We recently had the pleasure of working with Keri-Ann Baker on an article that appeared in the print magazine Journal for the American Water Works Association. The article is an introduction to ORM with a specific focus on how large utility companies and organizations can protect their brand and image online.
Lies, Smears, Innuendos, and Half Truths: A Guide to Protecting a Utility’s Online Reputation
Almost every utility, both public and private, has run into negative online commentary, which has a detrimental effect not only on commercial businesses but also on public and private utilities. Negative online reputations can have severe repercussions for utilities seeking to expand their coverage areas; obtain local, state, and federal grants or tax credits; or simply to continue servicing their existing customer base.
Combating negative online commentary has proved particularly troubling for utilities because of the “white paper effect.” Because utilities often deal in highly technical scientific documentation–such as white papers–they become paralyzed by proving their point through time-intensive study after study. This process puts the utility at a disadvantage to anonymous Internet posters whose online commentary is not required to go through rigorous peer review, third-party editing, or other processes to ensure the accuracy of the online statements. By the time a white paper has been fully vetted and is ready for publication, the online damage to the utilities’ reputation is done. Increasingly, public and private utilities are opting to deal with their online reputation management in a proactive manner. This article gives utilities concrete examples regarding search engine optimization and online reputation management tools as well as an overview of legal mechanisms available for public utilities to protect their brands online.
Understanding Search Engines
The influence that search engines have is more far-reaching now than it ever was before. Not long ago, a search simply returned 10 links and little more.
Now search engines offer users detailed reviews, maps and directions, and high-level information about a subject in the sidebar. Search engines will even try to guess, in real time, what users are searching for while they type it, offering suggestions in a list below the search box.
This new approach to Internet searching is having an unexpected effect on many individuals, businesses, and public utilities. Whether it is intentional or not, search engines are frequently recommending searches with phrases that include “complaints,” “reviews,” and sometimes “scam” and “lawsuit.” There is nothing more damaging to a brand or utility’s reputation than search results suggesting that the organization is run poorly or fraudulently. Often these problems appear online because of reviews from a former employee, competitor, or a small handful of customers who will never be satisfied with the service provided to them or the size of their bill.
Search engines making such automatic suggestions can also seriously affect a public utility. Imagine someone looking up a public utility office in order to pay a bill online and discovering a search engine suggesting a link that the utility has had a significant number of complaints. This can snowball into more discouraged and upset customers bringing their complaints online, and eventually to county and city meetings, public forums, or elected officials who have no problem putting all the blame on someone else, as long as it means he or she will get reelected.
Protecting Your Reputation
When search engines are attacking your brand, there are legal options to help protect your organization’s reputation. These legal causes of action include defamation, libel, breach of contract–including confidentiality agreements and employment agreements–copyright and trademark infringement, and potentially other causes of action at the state level.
The US Supreme Court has recognized that the First Amendment protects Internet speech and anonymous speech (Reno v. ACLU, 521 US 844, 870 (1997); McIntyre v. Ohio Elections Commission, 514 US 334 (1995)). However, anonymous Internet free speech is not unlimited. Lawsuits filed against anonymous Internet posters (i.e., speakers) have risen exponentially as the Internet has evolved as a primary mechanism for marketing and communication.
Identifying anonymous posters.
Critics of lawsuits filed against anonymous Internet posters allege that many lawsuits are aimed at identifying the anonymous person. Admittedly, knowing the person’s identity in this case is important because it can result in early negotiations and mediation that often short-circuit litigation. Knowledge of the poster’s identity is critical when a utility believes that the anonymous poster is a former employee with access to trade secrets or other confidential information. The courts have attempted to balance the constitutional right to anonymous Internet speech with an entity’s need to protect its image from false allegations. Courts have grappled with how and when to order the release of information pertaining to the identity of anonymous Internet posters.
To obtain the identity of an anonymous Internet poster, a plaintiff must file a legal action against John or Jane Doe as defendant. After the lawsuit is filed, the plaintiff will then issue a subpoena to the relevant Internet service provider seeking discovery pertaining to the identity of the anonymous poster. (Previously, anonymous speech was disseminated largely through word of mouth or through leaflets and signs. However, online speech is unique because it requires access to the Internet. Generally, to obtain access to the Internet, users must provide identifying information to an Internet service provider. In other words, users must register by providing their name, address, and payment information. This registration process makes it easier to obtain the identity of the anonymous poster.) Various courts have articulated different tests or factors to consider when determining whether to allow discovery concerning the identity of an anonymous Internet poster.
In Sony Music Entertainment Inc. v. Joes 1 through 40 (326 F.Supp.2d 556 (S.D.N.Y. 2004)), the court weighed the following five factors: (1) prima facie claim of harm, (2) discovery request narrowed to lead to appropriate identifying information, (3) absence of alternative mechanism to obtain information, (4) need for subpoenaed information to advance the cause of action, and (5) the anonymous speaker’s reasonable expectation of privacy. A New Jersey state court adopted a four-factor analysis in Dendrite International Inc. v. Doe Number 3 (342 N.J. Super. 134 (N.J. Super. A.D. 2001)). To obtain discovery related to an anonymous Internet speaker under Dendrite, a plaintiff must: (1) make good-faith efforts to notify the speaker and provide a reasonable opportunity for the speaker to respond, (2) specifically identify the speaker’s actionable statements, (3) draft a complaints with a prima facie cause of action that is supported with sufficient evidence for each element of the cause of action, and (4) balance the speaker’s First Amendment right against the prima facie case for disclosure (Dendrite International Inc. V. Doe Number 3).
Other courts have imposed more exacting standards requiring that plaintiffs identify the precise defamatory statements (Doe. v. Cahill, 844 A.2d 451 (Del. Supr. 2005)). The court will then balance the anonymous Internet speaker’s First Amendment rights against the merits of the poster’s plaintiff’s case (Doe. v. Cahill). This has been dubbed the “summary of judgment standard” by many courts and commentators.
The overall standard flowing through the majority of these lawsuits is the requirement that plaintiffs demonstrate a prima facie case showing that the plaintiffs will prevail on their claims against the anonymous Internet poster before obtaining discovery concerning the identity of the anonymous Internet speaker (e.g., Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal 1999)). The problem of damaging, anonymous Internet speech has become so prevalent that at least one state is trying to enact legislation to require anonymous Internet posters to identify themselves when they are asked or have their negative posts removed.
Using the legal system.
The Internet Protection Act (A.8688/S.6779; http://assembly.state.ny.us/leg/?default_fld=&bn=S06779&term=2011&Text=y) has received much criticism, and is questionable whether the bill could survive the First Amendment scrutiny. However, because this area of law remains fluid, other states may consider similar legislation.
This area of law will continue to develop and, although a legal approach is often a great starting point to solve online reputation problems, it is not always feasible. Some negative reviews of complaints against your brand or organization may be on websites that are not owned or operated by entities under US legal jurisdiction. Because there would be very little legal recourse in these instances, different approaches may be needed to help minimize the damage negative reviews might cause.
It is best to work with a legal team to request a court order that includes the URLs of the websites that have fake or false complains and to have reviews against your organization be taken down. Even though non-US entities will not legally be required to abide by the ruling, Google and other search engines are quick to honor these court orders. If a US judge orders content to be removed from a website and the site owner does not remove the content immediately, the larger search engines will quickly remove content from their indexes when they have been notified of the problem. Once removed from Google, Bing, and Yahoo’s search indexes, the negative reviews on these websites will be difficult, if not impossible, for the average searcher to find.
Outranking the negatives.
Another option is to outrank the negative content. If a user searches “(your organization name) + reviews” and discovers three or four sites that include negative feedback, you can work to push these results farther down the rankings so that it is harder to see them.
This can be done by drawing attention to positive reviews, news coverage, and neutral information about your organization and team. If there isn’t enough positive material currently available online, create it with the help of a public relations and marketing team. You can leverage social media websites to create interesting and interactive profiles that will often quickly show up in rankings for your brand name.
It is even possible to repair search engine suggestions when users start their search query (this function is called Autocomplete). These suggestions are derived from the number of times they are entered by users while searching. If you increase the number of times searches use phrases that are supportive of your brand, eventually the negative queries will be replaced by positive phrases in the algorithm.
Be sure to leverage data that shows the commonly used phrases for businesses in search engines’ Autocomplete function because it highlights the most common searches users enter for businesses. To increase the volume of positive searches about your organization, be sure to create pages on your website that use phrases such as jobs, careers, and awards and promote them through social media. As you proactively promote positive search queries, more people will enter these words and phrases into search engines and the suggestions for your brand will improve.
Proactively caring for your brand.
The most effective way to improve your online reputation is to protect it before there is a problem. A utility that plans a controversial service or infrastructure expansion should take steps to protect its image online before public workshops take place. A proactive online reputation will protect your organization from fake and fraudulent complaints, unhappy customers, and unruly politicians. It is also significantly cheaper to proactively protect your brand than to act only when you have a problem.
One method of proactively protecting your brand online is to stockpile positive reviews on sites such as Yelp and Google. If you type in an expletive and “water utilities,” at least five water utilities will be listed on the first page. Admittedly, most people will not search for a utility with these terms, but multiple Internet searches on local and national water utilities and extensive negative online information about many of these utilities can be found on multiple rating sites, blogs, and other web pages. Depending on the medium used, these types of reviews could spiral exponentially. Consider monitoring social media for mentions of your brand name and actively engaging customers before their 140-character complaint on Twitter turns into a much larger problem. In addition to monitoring social media, monitor Google Autocomplete suggestions to identify problems before they become mainstream.
Proactively managing your reputation online can help protect your business from larger problems with your customer base. It also allows you the opportunity to unmistakably present a clear message to current clients about what your organization does and how you provide service. Utilities have invested enormous time and energy in compiling white papers and other scientific documentation. Used proactively, these materials can bolster your online reputation on specific issues.
Online reputation problems can seriously threaten your organization. The perception of the services and products you offer and your organization’s ability to reach its goals can quickly be threatened when online reputation problems arise. There are a number of legal and management options available to help you if such a problem arises. However, proactive reputation management should be an essential activity for your utility today.
Brian Patterson is Go Fish Digital’s Director of Client Services and is responsible for researching and developing strategies for online reputation management, search engine optimization, and managing web development projects. He can be reached at firstname.lastname@example.org.
Keri-Ann C. Baker is an attorney at the West Palm Beach office of Lewis, Longman & Walker P.A. Baker’s practice focuses on administrative law, ports, airports and transportation, water, marine and coastal construction, and local government and social districts. She can be reached at email@example.com.