Damages Models…
Specialized in online reputation management – and defamation damages models — I can provide the best potential for attorneys to provide clients with a path for obtaining damages where online defamation has been perpetuated.
Defamation Expert Witnesses Are Not All The Same
The Internet Age has given rise to unique conditions that provide fertile grounds for the publication and dissemination of disparaging and damaging materials. Prior to the rise of the popular internet, instances where libel or slander could reach thousands of people in a short timeframe were very limited. There could be instances where some libel might be published in a book, magazine, or newspaper. And, there could be instances where slander might get distributed through radio, television, or films. But, access and permission to communicate defamatory content through such media was typically not readily available for most people.
The internet changed everything, and some have said it changed arguably for the worse. Publication of a rapidly set-up blog post, Tweet, YouTube video, Facebook post, Instagram pic, or TikTok video can mean instant defamation with an audience reach that sometimes adds up to millions of people.
What Google and other Silicon Valley companies have referred to as the “democratizing nature of the internet”, has also meant that any crank with internet access can potentially amplify their voice to the same volume as the largest corporations on Earth, ignorant and poorly-informed online vigilante mobs can attack reputations to retaliate for perceived wrongs, and many have arguably developed poor impulse control and a lack of restraint when they post on the internet.
Because of the internet’s empowering people’s audience reach (and seemingly reducing their inhibitions about unfettered speech), defamation has propagated as never before.
Not all defamation expert witnesses have the deep knowledge and experience in internet technology and reputation management that is needed for most defamation lawsuits. Online defamation lawsuits typically require online defamation damages models, so you need someone with the necessary background to help develop a model for your case.
Categories of Internet Defamation Damages
Internet marketing evolved into a huge promotion channel in part because it is so beautifully measurable. Negative media is often similarly or equally measurable, which appeals to courts when one is assessing the visibility, audience reach, and persistence of defamatory materials.
ECONOMIC DAMAGES – Businesses are commonly affected by defamation. False and misleading content about a company or its owner/founder can cause potential customers to avoid it, resulting in revenue losses. While I am not an economist nor a forensic accountant, I can assist financial expert witnesses in determining when negative media was published, how many people would have seen it, and how this may correlate with actual sales figures before and after the defamation became public. Based on this evidence, a finance expert can project the difference between typical and actual sales to determine how much money was lost due to defamation. But, sometimes lost profits are hard to establish since it sometimes becomes an exercise in trying to “prove a negative” since you do not always know what DIDN”T come to you — and there are other models that may be useful if that is the case.
DISGORGEMENT – While many consider disgorgement more commonly for trademark infringement cases, it may not be realized that there can be profit motives involved in online defamation at times. I have worked on cases where social media influencers built their audience followings in part off of perpetuating attacks on others’ reputations. On social platforms like YouTube, Instagram, Twitch, X.com, and TikTok, influencers begin receiving payments once their audience surpasses certain thresholds. Controversy and conflict create engagement in social media, and engagement equates with greater distribution and views. Thus, simply by attacking others’ reputations, an influencer or would-be influencer can increase their audience and revenue. It’s one thing to besmirch someone’s reputation, but it’s quite another to do so in order to profit from it! Through discovery, one may obtain social media metrics or web metrics that can help show how much audience growth and platform payments have developed over time. Or, one may create a valuation of the influencer’s channel, and that value, built on the damage to others’ reputations, may be deemed unfair.
MITIGATION – Online Reputation Repair has significant costs associated with it, so if one’s reputation is damaged in Google, the cost of the work necessary to mitigate that damage should appropriately be paid by the one who committed the defamation. There are a few elements for this that can be used singly or in combination as appropriate:
- Conventional Online Reputation Management (SEO) – This approach is appropriate for displacing negative content from being prominent in search engine results. To perform ORM through SEO, one must focus on promoting new and existing positive and neutral content that is relevant for the subject’s name. One can create websites, social media profiles, articles, blog posts, photo images, videos, multimedia, press releases, and more. Online Reputation Management is labor-intensive, because when one creates websites, webpages and other media, one must first do so in a highly-optimal manner, coding or generating the content in such a way as to render it relevant for the keyword (the subject’s name).
Technical elements of websites must be readily accessible to search engines, and this entails incorporating the keyword in page’s HTML titles, headings, image alternative text parameters, text on pages, domain names, and links. The site likely should be set so the SEO developers can access Google Search Console, and use of sitemaps and hierarchical link structures can help. Further, external optimization likely needs to be conducted — other websites ideally need to link to the websites and new media because Google and other search engines treat links like “votes” so that content with more “votes” may outrank other content that has fewer “votes”. The scope of difficulty can be understood when you consider that to offset a prominent news site story, you will be trying to obtain enough links to outrank a site that has been around for many years and has already obtained the weight of many thousands of links.
Google does not accept just any votes because they have tried to counteract artificial link manipulation. It is worth understanding that companies spend a lot of effort to get a single website or a single page to rank well for a particular keyword search. But, if there is one negative item appearing for a keyword search, one may need to optimize ten different webpages to outrank one negative item — since there can typically be ten items appearing on the first page of search results. In practice, one must optimize more than ten items, too, because some slots of the search results may include multiple images or multiple social media posts, etc.
This standard approach to ORM can be employed during the period when a defamation victim has begun the process to litigate their complaint. Litigation of defamation can require months and even years before one can get justice, and meanwhile, they may choose to spend money to mitigate the defamation. Once they have prevailed in their case, they may be able to obtain an injunction and compel the defamer to remove the defamatory content. In that event, the ORM project may be a finite cost already absorbed, which can be presented to the court. In yet other instances, defamation can get reiterated or republished in media that are unlikely to be subject to legal removals, such as if the defamation gets reported by news organizations like the New York Times, CNN, the Wall Street Journal, the New York Post, or USA Today. Also, some social media sites, forums, complaint sites, and foreign websites may not be subject to U.S. removal demands. Section 230 of the Communications Decency Act. - Longterm Monitoring & Intervention – In cases where defamatory content is unlikely to get removed following the conclusion of a defamation lawsuit, it may be advisable to conduct ORM to suppress the negative media, perform ongoing monitoring to see if the media begins to resume ranking prominently again after the initial suppression work, and a retainer budget to perform further active ORM work to resuppress the media once more. So, for persistent defamation content that is unlikely to get removed, there is a long-term cost to consider to continue monitoring and mitigation work.
- Corrective Advertising Campaigns – While there is no perfect way to repair reputation damage, one method is to promote positive content to counteract the negative content. An overly simplistic explanation is that one would generate positive, reputation-building ads, published in the same media channels where the defamation was distributed, and obtain an equivalent or greater amount of ad impressions than the defamatory content had received. For instance, if a defamatory Instagram post achieved 20,000 views, then a corrective ad campaign to counteract that reputation damage might cost the amount required to have the ad displayed 20,000 times. The ad management fee for a professional to set up the ad campaign should also be included. In actual practice, the prevailing theory is that one must obtain more positive impressions than what the original, defamatory media achieved in order to properly counteract it.
- Crisis Communications & Public Affairs Communications – In some cases, it may be desirable to issue public statements, denials, or rebuttals in order to mitigate the damage due to defamation. Professional public relations communicators are a necessity in some instances involving celebrities, public figures, politicians, prominent businesses, and corporations. Premium communication consultants command significant fees, and there can also be additional costs involved, such as public relations training, costs to promote stories to news organizations, filming fees, and some of the best press release platforms require significant fees to distribute a release.
- Damages Based On The Scope of Exposure – In some instance there may be poor foundation for “reputation repair” per se. In such cases, simply establishing hard numbers for the scope of exposure of the defamatory materials may help provide just enough basis for the court to accept a proposed approach to a damages calculation. For instance, if a defamatory communication was published and it could be determined to have been seen by 200,000 people, perhaps the court would accept a proposed defamation model requiring the defendant to pay the plaintiff $1.00 per each person who was exposed to the defamatory content.
- Other Mitigation Costs – Depending on the details of the specific case, there can be other costs involved. For instance, it may be advisable to pay one or more prominent social media influencers to recommend to counteract defamation. It can be difficult, and hence, time-consuming, to remove negative content from Wikipedia or to extract it from third-party repositories such as the Internet Archive.
The Devil is in the Details
There are multiple complexities that can be involved in mitigation efforts. It is valuable to know the technical limitations of websites and various prominent platforms. For defamation appearing in search results, you may likely need an SEO expert to discuss how published media is interpreted and ranked by search engines. An SEO expert can explain why content can appear in search engine results, and how search engine algorithms function, including the elements they do and do not assess to determine rankings.
Online Reputation Management is a unique niche within the search engine optimization industry, so you likely would need an ORM expert who has conducted many mitigation campaigns to repair online reputations if you intend to propose an ORM component of a defamation lawsuit’s damages.
Each social media platform also has its own unique ranking algorithms and factors that affect the visibility of content posted. So, if social media posts are involved, you may need a social media expert.
Ads can have a range of options and costs, so if you intend to include a corrective ad campaign, you need an experienced expert with a background in social media advertising, search engine advertising, and ad network advertising.
Defamation Defense Expertise Involving Damages
Defamation lawsuit damages can be highly complex, as you may see from the samples of damages models outlined here. Even if someone is determined to be responsible for defamation, they deserve to have the damages to be fairly developed and calculated.
I have worked on a few defamation lawsuit cases where an expert involved simply pulled damage award numbers out of thin air, “based on their long experience.” These are frequently experts who have the bulk of their experience in public relations agencies, where goals and project deliverables can be more nebulous — where agencies are riding on their principals’ reputations more than directly measurable results. Technically, simply proposing a damages award based on one’s impressive “experience” is not something that should be accepted in court cases, as it should properly be challenged and excluded under the Daubert standards. This form of nebulous “evidence” is referred to as “ipse dixit,” which roughly means “this is what it is, because I said so.” In contrast, to meet the evidentiary requirements for the court, damages should be arrived at based on industry-accepted, standard methodology, which can be reproducible, and where the basis for the calculations is cited based on clear criteria. While pulling a nice, round number out of thin air is perfectly fine for a public relations agency project proposal, it should be laughed out of court.
A good, solid reputation management professional may be necessary to counteract weakly-founded defamation damage recommendations by pointing out the inequivalent costs proposed versus thouse that would be necessary to counteract defamatory impressions.
There are a lot of qualifications to how social media impressions may be accounted, in addition to how webpage visits or views are determined for purposes of damage calculations.
So, there is a role for having an experienced online defamation expert witness in order to help ensure fairness and limit miscalculations, and to point out poor assumptions in claims and the findings of plaintiff’s experts.
Conclusion
I have outlined a number of key issues and types of damage models for defamation lawsuits herein.
Each case has unique elements and evidence that must be specifically reviewed.
There are unquestionably some extensive challenges to establishing damages in United States defamation lawsuits. Defamation law limits the availability of justice through litigation in many states, such as through overly restrictive statutes of limitations. (Sometimes, the technical details of defamation published on the internet can help overcome the challenge of statutes of limitations in some cases.) Because of this, it can be difficult to obtain damage awards that repair losses caused by victims, or which punish defamers sufficiently to make them think twice about doing it again.
Most expert witnesses involving digital media are not qualified to provide most of these damage models in court cases, nor are they qualified to critique or provide opinions about all of the forms of damage. While there are many expert witnesses involved in online marketing, SEO, or social media, only a subset of those experts have actual background in conducting online reputation management, and have not been known for writing articles on the topics involved, nor have been asked to speak at multiple conferences on the subject.
I have a very long background in online defamation lawsuits. Read more about my expertise as a defamation expert witness, and some of the more dramatic cases I have worked on that produced multimillion-dollar awards.
