“You Lying, Drunken, Bank-Robbin' Pervert!” (Oops…Wrong Guy) What Happens When Internet Background Checks are Defamatory?

One morning Daniel Baker of New Baltimore, MI, received a call from his employer, a defense contractor company. A Human Resources manager asked him if he had been convicted of two counts of embezzlement seven years ago, before he was hired. Baker  – who had never been in trouble – felt panicky and queasy.  

Fortunately, the inquiry was quickly resolved by obtaining a criminal history from the County that showed he was mixed up with someone with his name (including same middle initial) but different date of birth. Although relieved, Baker wondered – even months later – if the issue might affect his future employment elsewhere, or affect him negatively in another way.

Baker was lucky; thousands of others aren’t. They are haunted by erroneous info circulating on the world-wide web, passed around like a game of "telephone" by humongous “Information Brokers” in the form of so-called “background checks.” So, what happens when a background check is wrong, or contains false information – can it be considered libelous or defamatory? Can the provider of the information be sued, or at least stopped from spreading what is not accurate or truthful?

Background checks boil down to two types: either by a private company, or directly from a public source (such as State Police or the FBI). The latter type of check is often referred to as a criminal history record, “jacket” or “rap sheet” — it’s a listing of certain information taken from fingerprint submissions retained by law enforcement agencies of arrests and, in some instances, federal employment, naturalization, or military service. 

Checks from private companies, however, are another matter altogether. These are from corporations amassing huge databases containing a cocktail of “records” derived from public and private sources. The information on such a background check might include all the addresses you’ve lived at, persons you are related to, marital status, social media profiles, current and past employers, criminal histories, driving records and credits scores.

The key is that when it comes to such private companies, their information may not be 100% correct. Such checks are generally a guide, but not absolute. Such background checks are not “primary source” records, as are public records data.

Background checks are big business on the internet. Just  Google-ing “background check” will provide you with dozens of resources. The top five most–visited websites for background checks are: 1) USSearch; 2) Intelius.com; 3) PeopleFinders.com; 4) Abika.com; and 5) eFindOutTheTruth. 

Such companies as the ones above go to great lengths to try to protect themselves from mistakes in many ways, including claiming not to make express or implied warranties of reliability, issuing warnings about the possible unreliability of the information, and even claiming that only the “customer/purchaser/user” (not the person about the about whom the information is written) has a claim for goof-ups. These private mega-data providers also try to use various state and federal laws regarding freedom of the press that apply to news organizations to shield themselves from liability, saying that they are just reporting, i.e. “passing on,” public sources of information.

However, libel and slander laws stretching back hundreds of years may apply to certain cases and give rise to liability for defamation. For example, in Michigan it is considered “slander per se” to accuse someone of a theft crime and felonies, particularly crimes involving sexual misconduct. An individual might not have to go very far to prove liability in such instances, although questions involving proving actual damages will remain. 

Face it: the Information Super Highway is still like the Wild Wild West, where anything goes. Consequently, I often advise clients to “Google themselves” once a year – and to follow up with any offending websites in which their names appear, to see what is being said about them. 

If you are the subject of erroneous info, make sure you document your efforts to stop the spread of it – write and e-mail the company directly, and keep copies of everything you write. Then see a lawyer if it doesn't get fixed.

Ironically, to add insult to injury, many companies actually not only charge you fees for getting the “full report” of a requested background check but also charge you “correction fees” to add, explain, or clarify the information. (I’m not kidding!)  “I went to InstantCheckmate.com and they wanted $30 to clarify that I wasn’t convicted of theft,” said Baker. “I felt like I’d been kicked in the teeth – twice.”

(Richard G. Marcil www.MarcilAttorney.com 586-412-0444 is an attorney in Clinton Township practicing in criminal defense, divorce and family law, civil rights, and personal injury cases, as well as juvenile, probate, real estate and business litigation.)