The law and reputation management: 9 things you need to know

This post has been modified to reflect new information since its original publication.

If you’re facing an online reputation issue, it can be useful to know which problems you can solve through legal channels and which things you can address using online reputation management.

Here are some of the most important laws that apply to online reputation issues. Before you decide to call your lawyer, it’s a good idea to familiarize yourself with what these laws cover—and what is best dealt with through other means.

1. The First Amendment to the Constitution

The First Amendment protects our Freedom of speech. It declares that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This means that the government can’t control what we say, with certain exceptions, including:

• Words or actions meant to incite violence or that influence others to commit acts of violence
• Libel and slander
• Child pornography
• The creation or distribution of obscene materials

While it’s one of our most essential rights, the Freedom of Speech can be a double-sided coin when it comes to online communication. Because the government cannot dictate what people can and can’t say, the Internet has become a “Wild West” in which anonymous individuals are free to insult and demean others.

However, the First Amendment doesn’t apply to private companies, like Twitter, Facebook, and Yelp. Because they are not government entities, they have the power to block or remove content that doesn’t meet their community guidelines.

But, if someone trashes your reputation online and the platform won’t remove it, then you have to find a way to suppress this content or sue for defamation, which can be hard to do and often makes the situation worse.

2. The Communications Decency Act of 1996 (CDA) – Section 230

Section 230 of the Communications Decency Act says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This means that Internet service providers and companies that publish third-party content online can’t be held responsible for what others do and say on their platforms.

This protection has been a boon to social media companies and other online outlets for online communication. However, because nobody can legally hold these platforms to account, online defamation and cyberbullying has flourished as well.

3. Digital Millennium Copyright Act (DMCA) of 1998

Congress passed the DMCA (PDF) to address how America would implement WIPO—an international copyright treaty. Originally, the bill was driven by the entertainment industry, which wanted to protect intellectual property from large-scale copyright infringements. In retrospect, the most important aspect of the law has been its rules (known as safe harbor provisions) that protect online service providers from being sued over what their users post.

This protection only applies if businesses comply with certain conditions—including notice and takedown procedures that let copyright holders easily disable access to content that infringes on their copyright. The provisions also give users a way to challenge takedown requests. Without these protections, the threat of copyright lawsuits would deter many Internet companies from hosting user-generated content.

Unfortunately, businesses must remove content immediately (without evaluating the request’s accuracy or reasonableness) when someone files a takedown notice. Companies that don’t immediately act on takedown notices lose their immunity.

This has led to numerous abuses (PDF) of free expression. But, ironically, the forums that people share their thoughts and ideas on might not exist without the DMCA’s protection.

To learn how to file a DMCA takedown notice, see our article The definitive guide to getting embarrassing photos off the Internet.

4. Defamation laws

Defamation, which is short for defamation of character, is the legal term for someone making a false statement that destroys another person’s reputation. This kind of speech is not protected by the First Amendment.

In America, defamation is a civil matter, not a criminal one. This means that you have to sue someone for damages instead of putting the defamer in jail.

There are two types of defamation:

• Slander—Spoken statements.

• Libel—Written or fixed statements. Because the law considers the Internet a fixed medium, online attacks on your reputation, even in video form, fall into this category.

Defamation laws vary depending on what state you’re in. However, the criteria for judging whether a statement is defamatory is basically the same. To be defamatory, a statement must be:

• False: If you can’t prove a statement is untrue, then you can’t demand someone delete it. This is why opinions like “This store was the dirtiest place I’ve ever seen!” aren’t considered defamation. However, if an individual writes, “Avoid this business: The owner overcharged me by $1,000!” and your records show that you’ve never done business with that person, then you have grounds to sue for defamation.

• Published: In defamation law, published just means that someone made a statement in public, not that he or she printed the statement in a magazine or book. Anything posted online is considered published.

• Unprivileged: In some cases, individuals are exempt (privileged) from defamation suits. For example, when someone testifies in court or tries to warn people of danger.

• Injurious: The goal of suing someone for defamation is to receive compensation for the damage his or her statement has done to your reputation. Therefore, you have to prove how the false statement has harmed you. For example, it might have caused your boss to fire you, hurt your business’s bottom line, or ruined your relationships. As such, if you already had a bad reputation when someone made a defamatory statement against you, it’s harder to win a defamation lawsuit.

For more information on how to respond to defamation, see our article How to deal with online defamation.

5. Nonconsensual pornography laws

Nonconsensual pornography is the distribution of sexualized images without the subject’s consent, even if the photos were originally taken with permission or by the subject him/herself. Another term for nonconsensual pornography is revenge porn.

Because service providers and websites aren’t considered publishers according to Section 230 of the Communications Decency Act, they aren’t legally required by federal law to delete nonconsensual pornography unless it violates another criminal or copyright law. However, 46 states have passed their own laws prohibiting the production and distribution of this content.

While the laws vary by state, most of them consider a person guilty of nonconsensual pornography if he or she attempts to harass another individual by publishing or distributing images or videos that:

• Display the person’s anus, genitals, or female breast.
• Show the individual performing a sexual act.

To learn what to do if someone has posted explicit pictures of you and how to avoid becoming a victim, see our article How to protect yourself from revenge porn.

6. Online impersonation laws

Online impersonation is the act of pretending to be someone else to scam or otherwise harm another person. For example, an individual who creates a social media account in your name and posts offensive or inappropriate messages designed to ruin your reputation would be guilty of online impersonation.

In general, there are four types of illegal online impersonation:

• Harassment—When someone pretends to be another person to threaten or harm someone else.

• Defamation—When someone impersonates another person to spread false and malicious statements about an individual.

• False light—When someone presents factual information in a misleading or harmful way.

• Professional impersonation—When a person pretends to be a public official doing his or her job—for example, impersonating a police officer to get information about someone involved in a crime.

There is no national law addressing online impersonation. But, several states have passed their own laws, including New York, California, Louisiana, and Texas.

Texas’s online impersonation law, for example, makes it illegal to:

• Create a social media profile under someone else’s name.
• Develop a website using the name of another person.
• Posting messages as another person.
• Sending any type of electronic communication that is falsely attributed to someone else.

See our article Online impersonation laws for more detailed information about what to do if someone is impersonating you online.

7. Extortion laws

A felony in all 50 states, extortion is the practice of trying to get people to do something for you by threatening them or blackmailing them. One classic example of extortion is when someone emails someone else and threatens to release an embarrassing picture of him or her unless that person gives the extortionist a large amount of money.

An incident must involve a threat to the victim, someone close to the victim, or his or her property to qualify as extortion. However, the threat doesn’t have to be physical. Threats to expose an embarrassing secret or to damage someone’s reputation or career are covered under most state laws.

To learn what to do if someone is trying to extort you online, see our article Internet extortion: How to prevent it and the best way to respond to it.

8. Cyberbullying laws

Cyberbullying is not just about kids being mean to one another. In fact, a 2017 Pew Research Center study showed that 41% of adults have experienced online harassment.

In response to this growing problem, every state in America has passed laws that deal with stalking and/or harassment, and most of these statutes explicitly reference electronic harassment, otherwise known as cyberbullying. In cases where there is no specific cyberbullying criminal law (as opposed to a civil matter), many prosecutors charge perpetrators with criminal harassment.

Some examples of illegal cyberbullying activities include:

• Harassment based on gender or race
• Violent (or death) threats
• Obscene and harassing texts
• Sextortion
• Child pornography
• Stalking
• Hate crimes
• Photographing an individual somewhere he or she expects privacy
• Extortion

If someone is targeting you or someone you know with one or more of these cyberbullying behaviors, read our article How to recognize, prevent, and respond to cyberbullying to learn the best ways to deal with it.

9. Data privacy laws

There are several data-privacy laws that might apply to you if you are trying to repair or maintain your online reputation.

Mug shot laws

Imagine being arrested for a crime you weren’t ever convicted of. You never did anything wrong, yet the mug shot the police took of you during your booking process still follows you around on the Internet years later, limiting your ability to get housing or a job. The situation is also unfair if you served your time and now have an expunged record. To make matters worse, the websites that host these mug shots charge you hundreds and sometimes thousands of dollars to remove your mug shot.

While some sites will take down a mug shot for free if you can prove you were never convicted, the damage to your good name is already done. Once someone posts a picture on the web, other individuals or websites can copy it and share it across the Internet, thereby destroying the online reputation of the person in the mug shot.

Luckily, over a dozen states, including Florida, California, Arizona, and Colorado, have passed laws to prevent this type of extortion. Utah, for example, has made it illegal for law enforcement agencies to share booking photos with these types of websites. Georgia and Oregon have enacted laws to force these websites to delete mug shots of people who had their charges dropped or dismissed.

Lawyers have also relied on DMCA takedown notices to fight these cases, but only when private firms were the ones to actually take the booking photos, instead of the police. This is because the government isn’t allowed to own a copyright.

To find out how to protect your online reputation if a mug shot of you exists, see our article How to remove your online mug shot.

The right to be forgotten

The right to be forgotten, also called the “right to erasure,” is part of the European Union’s General Data Protection Regulation (GDPR), which the European Parliament passed in 2016 to give people more control of their personal data. Basically, the right to be forgotten allows EU citizens to ask search engines for EU audiences to suppress—not delete—embarrassing, outdated, untrue, or defamatory search results from EU-hosted websites.

This law exists to protect people from the harm that comes from being judged in perpetuity for some minor offense that doesn’t reflect who they currently are. For example, a 50-year-old man, who has otherwise lived an exemplary life, shouldn’t lose job opportunities because a misdemeanor he committed as part of a high school prank shows up in the search results for his name.

However, these removal requests can be denied if the information in the links is deemed to be in the public interest. To date, Google has received 845,501 requests to delist 3.3 million links, of which it has removed 45%.

California’s “eraser button” law

Teenagers and children are prone to making online gaffs without much thought as to how the content they share will affect their offline lives. To address this problem, California passed SB-568 (called the eraser button law), which strengthens an existing federal data-privacy law regarding minors by forcing websites to offer a quick and easy way for minors registered on their site to get rid of embarrassing content, such revealing pictures, that they have shared online.

Under the 2013 law, website owners that target minors or know that minors use their site must do four things:

• Notify minors that a removal mechanism exists.

• Instruct minors on how to take down or request that the website remove content.

• Provide a way for minors to delete or anonymize their content or request that the site owner delete or anonymize it.

• Post a disclaimer notice that warns minors that the removal process doesn’t guarantee the content will be completely removed.

To learn more about protecting your teen’s online reputation, see our article Tips for teenage online reputation management.

Of course, the information in this article just scratches the surface. We’re not lawyers and we can’t offer legal advice, but if something above rings a bell, you might want to talk to an attorney.

Regardless, if you’d like more information on solving your issues through online reputation management, we suggest reading the following articles to get started:

• The definitive guide to online reputation management
• What is online reputation management?
• 7 online reputation mistakes you might be making
• How to protect your online reputation

Still have questions? Feel free to give us a call. We’re always happy to offer a complimentary reputation management consultation tailored to your specific situation.