I: Common Sense is Not So Common
Polished black shoes. Dry-cleaned charcoal gray suit. Freshly pressed royal blue dress shirt. Red power tie. I ran through this checklist for every on-campus interview and call back interview this fall. Emails from my Career Services Office reinforced this sartorial splendor constantly. Eventually I began to notice that the CSO included several new items. “Make sure your Facebook and MySpace profiles do not have/reveal anything incriminating about you. Employers will check before an interview.” Come again? The hiring partner of a Vault 100 firm is going to “friend” me?
As incredulous as I was, I began to see this advice echoed throughout a variety of mediums. As TheNew York Times reported: “…recruiters are looking up applicants on social networking sites like Facebook, MySpace, Xanga and Friendster, where college students often post risqué or teasing photographs and provocative comments about drinking, recreational drug use and sexual exploits in what some mistakenly believe is relative privacy.” . More than one recruiter admitted to denying a candidate based on what the candidate’s online profile had revealed. .
Needless to say, eager law students, myself included, cleaned up the posts on their “wall” tout de suite. Unfortunately, a new malevolent (albeit similar) force looms on the horizon, poised to ride in like a horseman of the Apocalypse, bearing perpetual unemployment alongside pestilence, war, famine, and death. . Sadly, unlike the MySpace quandary, this new evil is not based on a specific person’s lack of common sense (“the candidate's Web page had this description of his interests: ‘smokin' blunts’, shooting people and obsessive sex, all described in vivid slang.” ). Further, it is a far more difficult problem to remedy than the mere editing of an online profile.
II: Reputation Pwn3d
Fellow law student procrastinators are likely familiar with the now infamous law student online message-board, AutoAdmit/XOXOHTH ("AutoAdmit" hereinafter). The Washington Post captures the essence of the board in noting: “It contains many useful insights on schools and firms. But there are also hundreds of chats posted by anonymous users that feature derisive statements about women, gays, blacks, Asians and Jews.” . While such vitriol can be ignored, the issue is complicated when the online postings become ad hominem attacks against a specific individual. The reason for this complication is that, as revealed above, employers employ Google and other online methods to find background on potential employees. These internet searches often unmask potentially damaging internet posts, which include “false claims about sexual activity and diseases.” . Power tie or not, it is rather hard to recover from such comments.
The Washington Post mentions a Yale law student who suffered from the inimical postings on AutoAdmit. “She graduated Phi Beta Kappa, has published in top legal journals and completed internships at leading institutions in her field. So when the Yale law student interviewed with 16 firms for a job this summer, she was concerned that she had only four call-backs. She was stunned when she had zero offers.” . While she was not able to prove it was based on the AutoAdmit postings, one cannot help but wonder the ramifications of a tainted Google search.
Despite efforts by victims of the malicious AutoAdmit postings, little seems to be in the way of remedy. The owners of the AutoAdmit site (which, until quite recently, included a third year University of Pennsylvania law student) refused to moderate the message-board. .Google was of no help either. . Even the administration of the University of Pennsylvania Law School was contacted in an effort to temper the content of the internet postings. .
III: Defamation: The Race to the Bottom
Victims of this online libel appear to be between Scylla and Charybdis. There appears nothing can be done in appealing to the posters to stop, for even those interviewed for The Washington Post article did so on the condition on anonymity for fear of future online retribution. . Various third parties with potential control over the situation appear unable or unwilling to affect action. Yet leaving such material on the internet for future employers to unearth is playing with a loaded gun. While one would like to think that employers would possess the common sense to disregard such obviously unsubstantiated vitriol, for some elite firms any blemish on one’s resume is enough to torpedo chances for success.
The silver bullet needed to put down this online beast may exist in tort law. Defamation as a cause of action is familiar to any first year law student, yet becomes quite complicated when applied to the internet. Defamation, simply defined, is “The act of harming the reputation of another by making a false statement to a third person.” . Like any action which can serve to limit free speech/free press, defamation is often controversial and contentiously litigated: “The regulation of defamation is essentially an exercise in balancing two fundamental human rights: the freedom of expression on the one hand, and the right of reputation on the other.” .
The AutoAdmit controversy obviously pits freedom of expression against the right of reputation. Despite this, defamation seems a nearly impossible cause of action to prevail with in dealing with an internet message-board. The first issue is also perhaps the most pragmatic: On AutoAdmit, it is impossible to know who said what. While some internet message-boards do track a user’s Internet Protocol (IP) address, AutoAdmit does not, for fear of lawsuits. . Therefore, no matter how harmful the content of a message, it remains truly anonymous.
Pursuing a claim for internet defamation also raises significant jurisdictional issues. While the readership of AutoAdmit is likely composed of United States citizens, it is reasonable to assume that citizens of other nations frequent the message-boards. Should a non-U.S. citizen make defamatory remarks on a website, do the laws of the United States extend beyond our national borders? . The converse also raises significant international law problems: what happens when a U.S. citizen offends another nation’s defamation laws? . Were nations to acquiesce to each other’s various defamation laws, message-board posters “would need to adjust their content to the most restrictive laws they are exposed to. This would clearly lead to a race to the bottom and valuable online content would be lost.” .
IV: They Check In but They Don’t Check Out
While suits against libelous blogs are now meeting some limited success , the realities of the limited ability to track/identify some internet message-board posters appears to preclude any legal remedy. The anonymous cloak that message-boards provide also renders any possible intervention by third parties equally improbable. It appears little can be done to combat the specter of employment-dashing internet comments.
Despite this perceived impotence, this author cannot help but question the overall detrimental impact of such libel. While a MySpace profile featuring pictures of a drunken spring-break bender in Daytona Beach might reflect that one lacks the common sense/maturity not to put such material in a publicly accessible forum, a message-board “reputation” does not carry such a stigma.
A prospective employer accepting the veracity of such comments at face value is tantamount to accepting the National Enquirer as “news.” What reasonable hiring partner would actually not make an offer to an otherwise qualified candidate based on what a clearly malicious message-board thread stated? “Listen, I know she graduated Phi Beta Kappa and will have a Yale J.D., but you just have to read what these guys are saying about her on AutoAdmit.com.” One might just as well base hiring decisions on whatever happens to be written on a bathroom stall regarding a candidate. Were such a firm to refuse an offer based on an otherwise innocuous Google search, it is undoubtedly a firm one is better off without.
This new form of a resume killer is essentially the cockroach under the kitchen refrigerator. While it may be an annoying pest, it is not hurting anyone. No firm worth its salt should let such information change an employment. Additionally, as revealed above, there seems little in the form of a “Roach Motel” to combat this form of internet defamation. So, for the law students still clamoring for a summer position, don’t let the potential wrath of malcontent message-board posters get in the way of pre-interview checklist. The time is far better spent trying to memorize the interviewing attorney’s biography from the law firm’s website.
 Alan Finder, For Some, Online Persona Undermines a Resume, THE NEW YORK TIMES, June 11, 2007, available at: http://www.nytimes.com/2006/06/11/us/11recruit.html?ex=1307678400&en=ddfbe1e3b386090b&ei=5090
 See: Revelation 6:1.
 Finder, supra note 1.
 Ellen Nakasima, Harsh Words Die Hard on the Web, THE WASHINGTON POST, Mar. 7, 2007, at A01,available at: http://www.washingtonpost.com/wp-dyn/content/article/2007/03/06/AR2007030602705.html
 Nakasiama, supra note 5, at A01.
 BLACK'S LAW DICTIONARY 448 (8th ed. 2004).
 Dr. Dan Jerker B. Svantesson, Borders On, or Borders Around: The Future of the Internet, 16 ALB. L.J. SCI. & TECH. 343, 345 (2006).
 Finder, supra note 1.
 Svantesson, supra note 13, at 351-352.
 See: Melissa A. Troiano, Comment, The New Journalism: Why Traditional Defamation Laws Should Apply to Internet Blogs, 55 AM. U. L. REV. 1447 (2006).