Legal news and trends for Canadian in-house counsel and c-suite executives
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web, but it's at a minimum time-consuming, extremely expen- sive, and pretty close to impossible." McConchie guesstimates that, in 10 to 15 years from now, there will be a communal effort by courts across the globe to stop smears that are obviously erroneous from circulating on the web. "But we're a long way from that right now. Although it's still a zone of activity that's governed by law, it's like the Wild West in the sense that the marshals are few and far between and they're often outgunned; the courts are outgunned by the sheer volume of these defamers," he says. Jane Shapiro, senior vice president and senior partner at public relations firm Fleishman-Hillard Canada, conducted a qualitative study at a 2006 conference that queried a group of in-house lawyers on what issues keep them up at night. She dis- covered that threats to corporate reputation and major litiga- tion were the two things that in-house lawyers feared most. Shapiro went further to ask the lawyers about the internet and, more specifically, blogging. She found that about half were worried about liability issues related to blogging. About one-third of the lawyers said they would either moni- tor or monitor and respond to false statements that appeared in blogs. One in five said they would take legal action against bloggers, if warranted. While the response wasn't overwhelming in terms of concern for online smears, Shapiro says times have quickly changed. "I think if we were to go back and do that same survey today, we would find increased interest, or concern for that matter, about blogging. "I think the environment is changing that rapidly in terms of the presence of blogs and bloggers, and the credibility they have," she says. Shapiro says an important factor for companies to keep in mind is that many of the reporters they work with in the main- stream media have their own blogs, and they are also reading and reporting the content of blogs. "Because bloggers, many of them don't need to verify their facts in the same way that a reporter in a mainstream newspaper or media outlet would, the facts are not always entirely accurate, but they'll be reported if they're in a blog in any event." There was a time when companies quickly responded to any false allegations with a threatening letter, but lawyer David Can- ton, who advises on information technology and e-business matters at Harrison Pensa LLP in London, Ont., says that can backfire now. "These days, before you do that you have to step back and think about it," he says. "Because sometimes you can cause more harm than good if you come at it too strong. You have to look at what kind of harm it has really done and [ask], 'What can I say to change that?'" Often, says Canton, a nasty letter from a company will be posted online and subject to ridicule. "That can come back to haunt you for a couple of reasons. One is, quite often when people write these letters they tend to go a bit overboard in an attempt to try and intimidate . . . you may exaggerate some of the claims you have. But what can hap- pen is it doesn't have the effect you wanted because it's so over the top that people pick away at certain parts of it and say how silly it is. It just doesn't get you anywhere." Sometimes it's best to ignore a claim than bring even more attention to it, says Canton, referring to the concept known as "The Streisand Effect." The term refers to an action taken by songstress Barbra Stre- isand, whose home was included in a series of photographs of the California coastline. She didn't like that people could find her house in the pics, sued to cease and desist, and in the end, the action of the suit brought far more attention to the fact that her house was view- able than if she had left it alone. "They're not easy calls, but you certainly can bruise your own brand by responding a bit over the top to things like that," says Canton. Shapiro says she and her colleagues at Fleishman-Hillard ad- vise companies not only to be aware of what's happening on- line, but be on the lookout for activity and decide if and when it's necessary to respond. She offers the following tips: • If you decide to respond online to erroneous statements, it's vital to be clear who you are when posting a statement. Some companies have been hurt after having someone post a com- ment without making clear who was behind the posting. • Learn the language of the blogosphere. Communication is a zone of activity that's governed by law, it's like the Wild West in the sense that the marshals are few and far between and they're often outgunned; the courts are outgunned by the sheer volume of these defamers." — ROGER MCCONCHIE, MCCONCHIE LAW CORPORATION C ANADIAN Lawyer INHOUSE FEBRU AR Y 2008 43 "We're a long way from that right now. Although it's still