Document Number© 2015 GARFUNKEL WILD, P.C. Protecting Online Reputations: Surviving and Prospering in the Online World October 15, 2015 Presented By: Kevin G. Donoghue Garfunkel, Wild P.C. (516)

2Document Number© 2015 GARFUNKEL WILD, P.C. Presentation Overview Investigating the Online Attack and Developing a Strategy to Address It Investigating the Online Attack and Developing a Strategy to Address It Implementation: Executing the Plan and Achieving Results Implementation: Executing the Plan and Achieving Results Case Studies Case Studies

3Document Number© 2015 GARFUNKEL WILD, P.C. Investigating the Online Attack and Developing a Strategy to Address It

4Document Number© 2015 GARFUNKEL WILD, P.C. Investigating the Online Attack Who is attacking you? Who is attacking you? What type of online attack is it and where is it located? What type of online attack is it and where is it located? Fact gathering at the outset is crucial to developing an effective, cost-efficient plan Fact gathering at the outset is crucial to developing an effective, cost-efficient plan

5Document Number© 2015 GARFUNKEL WILD, P.C. Developing a Strategy to Address the Online Attack Be very aware of anyone who offers to assist by rushing to the simple, cookie- cutter “quick fix” Be very aware of anyone who offers to assist by rushing to the simple, cookie- cutter “quick fix” The proposed strategy will be driven by the underlying facts The proposed strategy will be driven by the underlying facts Many issues factor into approach to be taken Many issues factor into approach to be taken

6Document Number© 2015 GARFUNKEL WILD, P.C. Developing a Strategy to Address the Online Attack The protocols, if any, to which the website in question adheres The protocols, if any, to which the website in question adheres Review website’s Terms of ServiceReview website’s Terms of Service Identify those provisions of the Terms of Service that are violated by the online attackIdentify those provisions of the Terms of Service that are violated by the online attack

7Document Number© 2015 GARFUNKEL WILD, P.C. Developing a Strategy to Address the Online Attack Other considerations Other considerations Client ConcernsClient Concerns Economic costs to client Economic costs to client Noneconomic costs to client Noneconomic costs to client Client’s tolerance for risk Client’s tolerance for risk Legal ConcernsLegal Concerns Jurisdictional issues Jurisdictional issues Timing of claim – statutes of limitations Timing of claim – statutes of limitations Strength of potential claims Strength of potential claims Quantifying damages Quantifying damages

8Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results

9Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results A note on removal of online content versus driving down or otherwise managing content A note on removal of online content versus driving down or otherwise managing content

10Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results Removal approaches generally fall into one or more of the following categories: Removal approaches generally fall into one or more of the following categories: Reach out to the online attacker – either amicably or by way of a cease and desist letterReach out to the online attacker – either amicably or by way of a cease and desist letter Reach out to the websiteReach out to the website Pursue a judicial remedyPursue a judicial remedy

11Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results ”You can catch more flies with honey than vinegar.” Reaching out to the online attacker Reaching out to the online attacker Clients often know or have a strong suspicion as to who the online attacker is Clients often know or have a strong suspicion as to who the online attacker is If there is a chance to amicably communicate with the attacker, client or counsel can do so If there is a chance to amicably communicate with the attacker, client or counsel can do so Goals are to try to understand attacker, find a way to resolve attacker’s complaint, and to ask attacker to remove damaging online content Goals are to try to understand attacker, find a way to resolve attacker’s complaint, and to ask attacker to remove damaging online content

12Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results When you are not catching any flies with honey… Sending the Cease and Desist Letter Sending the Cease and Desist Letter If amicable solution is not possible, then client or counsel can send a Cease and Desist letter If amicable solution is not possible, then client or counsel can send a Cease and Desist letter Always remember the Hippocratic Oath of Online Attacks – First Do No Harm Always remember the Hippocratic Oath of Online Attacks – First Do No Harm Be prepared to have the Cease and Desist letter posted for all to see – understand that there is more than one target audience Be prepared to have the Cease and Desist letter posted for all to see – understand that there is more than one target audience The major approaches to Cease and Desist letters The major approaches to Cease and Desist letters

13Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results Reaching out to the website Reaching out to the website Understanding the lay of the land – the uphill battle in the world of the Communications Decency ActUnderstanding the lay of the land – the uphill battle in the world of the Communications Decency Act

14Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results Section 230 of the Communications Decency Act (“CDA”) is a groundbreaking piece of Internet legislation in the United States, codified at 47 U.S.C. § 230. Section 230(c)(1)47 U.S.C.§ 230 CDA provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others

Implementation: Executing the Plan and Achieving Results The CDA provides that no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider 15Document Number© 2015 GARFUNKEL WILD, P.C.

Implementation: Executing the Plan and Achieving Results When analyzing the availability of the immunity offered under the CDA, Courts very often apply a three-part test. All three must be met to obtain immunity. The defendant must be a provider of an "interactive computer service." The cause of action asserted by the plaintiff must treat the defendant as the "publisher or speaker" of the harmful information at issue. The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue. 16Document Number© 2015 GARFUNKEL WILD, P.C.

17Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results The Good News About Communications Decency Act Immunity… The Good News About Communications Decency Act Immunity… Can be used as both a sword and a shield by providers of interactive computer services because the statutory immunity applies whether content is left online or taken downCan be used as both a sword and a shield by providers of interactive computer services because the statutory immunity applies whether content is left online or taken down

18Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results Reaching out to the website Reaching out to the website Know the website that you are approachingKnow the website that you are approaching Review Terms of Service for the websiteReview Terms of Service for the website Prepare a credible and persuasive explanation as to why the content must be taken downPrepare a credible and persuasive explanation as to why the content must be taken down

19Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results Reaching out to the website (continued) Reaching out to the website (continued) Identify the right person and try to speak with him or her by phoneIdentify the right person and try to speak with him or her by phone Put in writing to website only after trying to contact by phonePut in writing to website only after trying to contact by phone Rely upon not only Terms of Use but also common sense and emotional appealsRely upon not only Terms of Use but also common sense and emotional appeals If complete removal by the website is not going to occur, try to pursue other optionsIf complete removal by the website is not going to occur, try to pursue other options

20Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results Going to Court – pursuing a judicial remedy Going to Court – pursuing a judicial remedy Commence a lawsuit against online attacker (not the website) for defamation, business tort, and other possible claimsCommence a lawsuit against online attacker (not the website) for defamation, business tort, and other possible claims Obtain an order or judgment from Court finding that online content is defamatory or otherwise illegalObtain an order or judgment from Court finding that online content is defamatory or otherwise illegal Bring court order / judgment to websites and / or to search engines asking that they take down offending content or links theretoBring court order / judgment to websites and / or to search engines asking that they take down offending content or links thereto

21Document Number© 2015 GARFUNKEL WILD, P.C. Implementation: Executing the Plan and Achieving Results Going to Court – pursuing a judicial remedy (continued) Going to Court – pursuing a judicial remedy (continued) In those cases when client cannot identify the online attacker, commence legal proceedings in order to serve a subpoena on websites, and possibly also on internet service providers, to obtain identity of online attackerIn those cases when client cannot identify the online attacker, commence legal proceedings in order to serve a subpoena on websites, and possibly also on internet service providers, to obtain identity of online attacker

22Document Number© 2015 GARFUNKEL WILD, P.C. Case Studies

23Document Number© 2015 GARFUNKEL WILD, P.C. Case Studies Online Attacks of New Jersey Medical Group Online Attacks of New Jersey Medical Group Difficult and aggressive patient, multiple posts on numerous websites, successful handling of matter through website contacts alone Difficult and aggressive patient, multiple posts on numerous websites, successful handling of matter through website contacts alone Multiple Online Attacks on Surgeons in New York Medical Practice Multiple Online Attacks on Surgeons in New York Medical Practice Approached the patient first, then websites, then turned to legal proceedings against patient, including engaging cyber investigation services firm, that resulted in resolution Approached the patient first, then websites, then turned to legal proceedings against patient, including engaging cyber investigation services firm, that resulted in resolution

24Document Number© 2015 GARFUNKEL WILD, P.C. Q & A Session

Document Number© 2015 GARFUNKEL WILD, P.C. Thank you for attending Protecting Online Reputations: Surviving and Prospering in the Online World presented by Kevin G. Donoghue Garfunkel, Wild P.C. (516)