Using the black arts of online reputation managementPosted on
Attempting to sidestep the correct legal processes, by falsely claiming to own the copyright in damaging material, can have far more damaging consequences
Individuals and companies who are faced with false and damaging posts online have plenty of legitimate tools at their disposal for dealing with indefensible defamatory or infringing content. Last week’s newspaper reports of a copyright complaint being used to remove unwanted content from Mumsnet about a building firm in South London is concerning.
We hope that this is not the beginning of a trend of individuals creating backdated content (which is identical to online content they want removed) and then alleging copyright infringement in order to achieve this.
So, what happened?
Annabelle Narey posted a negative review of building firm, Build Team Holborn Ltd on Mumsnet earlier this year. Build Team complained to Mumsnet. Mumsnet, following a relatively new procedure under the Defamation Act 2013, passed the complaint on to Narey. Narey refused to remove the post. By this point, others had also posted negative reviews about Build Team. For the moment, Mumsnet left the review up.
Then, in April 2016, Mumsnet received a notice from Google that it had received a takedown request under the American Digital Millennium Copyright Act (DMCA). The request stated that Narey’s review infringed copyright in an earlier review on a blog registered to an individual in Pakistan. The earlier review was allegedly posted to a flimsy blog “Home Improvement Tips and Tricks” on 14 September 2015. The domain name for the blog is registered to an individual in Pakistan. The review was signed off by a Douglas Bush of South Bend Indiana in the United States. The allegedly earlier review was identical. It remains unclear why an individual in Indiana was reviewing a building firm in London.
Mumsnet felt unable to contest the DMCA complaint. It could have made a counterclaim but it decided not to take this laborious process on. It would have involved proving title to the original piece. In order to rely on the safe harbour provisions set out in the DMCA, it had to take down the piece straight away once it had been informed it was “infringing”. The DMCA offers a defence to website operators, such as Mumsnet, who may have published unlawful content. Until the point at which the operator is put on notice of the unlawful content, it cannot be held liable for it. Mums net understandably wanted to have the protection of the DMCA, so they took down Narey’s review promptly.
Build Team told the Guardian that they had nothing to do with the DMCA request. It seems that this was just a massive coincidence that Build Team has had the good fortune to benefit from.
In the meantime, the potential for widespread abuse of DMCA Notices to remove legitimate material is clear. While this may have been a massive and unexplained coincidence, it does not take much imagination to see how similar results could be achieved intentionally, bypassing defamation law designed to create a balance between a person’s reputation and freedom of expression. The need to perfect technology which can automatically assess the chronology of content posted online becomes all the more pressing. If Google is able to confidently establish which piece came first (irrespective of date stamp), this may help shut down this dubious reputation management tool.
The publicity that has ensued from Mr Bush’s DMCA complaint is unhelpful to Build Team and probably outweighs the benefits to it of Narey’s review having been removed from the Mumsnet site. While Build Team maintains it had nothing to do with the DMCA complaint, the tale highlights the potential for backfire where this strategy is intentionally deployed in order to remove unwanted content from the internet.
Following the Guardian article it would appear that Narey’s post is now available again and appearing in the top 10 results on Google for “Build Team”. Google’s reference to the DMCA complaint now seems to have disappeared