In-House Counsel Guidebook: How to Handle Internet Defamation and Online Reputation Attacks August 2014 | Page 19

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defamation and trademark infringement, violating the Lanham Act.
The Court subsequently denied the competitor’s motion to dismiss
the case. NTP Marble, Inc. v. AAA Hellenic Marble, Inc., 2012 U.S.
Dist. LEXIS 93856 (E.D. Pa. Feb. 24, 2012).

Proving Damages
If an attacker has deep pockets or insurance that could cover them
for liability resulting from defamation, there are options for proving
damages. Of course, in-house counsel can use traditional methods
of using financial data to prove lost profits. When disparaging
material cannot be easily removed, you might consider hiring an
expert who can estimate the costs of what it would take to remove
all of the damaging content posted by the online attacker. In many
cases when a business is attacked online, the information can spread
so far that it may be difficult to remove, and the best solution may be
online reputation management (ORM) tactics to “bury” the content.
Under federal and most state laws, courts have routinely held
that a plaintiff is entitled to recover costs incurred in performing
various forms of damage control, in response to a defendant’s false
statements. Applying this principle, there is a strong argument
that the victim of damaging content online should be able to be
reimbursed by the defendant for expenses paid to an ORM firm to
push the harmful information down the search results on Google
and other search engines. Typical costs to clean up the damage can
range from $50,000 to $125,000 per search term. In many instances,
somewhere between 20 and 60 search terms – far beyond the name
of the specific person or business – need to be restored.

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