Law Times

Page 10 April 25, 2016 • lAw Times www.lawtimesnews.com Different methods used to combat issue Lawyers grapple with online defamation BY MICHAEL MCKIERNAN For Law Times N obody likes a bad on- line review, but lawyers tend to be more sensi- tive than most, accord- ing to Lucas Litwiniuk. Litwiniuk is one of the co- founders of Kabuk, an online directory designed to connect consumers and small businesses in need of legal services to law- yers with the right set of expertise to help. The service also allows veri- fied clients to give feedback on their experience for the benefit of future users making a decision on their legal providers, an idea that strikes fear into the hearts of some lawyers on the web site, Lit- winiuk says. "Lawyers depend heavily on their reputation, so it's a real con- cern to them whenever it is chal- lenged," he says. Still, Litwiniuk says the pub- lic nature of the dialogue tends to keep things courteous when lawyers respond to complaints about their service, since most re- alize the nature of their reaction can have its own impact on their reputation. "If someone says something negative, of course they can get very upset," he says. "But it tends to be a very lawyerly, professional interaction. If things go off the rails, that can cause more dam- age." Unfortunately, not every cor- ner of the Internet is as civilized as Kabuk, according to Maanit Zemel, the founder of MTZ Law, a firm with a focus on Internet law, including online defamation. "I think lawyers are just as much the target of online defa- mation as any other type of busi- ness, simply because of the feel- ing people have that they can say anything with the cloud of ano- nymity granted by the Internet," she says. "Whether it's bad re- views or something more serious, like direct personal attacks, they can have a perception that they will never be found out, which is not necessarily true. "I always tell my clients that the most effective way to get it removed is to take steps to iden- tify the person. Once they under- stand that you know who they are and that they could face legal consequences, the result is usu- ally that they go away. That's the psychology of the Internet," Ze- mel adds. John Simpson feels lucky nev- er to have been the target of an online attack on his brand, espe- cially given the growing popular- ity of gripe sites such as the noto- rious RipoffReport.com, which have made it easier than ever to sound off in public about busi- nesses and their employees. Simpson, the founder of in- tellectual property and new me- dia law boutique Shift Law, has also had plenty of opportunities to see the fallout close-up, hav- ing helped a number of lawyers deal with their own cyber-libel episodes. He says the way lawyers respond in such cases is often complicated when the alleged de- famatory material comes from a disgruntled former client. "It's particularly troublesome for lawyers if and when they are the subject of these attacks, be- cause of our obligations to our clients. In many cases, businesses can just strike back, but for law- yers it's not that simple. You can't retaliate," he says. Simpson says formal legal action is often a serious option, and depending on the nature of the posts, causes of action could include libel or injurious false- hood. However, this option does not come without its own risks, he says. "It is possible that suing them is going to inf lame the situation," he says. Zemel says she encourages her clients to consult a public rela- tions expert in order to develop a strategy for tackling the problem before leaping in with a demand letter. "There are quite a few things to consider. You want to think about how serious the defama- tion is, and where it is appearing. If it's on some obscure blog that's on your second page of Google results, then it's probably best to just let it go, because it's unlikely to be found by anyone," she says. An overzealous threat written in legalese can antagonize a moti- vated online complainant, and it may even result in a lawyer going viral for all the wrong reasons, Zemel says. "If you're sending something as a bullying tactic, it can easily backfire, because it could be per- ceived as an attempt to stif le le- gitimate freedom of expression," she says. "There have been cases where people feel empowered by a legal threat, and will post the letter itself. If it's picked up by traditional media, suddenly one little negative review among many is highlighted for everyone to see." The public relations approach can prove a difficult balancing act in cases where the defamation is particularly serious or promi- nent online, making it more dif- ficult to ignore, says Zemel. In those cases, she says lawyers can look to the web site hosting the material. Canadian-based web sites are far more likely to be amenable to takedown requests than their American counterparts, since caselaw in this country suggests that a host can face liability for defamatory material once it has been brought to their attention, Zemel says. "Some American web sites are more likely to comply with a request to remove material than others, depending on their poli- cies or whether they have a pres- ence in Canada, but it's voluntary for them," she says. LT FOCUS John Simpson says formal legal action can be a serious option for lawyers who are attacked online. 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