activity, that can serve well as evidence for reckless behavior. (Even how the party presents themselves on camera can be used as evidence against them.)
Why Defamation Charges Involving Online Video can be Tricky
So I followed up with my attorney on a related question: do actual damages need to be shown for a case of defamation to be filed? Or is it just the potential for defamation that can be argued?
"Typically, if the defamation is what is termed defamation per se, damages are not required" as grounds for a lawsuit, he says. "Defamation per se involves a false statement regarding having a loathsome disease, sexual misconduct or commission of a crime." This can also speak to making false accusations about someone else's business conduct, which can very easily disseminate online and cause that person problems with existing contacts as well as future ones.
Now this is where it gets even trickier. Defamation law varies from state-to-state. So, say Party A in State A loads up the video to YouTube, which defames Party B who's from State B. So when a video is published online, what state's jurisdiction do you go by? The answer from Mark is that "typically, it's the state in which the action is brought.”
(Another very notable legal addition shared by Mark: A person cannot bring a lawsuit in every state that the defamatory statement is published. "To bring a lawsuit, there must be personal jurisdiction over the defendant. That requires that the defendant have minimum contact with the forum state. Without such contacts, the case will be dismissed. Also, even if the defendant has minimum contacts with the state, if neither party is located in the state, there is a good chance that the action will be transferred.)
What if You Want to Ruin Someone Else's Reputation with Video?
For a business perspective, I also posed the same question to my colleague: Internet marketing consultant expert Andy Beal, and co-author of the online reputation management book, Radically Transparent. Here's what he had to say:
"The legality of a video, intended to do harm to a business's reputation, is something that is not ever clear-cut until a judge rules on it. The laws of defamation are extremely complex –especially when it comes online reputation management.
"That leaves us to decide: is it ever ethical to create and promote a video that is designed to hurt the reputation of the business in question? Certainly, every effort should be made to try and resolve your complaint directly with a company. It could be that there was a simple misunderstanding or the company is willing to make amends for its transgression.
"If you've made every attempt to resolve this matter with the business in question, then I would suggest asking yourself the following question: Would I want a family member or friend to go through this same scenario. If the answer is no, then you can post your video on the basis that you are warning others and perhaps preventing them from suffering the same fate."
That's exactly what this guy did with the United Breaks Guitars viral video.
Andy makes an excellent point: first make every attempt to resolve the issue with the company or individual you have an issue with. Now in the case of my colleague, according to her, the other woman who put out the video on her didn't even bother to talk to her beforehand. This can especially make the other person look bad professionally and shows a certain degree of reckless behavior.
My Own Grant-Terrific Tips
Ok, I'm no attorney, and the following shouldn't be construed as professional legal advice. As someone who deals with legal issues between fellow business people and lawyers, I'd like to offer some advice that has served me well:
- Take a breath. As much of a "righteous beef" you may think you may have to call someone out on video, As angry as you may be over someone else's activities against you personally and/or professionally, allow yourself at least one day to take it all in. Don't, I repeat, DON'T instinctively react. Don't go on your webcam and say what's on your mind and publish it for everyone to see. Being emotionally charged can make for entertaining video, but you may regret it once its out there, because once it's out there you can't take it back. Whatever your intended response from doing it may actually backfire on you – drawing negative reactions to yourself, and you may actually be giving credence to whatever the offending party did to you.
- If you're going to do a negative video, make it about the subject, not about your personal vendetta. Even if you have been personally wronged, you have to convey that the issue is about something bigger than you.
- If the video is achieving prominence, consider creating your own professional video response. Again, deal with the issue in a professional manner, and clearly explain your own position. Don't get into personal attacks, and really try to avoid even calling out the individual by name. Stress the positives about yourself, your company, and the good dealings with the people you work with.
- Keep a record of everything. Any video today can be downloaded directly from YouTube or most any video sharing site, and you can even use video screen capture tools like Telestream's ScreenFlow or Ambrosia's SnapZ Pro X for Mac, or SnagIt for Windows. (Yes, there are more than just those.) You should show on what dates they were published and active, in case they may be removed by the author at some point. (Just because something may be removed in one place doesn't mean it may not show up in another place.)
- Check with legal counsel. Work with an Intellectual Property attorney who specializes in Internet law, show them your evidence, disclose your full relationship (if any) with the other party or parties, and they will be in the best position to advise you on any type of legal recourse to take.