The 36-year-old associate at Pitblado LLP is finding more of his billable time taken up tackling clients’ complaints about what’s being said about them or their companies on the web. “It just sort of evolved that way,” says Bowman. “I don’t know of any other lawyers doing this in Canada — in the U.S., yes, but not in Canada yet.”
Since being called to the Manitoba bar in 2000, Bowman’s main practice has been in privacy law, and, since it crosses over into internet and computer technology, more clients started coming to see him seeking advice about how to have objectionable material removed from the web. He quickly discovered the issues dragged him into other areas of law: defamation, copyright, trademark, licensing, and intellectual property.
“About half my clients are businesses who are concerned about their brand or product being attacked online — in some cases, for example, there could be some sensitive documentation posted online which might be proprietary,” says Bowman, adding the nature of the internet creates an environment of anonymity which leads some to write and post materials they would not in the real world.
While the courts have clearly established certain laws, such as libel, apply to the internet, the area is emerging and there isn’t a lot of case law at hand. He’s in the process of working with an articling student at Pitblado to assemble reference cases from Canada and other jurisdictions.
Bowman is getting calls from across Canada and says his forte is not litigation but a more subtle approach. “The last thing you want to do is right off the bat is slap them with a statement of claim,” says Bowman. “And besides, I’m not a litigator — I mean I can, but that’s not really what I do. So it becomes a bit of a chess game.”
His first line of defence — or attack — is to advise the client on the areas of law which may be of assistance. He then searches out who is the registered owner of the web site in question and gets contact information. “Usually I have the client call themselves,” he says, noting the approach is more subtle than a lawyer’s letter or threat of lawsuit.
Steve Matthews, of Stem Legal Services in Vancouver, a legal-services outsource company, says online reputations — and protecting them — is a fast-growing issue and agrees the standard letter or lawsuit approach is fraught with risk. “Any lawyer looking to work in this area will need to gauge the weight of varying scenarios,” says Matthews. “For example, a lawyer sends a demand letter to a blogger writing malicious posts, that blogger in turn decides to republish the letter in another blog post, which then gets picked up by three newspapers.
Thousands of links pour in, and the letter is republished on 50 more blogs. The scenario has just exploded, and it’s now the lawyer’s fault.”
Still, says Matthews, online reputation protection is an important concern for anyone selling services, lawyers included. “That list could include accountants, consultants, real estate agents, financial planners — pretty much anyone who relies on their name to market themselves. Even product-based businesses are feeling the pressure to put ‘a face’ to their company’s online presence,” he says.
The cautious approach has other bonuses, says Bowman, in that it’s often all it takes and the client is happy since they didn’t incur litigation costs and it was done quickly. “The problem with cyberspace is that things get old and forgotten very quickly whereas litigation can drag on for years, long after everyone’s forgotten what it was all about,” he says. But, if those responsible don’t respond after the initial contact, he still has a quiver full of options — though he hasn’t had to resort to a full-blown lawsuit yet.
Ironically, given the speed with which new materials are posted and deleted, sometimes simply removing the item isn’t a panacea; the nature of the internet means content is “cached” (or stored) and mirrored on servers all over the web and sometimes it takes some time for that data to be washed out of the system. That, too, may take some sleuthing.
For individuals, restoring reputations is a similar process, he says. “I had a client who posed for some provocative pictures, which were to be used for a limited time, and then was upset because they weren’t taken down,” he says. In that case it became a licensing issue since the pictures were contracted to be used in a promotion for a set time period. “We were able to work that out quite quickly.”
However, in some cases clients are the authors of their own misfortunes. While people are more cautious about what they post on their Facebook or MySpace sites, lest a potential employer catch them posing in a pink tutu while inhaling from a purple bong, their friends and acquaintances don’t always exhibit the same restraint. In cases like that, there’s little one can do, says Bowman. He advises clients simply work with the people involved to have the material removed.
“I didn’t start out to do this and no one is more surprised than me,” says Bowman, who writes for the Winnipeg Free Press around technology and the law. “I’ve been asked to speak on this a number of times and I’ve just been approached to write a book on the subject, so it’s all very exciting for me.”
