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Reputation Bankruptcy

Motivation To Discuss Reputation Bankruptcy

  • "75% of US recruiters and human-resource professionals report that their companies require them to do online research about candidates, and many use a range of sites when scrutinizing applicants", recent Microsoft study (via [1])
  • With quickly improving facial-recognition technology, there will be a stark challenge to "our expectation of anonymity in public" (via [2])
  • Viral dynamics of the internet may amplify reputation damage (e.g. search engine rankings)


  • Identity-related content:
  • Pictures, Videos
  • all pieces of content that would reveal the identity of a person [i.e. we believe a general discussion of Star Wars Kid [3] is not necessarily bad; however pieces of content linking Star Wars Kid's real name to the footage are potentially harmful for the person and moreover add very little value]
  • Minors:
  • Content uploaded by minors about themselves or other minors
  • excludes: 25 year-old uploads pictures of when 16 (exception for content of you as a minor poster by another)
  • Reference point: provision to wipe juvenile criminal record (e.g. expungement) [4]

Involved Parties

  • Individual Identified or Depicted
  • Content Creator (Person who creates content i.e. takes a picture)
  • Content Sharer (Person who uploads content to Content Storage/Distribution Platform)
  • Content Storage/Distribution Platforms (Personal Blog vs Facebook)
  • Search Engines
  • Note: some of these parties could be the same person in a given scenario

The Recent Scholarship and Proposed Solutions

  • Law-Based:
  • Anupam Chander: Strengthened tort for public disclosure of private fact
  • Paul Ohm: Law barring employers from firing based on legal off-duty conduct found in social networking profiles
  • Dan Solove: Give legal right to sue Facebook friends where confidence has been breached
  • Peter Taylor: Constitutional right to privacy/“oblivion” allowing more anonymity online
  • Cass Sunstein: DMCA Notice-and-Takedown Model
  • Children's Online Privacy Protection Act COPPA [5]:
    • Scope: "If you operate a commercial Web site or an online service directed to children under 13 that collects personal information from children or if you operate a general audience Web site and have actual knowledge that you are collecting personal information from children, you must comply with the Children's Online Privacy Protection Act." -- too narrow?!
  • Germany considers law to ban employers from mining information on job candidates from social networking sites such as Facebook to protect people's privacy. [6]
  • Code-Based:
  • Jonathan Zittrain: Rating systems that allow you to declare reputation bankruptcy in certain area
  • Victor Mayer-Schonberger: Digital Forgetting/Expiration dates (in “Delete” [7]); "Vanish" [8] - new technology developed by researchers at University of Washington, for electronic messages to "self-destruct" after certain period
  • Market- and Norm- Based:
  • Private companies to defend reputation, e.g. Reputation Defender
  • Educate the public, especially young people
  • Society norms to adapt to new media: "Please don't tweet this" (via [9])
  • Tim Berners-Lee: establish market norm of employers barred from accessing Facebook data of prospective employees


  • Entanglement: who "owns" what information about a person and thus what can be managed / deleted, i.e. reposts of images, comments, wall posts
  • How far to go on the identity "continuum“
  • Authentication > pseudonymity > anonymity (Ardia)
  • Total deletion or selective management?
  • Reputations would be meaningless if they could be subject to a legal right to manipulate (Chander)


  • “The End of Forgetting” NY Times 7/25/10, Jeffrey Rosen (law professor at George Washington University) [10]
  • Web takes away "second chances": "the worst thing you've done is often the first thing everyone knows about you"
  • ReputationDefender a "promising short-term solution", but not enough given fast advances of "facial-recognition technology"
  • "Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You", Eugene Volokh [11]
  • Scope: restrictions on communication
  • "recognition of one free speech exception certainly does not mean the end of free speech generally"
  • "possible unintended consequences of various justifications for information privacy speech restrictions [...] sufficiently troubling"
  • "disclosure" tort - bars dissemination of "nonnewsworthy" personal information that most people would find highly private (some state laws more specific, e.g. "criminal laws forbidding the publication of the names of rape victims"
  • (II)D. Contracts with Children: the "discussion of contracts presupposes that both parties are legally capable of entering into the contract and of accepting a disclaimer of any implied warranty of confidentiality. If a cyber-consumer is a child, then such an acceptance might not be valid" (Source: Children's Online Privacy Protection Act of 1998 [12], 15 U.S.C. §§ 6501 et seq.; Matlick, note 245 infra; Singleton, infra note 251, text accompanying nn.76-79.)