E-Reputation Law - a case study on e-reputation

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E-Reputation Law

Destructive reaction: can I make a harmful message disappear?

Though it may be a somewhat radical solution, obtaining the removal of a message or making it disappear can limit its impact.

Prior to examining the requirements for a ‘destructive’ reaction, it is worth recalling that the message is merely the expression of an idea. Removing the message cannot make the idea disappear, such that a new message embodying the same idea could appear at any time, perhaps stronger than before.

In terms of e-reputation, the removal of messages can entail significant risk: for one, the disappearance might only be temporary and thus useless; moreover, it might backfire and be extremely negative for the company’s e-reputation.

Removal must therefore only be chosen after an in-depth analysis of the content of the message, of its location on the Internet, of its author, of the desired result and of the identifiable risks.

(a) Content: is the harmful message unlawful?

A first question that the company might wish to examine is that of the lawfulness of the harmful message, in the light of the judicial but above all extrajudicial possibilities that become available in relation to unlawful comments.

(i) (Limits to) freedom of expression

For the assessment of lawfulness of a given message, one must take into account the right to freedom of expression, for which Article 10 of the European Convention on Human Rights  [Note: available online.] provides:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. […]
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, […] for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence […]
(emphasis ours)

Article 11 of the Charter of fundamental rights of the European Union  [Note: available online.], to be read in conjunction with Article 52, provides for similar rules.

The principle of freedom of expression can also be found in Article 19 of the Belgian Constitution:

The freedom of religion, that of its public practice, and the freedom to express one’s opinions in all matters, are guaranteed, except for the punishment of offences made on the occasion of use of these freedoms.  [Note: Rough translation.
French text: "La liberté des cultes, celle de leur exercice public, ainsi que la liberté de manifester ses opinions en toute matière, sont garanties, sauf la répression des délits commis à l’occasion de l’usage de ces libertés."
Dutch text: "De vrijheid van eredienst, de vrije openbare uitoefening ervan, alsmede de vrijheid om op elk gebied zijn mening te uiten, zijn gewaarborgd, behoudens bestraffing van de misdrijven die ter gelegenheid van het gebruikmaken van die vrijheden worden gepleegd."]

If in principle ‘everyone has the right to freedom of expression’, one may therefore restrict the use of this right if all of the following conditions are fulfilled:

These rules apply irrespective of the kind of entity that limits freedom of expression (be it a public entity or a private entity)  [Note: ECtHR, 29 February 2000, Fuentes Bobo v Spain, case 39293/98, §38 (available online, in French).] and irrespective of the nature of the message  [Note: ECtHR, 7 December 1976, Handyside v United Kingdom, case 5493/72, §49 (available online); ECtHR, 24 February 1994, Casado Coca v Spain, case 15450/89, §35 (available online); ECtHR, 24 February 1997, De Haes & Gijsels v Belgium, case 19983/92, §46 (available online).].

Article 10.2 of the European Convention on Human Rights expressly mentions that one of the restrictions to freedom of expression can be the protection of reputation.

There are two main sources of harm to reputation: racist and negationist statements on the one hand, and defamatory and injurious comments on the other hand. This website focuses on the second category.

(ii) Defamatory statements (Articles 443-444 of the Belgian Criminal Code)

Under Belgian law, there is defamation in the case where a person makes a public statement in which he or she attributes to another a specific fact of a nature to harm such other person’s reputation and does so with malicious intent.

Belgian law further makes a distinction between calumny (laster / calomnie) and defamation in the strict sense (eerroof / diffamation) based on the criterion of proof: there is calumny where no evidence of the specific fact is brought, while there is defamation where proof of the specific fact is legally impossible or inadmissible  [Note: Articles 443-444 of the Criminal Code (consolidated version on JUSTEL: in French; in Dutch).].

The requirements of publicity, of malicious intent and of proof deserve to be explained in further detail.

For the criterion of publicity of the statement, the distinction we made previously between public and private means of communication is of particular relevance (see the issue of the definition of electronic mail). It will therefore be difficult to argue that a private message sent by a member of a web forum to another is defamatory, whereas an article published on a blog that is publicly accessible will be deemed to be a public means of communication.

The malicious intent will necessarily depend on the manner in which the harmful message is presented and on the work that led to its publication. If the message is clearly harmful to the company’s reputation, the company can claim that there is a presumption that the publication was made with malicious intent  [Note: A. LORENT, ‘Atteintes portées à l’honneur ou à la considération des personnes’, in P. CHOMÉ, O. KLEES & A. LORENT (ed.), Droit pénal et procédure pénale, Brussels, Kluwer, 2003, p. 48.]. However, it will be possible for the author to claim that he or she acted in good faith if he or she was pursuing a legitimate objective, if there was no personal animosity towards the company, if the opinion was voiced in careful and measured terms and if the background research was of a certain quality  [Note: A. LORENT, ‘Atteintes portées à l’honneur ou à la considération des personnes’, in P. CHOMÉ, O. KLEES & A. LORENT (ed.), Droit pénal et procédure pénale, Brussels, Kluwer, 2003, p. 48.].

Finally, the question of proof allows one to make a distinction between calumny and defamation in the strict sense. Calumny concerns the case where the person does not prove the alleged fact (for instance if the factory in the photo has no link whatsoever to Janssens-Quidam). In the case of defamation, on the other hand, the person is prevented from proving the fact, either because such proof is legally impossible or because the relevant evidence is inadmissible (for instance if bringing such evidence would infringe upon the right to privacy of a natural person or if the alleged facts have been time-barred). In practice, companies are therefore more likely to face calumny than defamation.

For instance, one could argue that there is calumny if a consumer states in a blog article on the Internet that Janssens-Quidam is guilty of child labour practices and of using real cat fur, with the aim of leading consumers to despise Janssens-Quidam, without however being capable of proving the veracity of the allegations.

(iii) Wilful disclosure (Article 449 of the Belgian Criminal Code)

While the prohibition examined previously relates to wilful statements regarding unproved facts (i.e. defamation in the broad sense), Belgian law also provides for penalties in relation to wilful statements regarding proved facts.

Indeed, pursuant to Article 449 of the Belgian Criminal Code, there will be wilful disclosure if any person makes a public statement in which he or she attributes to another a specific and proved fact of a nature to harm such other person’s reputation, without this being on grounds of public or private interest but solely with malicious intent.

(iv) Insult (Article 448 of the Belgian Criminal Code)

Finally, the Belgian Criminal Code provides for penalties in the case of the public insulting of any person with malicious intent. One could for instance consider that there is ‘insult’ within the meaning of the Belgian Criminal Code if someone writes ‘you’re a bunch of crooks!’ regarding Janssens-Quidam.

(v) Relevance of the criminal penalties

These provisions of criminal law provide for penalties (criminal fines and imprisonment)  [Note: Defamation in the strict sense and calumny: eight days to one year of imprisonment and fine between 156 EUR and 1200 EUR;
Wilful disclosure: eight days to two months of imprisonment and/or fine between 156 EUR and 2400 EUR;
Insult: eight days to two months of imprisonment and/or fine between 156 EUR and 3000 EUR.]
for a wide array of statements that an unhappy customer might make in relation to the company. However, these criminal penalties are based on the assumption that a company wishes to get involved in criminal proceedings, which requires first a complaint and then public prosecution. This mechanism is incapable of providing an immediate (or even quick) response to the harmful message. Moreover, these offences are deemed to be ‘press offences’ if they are made in writing (as will be the case on the Internet  [Note: Cass. 6 March 2012, P.11.0855.N/2, unpublished (available online, in Dutch).]), such that the Belgian Cour d’assises / Hof van Assisen has jurisdiction over such proceedings in the current state of Belgian law. This further slows down the entire process, amongst other things because this criminal court features a jury.

In practice, therefore, it is unlikely that a company would even think of filing a complaint against the author of the harmful message.

It is nevertheless useful to keep these rules of criminal law in mind, as evidence of unlawfulness can open up extrajudicial possibilities, especially if the company sees the removal of the harmful message as the ideal solution.