Online threats to commercial reputations are on the rise. These include “attack sites”, “gripe sites” (e.g. RipOff Report), cyber-libel via social media, domain name high-jacking, meta tag high-jacking and defamatory email campaigns. Online brand and reputation attacks are easy and inexpensive to wage and they can be devastatingly effective.
When confronted with an online attack to its brand, a business has a number of options. It can respond with a “corrective campaign”, hire an online reputation management expert, hire a lawyer to write demand letters to the attacker (if known) or to Internet intermediaries or commence a lawsuit – or none of or all of the above.
The best response will often include legal action. Online reputation and brand attacks can give rise to a number of causes of action against the persons directly involved as well as, in certain cases, the Internet intermediaries who provide the means or the forum for the attack.
The traditional causes of action for protecting a commercial reputation from published attacks are libel and injurious falsehood. But both can be challenging in the context of online attacks, particularly if the offending statements are not specific or entirely false or may be viewed as fair comment. Courts are also reluctant to grant interlocutory injunctions restraining expression given its constitutional protection. And waiting two years for a trial might not be an option.
Intellectual property law can be a source of more useful causes of action and more expeditious procedures and remedies, such as interlocutory orders and applications in the Federal Court.
Where the attacker is a competitor or is using the victim’s registered trademark relief can be sought under sections 7(a) and 22 of the Trademarks Act. Where the attacker is using a variation of the victim’s domain name to host an “attack site”, section 7(b) of the Trademarks Act may support an action for “domain name passing off”. Copyright law can provide relief if the attacker is incorporating the victim’s logos or graphic designs on an “attack site”.
Intellectual property rights can also be asserted through Internet intermediaries’ and domain name registries’ dispute resolution procedures as well as or instead of before the court.
Just commencing legal action for infringement of intellectual property will sometimes resolve the problem, by prompting the attacker or the Internet intermediary to remove, de-list or de-index the offending content to avoid having to defend a law suit.
Given how swiftly an online attack can inflict serious damage, an all of the above approach is often the best.
Here is a link to a presentation I gave recently on IP Strategies for Online Reputation Management that provides a more detailed overview of the topic. And on June 9, 2016, I will be co-chairing a half-day conference on "IP and The Internet" presented by the Ontario Bar Association where I will be speaking about IP and online reputation management with other experts in the field. Stay tuned for more information about that.