Fake news is not only something used to influence election results; it is also a means some people use to harm their business competitors, restricting their access to financing and discouraging other businesses from dealing with them. This can be particularly problematic given the current cautious approach to financing (or even opening accounts) adopted by Swiss and European banks.
Types of Negative Publicity
In our experience, negative publicity cases come in three broad categories:
Category 1: A, a business counterparty of B, says that B breaches sanctions, finances terrorism, or engages in other illegal or morally reprehensible behavior. A publishes its statements on its website and social media.
Category 2: B discovers that someone has written articles about B on the internet. The articles allege that B breaches sanctions, finances terrorism, or engages in other illegal or morally reprehensible behavior. The articles are then republished by other sources all over the world.
Category 3: A, a business counterparty of B, makes a statement to the press to the effect that B has defrauded A as part of a business deal.
How to Fight Various Types of Negative Publicity on the Internet
How one fights such negative publicity depends on the jurisdiction where the publications take place or where B, the person publishing the negative statements, is located. Here are some examples from our experience.
Negative Statements by a Known Source
Category 1 example: A, a resident of Switzerland, said that B, also a resident of Switzerland and a commodity trader, was financing the Islamic Revolutionary Guard. A’s statement was very harmful to B, whose business depended on regular bank financing in US dollars. B asserted that it did not finance the Islamic Revolutionary Guard. Instead, it had a financial dispute with A, and A sought to exert pressure on B by making these false accusations.
B’s solution to this was to apply to the competent Swiss Court for an urgent interim injunction to compel A to withdraw the publication and restrain A from making any further publications concerning B until a further order of the Court. Swiss Courts grant such injunctions relatively quickly (1-2 working days).
The injunction can then be used in the following ways. Firstly, B can notify the injunction to Google and other search engines so that they remove the publication from their search results. The publication would then be very difficult to find. Secondly, if B does not comply with the injunction, then it may face a fine or a prison sentence for contempt of Court.
If B feels that the injunction is insufficient, it can start proceedings for defamation against A. Defamation is normally something dealt with by civil Courts, but in some countries, such as Switzerland, defamation is also a criminal offense. So the choice is either to sue for defamation in civil Courts or to start criminal proceedings for defamation and seek civil compensation as part of the criminal proceedings.
In the case we dealt with, B both obtained the interim injunction (allowing it to remove the defamatory statements from the internet) and succeeded in obtaining a criminal conviction against A from a Swiss Court. B also obtained compensation for its legal costs incurred in the proceedings.
Negative Statements by an Unknown Source
Category 2 example: This is similar to category 1, except that B (the person suffering from the negative publication) does not know who person A (the initial author of the publication) is.
We had a case where our client, a Ukrainian coal trader, discovered articles about himself on the internet suggesting that he was trading with the so-called Donetsk People’s Republic – something which would be illegal as a matter of Ukrainian law, as well as morally reprehensible (i.e. trading with an enemy). B did not know who the initial author of these articles was. They were first published on the website of what appeared to be a Zurich newspaper – but upon a short investigation, it transpired that the newspaper was fake. The article was then republished in multiple other online publications.
B engaged us to write letters to the contact details mentioned on the relevant websites and demand that the negative articles about him be taken down. Most of the websites did not respond. One responded by sending a message via an encrypted platform (which concealed the author’s identity) demanding payment to a Bitcoin wallet in exchange for the removal of the article.
Having conducted background checks of several publications, we discovered that one was a website owned by a Cypriot company using the services of a Cypriot internet service provider. We, therefore, applied for and obtained an interim injunction in Cyprus, compelling the Cypriot company to delete the publication. Failure to comply with the injunction would result in a prison sentence against the Cypriot director of the company, and therefore the publication was removed.
We then sent the injunction to Google and other search engines saying that there is a court order compelling its author in Cyprus to remove the text, the same text appears in other publications and therefore they should also be removed from the search engines. This way we have managed to take down most of the offending material.
The remaining material was published via certain US companies. Our New York attorneys coordinated local proceedings to seek the removal of the publications, having analyzed defamation laws in different states to select the most appropriate jurisdiction to start with.
An obvious point here is that if there is a publication from an unknown source, one can engage investigators to try to ascertain that source. We have contacts with multiple investigations agencies, including those led by former MI6 and CIA officials, who may be able to ascertain the source of the negative publication.
Negative Statement by a Known Source Relating to a Specific Deal Where That Source Participated
Category 3 publicity is the most difficult. If A says that B defrauded it as part of a specific business deal where A participated, then it is extremely hard to cause A to stop discussing the matter publicly. This could, however, be dealt with in one of the following ways.
Firstly, B could assert a substantive claim for defamation in the appropriate forum. If B is a creditworthy party, this could at the very least make it think twice before publishing material that does not correspond to reality.
Secondly, if there are several people involved, B could pursue A and its associates for lawful or unlawful means of conspiracy to damage B’s interests.
Thirdly, B could argue that the publication breaches A’s confidentiality obligations. These obligations could arise either out of a contract (e.g. if there is a confidentiality clause) or out of the applicable rules governing the underlying dispute (e.g. the LCIA Rules provide that arbitrations conducted under those rules are confidential).
For all three categories of negative publicity, there is also a technical solution called reverse SEO. SEO (search engine optimization) is a technique aimed at having a search result rank higher on the results page of search engines like Google. Reverse SEO is the opposite – having the undesirable search result rank lower on the results page of a search engine, such that the undesirable search result (i.e. the negative publicity about your business) is more difficult to find. This generally involves identifying the keywords that pull up the undesirable search result and then optimizing other websites (with positive news) for the same keywords so they appear higher in the search results than the negative results. Provided that you have enough positive websites to cover the first several pages of Google search results, the negative publicity against you will be much more difficult to find.
Fortior Law is an international law firm specializing in dispute resolution. If you are facing negative publicity, contact us to explore effective solutions. In addition to our global litigation expertise, we can connect you with leading IT firms, investigators, and PR agencies to address adverse publications. For more information or to discuss your case, reach out to [email protected] or your usual contact at Fortior. To discover more about our Cypriot litigation capabilities, contact Evripides Hadjinestoros ([email protected]) or George Antoniades ([email protected]). To discuss our Swiss litigation capabilities, reach out to Xavier-Romain Rahm at [email protected].
