Online reputation: the legal system, a powerful tool for action by Virginie Bensoussan Brulé and Stéphane Alaux
The use of legal processes is making great strides in the field
I therefore asked Virginie Bensoussan Brulé, lawyer, director of the Digital Litigation Department of Cabinet Lexing Alain Bensoussan Avocats, to answer some of my questions.
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Virginie, how is online reputation (or web-reputation or cyber-reputation...) defined in legal terms? How does it differ from reputation (which invokes social control, an external evaluation?
Reputation can be defined as the way in which someone or something is generally considered, whereas e-reputation is the image that Internet users can form of a natural or legal person from information found on the Internet and social networks. In other words, it is the online image of each person, as defined by the Commission Nationale de l'Informatique et des Libertés (Cnil ), which adds that it is maintained by everything that concerns and is put online on social networks, blogs or video sharing platforms, directly by the people concerned but also by third parties. One thing is certain: e-reputation has become a real issue, and everyone must always bear in mind that everything posted on social networks and the Internet remains on the Web, insofar as its memory and the capacity to post data accessible to all are virtually infinite.
How has the legal arsenal that protects the e-reputation of public figures or people/celebrities evolved? And of brands? And how has case law on e-reputation evolved in recent years?
Initially, as the Internet was seen as a new medium, the principles of respect for privacy and freedom of expression governed the legal framework of the Web. But with the appearance of Internet 2.0, that of social networks and the ensuing attacks on reputation, several legislative provisions have made it possible to respond to attacks on e-reputation: to summarise, these mainly come under the provisions applicable to press offences on the one hand, and digital law on the other. As for the main legal advances in this area, they concern the emergence and/or the enshrinement of principles framing the legal rules applicable to the Internet network: essentially the principle of neutrality with regard to the content of web pages; the principle of non-liability of the Internet's technical service providers; the absence of a general obligation to monitor the content of third parties hosted by the technical service providers. These are all major principles that provide a legal framework for e-reputation and social networks in general. I would also add the fact that people targeted by negative, critical or inappropriate comments now have the right to ask for the deletion of "manifestly" illicit content, to request dereferencing under the right to be forgotten and to oppose the processing of their personal data.
This can be risky, in the same way that a right of reply in the press can be misused to amplify malicious statements that are being challenged. Legal protection of e-reputation infringement must therefore be exercised with tact. This is why, although it is always possible to stop or repress attacks on one's e-reputation, the most effective solution is still to reinforce one's vigilance upstream, in particular through the following actions: take stock of the information published on social networks and on the Internet and determine whether the digital footprint left by an individual or a company and its managers accurately reflects their image; regularly update personal and professional profiles, and for companies, put in place a guide to good practice within the company. However, it is essential to know that the individuals or entities concerned have a wide legal arsenal at their disposal in the event of an attack on their e-reputation. Thus, when the infringement can be qualified as insult or defamation, an individual or a company can act on the basis of articles 29 and following of the law of 29 July 1881 on the freedom of the press. Other actions are also possible in criminal law, on the basis of invasion of privacy or online identity theft, and in civil law, on the basis of violation of the right to one's image, or, when the remarks cannot be qualified as defamation, on the basis of denigration.
Many of our clients wonder about the effectiveness of the "right to be forgotten". Are the provisions governing it really effective? Are websites, platforms and, in general, data controllers obliged to respond when this right is exercised?
Consecrated by the Court of Justice of the European Union in a Google Spain decision of 13 May 2014, and more recently by the General Data Protection Regulation (GDPR) of 27 April 2016 in its Article 17 (under the heading "right to erasure"), transposed into French law in Article 51 of the Data Protection Act of 20 June 2018, the right to digital oblivion tends to make each one of us in a way the archivist of our own past. It does not only allow us to forget but to "relive", i.e. to live without having our private criminal record in front of us in Google. In practice, everyone has the right to have their personal data erased as soon as possible. In practice, if this deletion is not carried out or if the controller fails to respond within one month of the request, the data subject may refer the matter to the Commission nationale de l'informatique et des libertés, which will rule on the request within three weeks of the date of receipt of the complaint.
The question is relevant because Article 17(3) of the GDPR provides that the provisions on the right to erasure do not apply "insofar as such processing is necessary for a) the exercise of the right to freedom of expression and information". This effectively raises the question of the right balance to be struck between freedom of expression, the right to information and respect for privacy on the Internet. In this respect, both the European legislator and the Court of Luxembourg make an important distinction between the right to information and the right to maintain information, in other words the right to history. Is the public interest not the arbiter of this debate? Not all information is indeed 'story-worthy' when it concerns people who do not have a public life. Once again, a balance of proportionality must be found between the right of Internet users to access information and the fundamental rights of the person concerned, in particular the right to privacy. These rights prevail, in principle, not only over the economic interest of the search engine operator, but also over the interest of the public in finding the information when searching for the name of the person concerned. This would not be the case if, for example, a public figure were involved, in which case the interference with his or her fundamental rights would be justified by the overriding interest of the public in having access to the information in question when searching for that person's name.