I assume you agree, since by now the majority of businesses we have surveyed report that, if you are like them, a disgruntled employee, a competitor or an unhappy customer has taken to the internet to damage your reputation.
Most reports agree, things are about to get much worse. We are at the dawn of a new “technology” called deep-faking. In a nutshell, deep-faking is taking a series of images or a video of a person, digitizing that person’s facial characteristics and expressions, and then putting that “person” on another body and in circumstances that are unlimited. You can research this phenomenon on the internet by searching for Deep Fake Video Production, or you can view this seven-minute, very tame discussion on Ted Talks.
In essence, all an ill-wisher needs to do is hire a production company to create the video, and he or she can have you dancing naked in the moonlight in downtown Hamburg in winter. Or worse.
The reason we can be certain that this infection will spread is because defamation works. It always has. Throughout history, it has been classified as gossip, chinwag, tattletale, slander, libel, character assassination and a multitude of other unsavory names. In the end, the idea is to damage the object of the lie, and it works.
Defamation is inherently a lie. If I can go back to my grad classes in media law, there are four criteria that must be met before a defamation action can be taken: identification, publication, defamation and damages. Those four seem simple on their faces, but they are not. We can talk about what each means another day, but they are important to know. For example, somebody may seek to defame you, give you a different-but-similar name and change the name of your town by one letter, but if the intent (another great word) is to identify you, identification may be accomplished, even though disguised.
Modern politics is a good place to get an understanding of what is coming down the pike. You may have heard former Senate Majority Leader Harry Reid defend his admittedly false and defamatory accusation that then-candidate Mitt Romney had not filed his tax returns for 10 years. He can do that because he did it on the open Senate floor, and it’s protected. So are House Intelligence Committee Chairman Adam Schiff’s accusations against Trump.
This idea of protection against defamation actions extends well into the business world, as well. Don’t get bored, this will be quick. In the landmark U.S. Supreme Court decision New York Times v. Sullivan, the Court said people that are “public figures” should expect to be targets and must meet a higher standard of evidence than do “normal” people. (In my opinion, just another assertion of two sets of laws.)
The new standard was called Actual Malice, which, according to my old media law professor, Ted Frederiksen, “is not malice, actually. It is knowing falsity or reckless disregard for the truth.”
This is not a distinction without a difference, since such words as malice, public, private, knowing, truth, etc., are each debatable in their own right. What has happened is that public figures, including current and past political, media, commercial and entertainment figures, have been driven to the conclusion that “actual malice” and “public figure” are not new standards; they are new exclusions. As Romney and others discovered, you can bitch all you want, but you can’t get a hearing. As Reid famously responded when confronted with his lie: “Well, he lost, didn’t he?”
This has had the effect of now being “open season” on anybody that can be labeled as a public figure, and, as we saw in the case of Nicholas Sandmann, the kid that got skewered in the press for standing up to a native activist in Washington while Sandman was on a school trip, even a minor from rural Kentucky can suddenly be cast as a public figure and worthy target, if only the media decides to cast him that way.
That means the media can do what it will with anybody’s reputation, thus neutering the very laws against defamation that the media inspired in the first place. As Mark Twain famously noted: “Do not fear the enemy,” Twain said, “for your enemy can only take your life. It is far better that you fear the media, for they will steal your honor. That awful power, the public opinion of a nation, is created in America by a horde of ignorant, self-complacent simpletons who failed at ditching and shoemaking and fetched up in journalism on their way to the poorhouse.”
Twain knew what he was talking about. He was a journalist.
Enough of the mainstream of journalism. Now we are faced with a compounded threat on the internet. For example, now we have a much greater task than simply worrying about the identity of the person defamed. We can’t identify the defamer. It used to be that a publisher (the typical defendant in a defamation suit) had an address, a phone, a business license, etc. You could tell who and where he was.
Not so, today. Today the publishers have been able to exempt themselves from liability – another story for another day – and they declare the writer as the publisher. This means the old-style publishers, being protective of their businesses, would review material before putting their names on it. Today, any over-edible-cannabis-eater with a twit account can attack and damage anybody that won’t provide a job, anybody that did provide a job or anybody looking to provide jobs. All they require is a piss-off and 10 minutes. Five if they don’t need spellchecker.
I would be very impressed if our current national politicians could put aside their pie fight for a week or so and take care of some serious business. In my opinion, internet turpitude, fake smiley guys and sociopathic character assassins qualify.