The Internet is rapidly overtaking traditional advertising media as the most important marketing tool for many retail brands. But the rapid, open communication that makes “social media” such a powerful marketing tool can be a double-edged sword. A critical review, customer complaint or harmful press item that goes “viral” can instantly and irreparably destroy years of reputation-building—and experience shows that once such damage is done in the court of Internet opinion, it is all but impossible to reverse.

Unsurprisingly, then, companies are always searching for ways to prevent the dissemination and spread of harmful material over the Internet. Where the content at issue contains trade secrets, copyrighted material, or other well-codified intellectual property, there are established legal procedures to have it removed. But where the content is merely harmful—even if it is false and presented in a manner that defies all conventional business ethics—targeted companies may find themselves without legal recourse. The law in this area seeks to strike a balance between the need to provide a free flow of information and the need to protect reputation and goodwill. A recent case from the federal court in the U.S. District Court for the Eastern District of New York, Ascentive, LLC v. Opinion Corp., demonstrates the complexities inherent in assessing that balance.

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