We live in increasingly challenging technological times which are impacting the way litigation lawyers work. This article notes several ways in which the web impacts reputation and considers practical steps which can be taken to protect it.

How the web impacts reputation

Exposure through search engines

Search engines reveal how individuals have been conducting themselves. As Thomas Friedman, author of The World is Flat, has observed, “Search engines flatten the world by eliminating all the valleys and peaks, all the walls and rocks, that people used to hide inside of, atop, behind, or under in order to mask their reputations or parts of their past. In a flat world, you can’t run, you can’t hide, and smaller rocks are turned over. Live your life honestly, because whatever you do, whatever mistakes you make, will be searchable one day.”

The direct consequence for all of us, not least litigation lawyers and their clients, is that we are more accountable. This has particular relevance to correspondence lawyers may send in disputes which can easily appear online whether permitted or not.

Network effects

The “social web” has amplified the network effects of the web, and the speed with which information can move throughout the world is already impacting the legal process.

By way of illustration, in April 2008 Judge Easy refused an injunction by Max Mosley, President of the FIA, to have a video clip of himself in a “sex den” removed from the News of the World website, stating that this would be a “futile gesture” as the video clip was already in the public domain. (The News of the World claimed 189,000 unique visitors in one day.) He reached this conclusion even though he found the material intrusive and demeaning and that there was no legitimate public interest in its further publication.

The significance is that not only can bad news spread fast, but also this can itself be a factor in what stance the judiciary is going to take.

Concerted attacks

Bloggers and individuals within chat room forums have demonstrated the power of those platforms as a means to attack individuals and companies and damage their reputations.

For example, bloggers, using Jeff Jarvis’s catchphrase “Dell Hell”, have collaboratively spread negative comment about Dell’s customer service, weakening Dell’s reputation in just the area where it used to be so strong.

In the legal world too, it is now potentially easy for an individual to make a nuisance of him or herself to an organisation and to a client.

Practical steps to protect reputation

Against such a background, what are the practical steps litigation lawyers can take to support the traditional litigation role?

Monitor what is said about your clients

As a general rule, it is good practice regularly to check what is being said about your clients on the web.

With the social web, business brand and reputation can no longer be as controlled by the efforts of the business itself. In past times, a customer wanting to tell others about their experience with a supplier would only be able to tell so many people through word of mouth, and reputation (good or bad) spread slowly. Now, customers can and often will use social media to tell others about their dealings with a business. These online communications can be anything from a few comments to a full-scale campaign against a business.

It is now possible to engage companies who will monitor what is said about you on the web. For example, Market Sentinel is a supplier of blog and web monitoring services to the UK and seeks to identify key influence within the web.

At a more basic level, you can set up automatic web searches for mentions of your business. The major search engines provide alert services which deliver regular search reports on search terms – for example Yahoo! Alerts. These searches will pick up on content on websites, blogs, open wikis and other publicly available parts of the web and will deliver reports by email; some also deliver by text message or as RSS feeds.

Get negative comments removed

Rather than responding to a negative comment, you may decide that getting it removed or hidden is the only option. If a comment is defamatory and is placed on a third party website or social media platform such as Amazon (if it’s a product) or Facebook, you can ask the website owner to remove the comment. But most site owners will not do this unless you can demonstrate that the comment is defamatory, and so you may have to take formal litigation steps.

Use search engine optimisation techniques

Search engine optimisation is the process of improving the quality of web pages so that they rank higher in the search engines, for example using targeted key words. If criticism is being made of your client, it is possible to push these references down in the search engine rankings (by pushing your client’s up), and thus reduce their influence. Such an approach would be of limited value if enough criticism were being published on the web.

Exercise a right of reply

If a negative comment is made in a chat room or on a blog, you may decide that a response to the comment is necessary to put forward your perspective. If you do this, try to do so in a manner that minimises the risk of inflaming the situation. If you or your client responds, keep a cool head, keep the response professional and avoid it becoming a personal attack on the maker of the negative criticism.

Consider alternative dispute resolution

If you or your client is still not having any success in resolving the dispute and ultimately the client is facing damage to its reputation, you should consider alternative dispute resolution, in particular mediation. Mediation is a useful option in such disputes as it is without prejudice and can be potentially much speedier in reaching a resolution than litigation.

The appeal of mediation is that it gives an opportunity to engage with an opponent directly in what should be a confidential forum. Therefore, in an online dispute, it represents an opportunity for you quickly to engage with an opponent and ultimately stop someone continuing to damage your client’s reputation. According to government statistics, generally mediation works in about 80 per cent of cases.