Redefining Santorum: The Republican Candidate’s Options to Rebrand his Internet Identity

Submitted by Jordan A. Arnot on January 9, 2012 - 19:16

In a 2003 interview with an AP reporter, then-Senator Rick Santorum made controversial comments about homosexuality. Without repeating the statements, suffice it to say that Santorum’s comments angered many, so much so that advice-columnist Dan Savage and his readers were inspired to action.

In response, Savage’s readers crafted a less-than-savory, very graphic, definition of the word “santorum” which was not only published in Savage’s weekly column, but also prominently displayed on a web page which was created solely for the purpose of “spreading santorum.” Because many took the Senator’s words as a personal assault, this probably seemed like a harmless prank – parody the Senator and respond to his words with their own hyperbole to give Santorum a taste of his own medicine so to speak.

What Savage and his readers could not have foreseen, much less expected in their wildest imagination, was that nearly ten years later, the spreadingsantorum.com (and its mirror santorum.com) web page would be the number one result, or among the first results, when running Internet searches that include the word “santorum.”

An Outspoken Opponent and Proponent of Gay Rights Pitted Against One Another on Google’s Center Stage

Since 2003, a whole industry has arisen around “search engine optimization” to artificially push results higher in response to search queries by attempting to manipulate Google and its competitors’ algorithms. What Savage and his readers did, however, was not artificial. In fact, these search results were completely “organic” and Google’s algorithm recognized them as the most relevant hits in response to searches including this term based on a variety of factors, one of which is alleged to be the number of sites linking to a particular page.

In 2006, Santorum lost his bid for reelection - and some speculated the loss was due in part to his negative “Internet identity.” Many questioned then why the politician didn’t counter this proactively - whether by embracing the methods developed in SEO or otherwise.

Maybe Mr. Santorum thought that, like in real life, the story would get buried. That over time, people would forget all about it. The spreadingsantorum site sat dormant for many years, as did Mr. Santorum’s political career, and so it appears, he did not make it a priority to address.

In fact, Mr. Santorum appears to have taken no action whatsoever in response, even refusing Dan Savage’s offer to take down the site if the politician would donate $5 million to the gay marriage advocacy group “Freedom to Marry.”

So as could probably be expected, when Mr. Santorum prepared for and ultimately announced his candidacy for the republican Presidential nomination in June of 2011, the media pounced on his “Google Problem.”

Santorum’s Problem is Misunderstood

Initially Santorum blamed Dan Savage stating in a Roll Call interview, "It's one guy. You know who it is. The Internet allows for this type of vulgarity to circulate. It's unfortunate that we have someone who obviously has some issues. But he has an opportunity to speak." But in reality, this would never have gained the search-engine ranking it has if there had simply been “one guy” involved. Google’s results require a critical mass to ensure the most relevant sites are reflected in the results and the company’s algorithm is ever evolving to ensure just that.

Then, Santorum took aim at Google in a September 2011 Politico interview stating: “If you’re a responsible business, you don’t let things like that happen in your business . . . to have a business allow that type of filth to be purveyed through their website or through their system is something that they say they can’t handle but I suspect that’s not true.” In fact, Google is perfectly capable of removing content, but it is the company’s policy to do so only in the case of illegal content and violations of its terms and policies; neither of which appear to be implicated here. Rather than present an inaccurate representation of the web and open the floodgates to everyone seeking to censor the Internet, Google has steadfastly maintained its objectivity while reflecting the most pertinent and relevant results. Something that is not only essential, but imperative to the search engine’s success.

While this is clearly a definition problem – pitting how Santorum defines himself and how others define him (whether in light of his past comments or Internet pranks), this is NOT a “Google” problem, much less Google’s problem, nor is it a Bing problem, a Rick problem, or a Savage problem. Santorum voiced a problem with homosexuality, and those that disagreed voiced their opposition. While this is arguably not the cleanest match, it is nothing more than a political protest that has maintained its campaign for nearly a decade.

Santorum’s Options

Then, what is the politician to do?

Practical Remedies: Ask Nicely

Google’s advice to contact the webmaster of the page directly on the basis that “once the webmaster takes the page down from the Web, it will be removed from Google’s search results through our usual crawling process” is likely not an option in light of the fact that Dan Savage already offered to remove the site if Mr. Santorum would make a substantial donation to a gay-rights charity and Mr. Santorum allegedly did not respond, not even with a counteroffer. Now, after all this time has passed, it’s not just Savage’s site that poses a problem and the removal of that site alone would not address the thousands (if not millions) of other pages referencing the definition.
Legal remedies: Defamation, False Light, Infringement, Dilution or Cybersquatting

Moreover, the Candidate’s legal remedies are limited. On the surface, this is a matter of free speech and Savage is merely exercising his First Amendment right. Moreover, defamation (libel/slander) would be difficult to prove in light of the fact that ostensibly, Savage and his readers have simply created a word and defined it. Facially, there is no “false” statement – the basis of any defamation claim. Ultimately, this cause of action would turn on the public’s “reasonable” interpretation: if the definition cannot be reasonably interpreted as intended to convey actual facts about a person, it would be deemed opinion at most, but certainly not a false statement and no defamation cause of action would lie. If, however, a reasonable person would understand that the definition actually refers to Mr. Santorum, a cause of action may lie in certain jurisdictions which recognize “defamation by implication.” However, public figures have traditionally enjoyed less protection under defamation law as the standard is considerably higher– and Mr. Santorum would have to show there was actual malice or reckless disregard of the truth.

Where defamation is intended to protect an individual’s reputation from false statements, a similar right to privacy recognized by some jurisdictions which is known as “false light” is intended to protect an individual’s emotional well-being based on the impression created by statements (i.e. not technically false, but misleading statement). However, this tort is generally not available for public figures. Even so, it would be hard for Mr. Santorum to rely on his “Right to Privacy” when he lambasts that right and advocates for severely limiting it in the same interview which instigated this feud in the first place.

If the politician sold goods or services in interstate commerce in connection with his last name prior to the creation of the offending website, he may be able to claim senior trademark rights in his own name (a la Sarah Palin registering her name in connection with “Information about political elections” and “providing a website featuring information about political issues”). However, trademark infringement and dilution claims would be difficult to maintain in light of the fact that Savage’s site does not appear to use the name “in commerce” – mere registration of a domain name is insufficient grounds to support these causes of action, there are no goods or services rendered on the site, the site does not appear to generate advertising or other revenue, and the only direct links to other commercial websites appear to be parody or legitimate news coverage or commentary. This lack of profit or intent to capitalize on the domain name would similarly preclude a Cybersquatting claim or an action under the Uniform Domain Name Dispute Resolution Policy. That said, a thorough review of Savage’s website would be warranted and a watchful eye should be maintained should it ever be put to a commercial use.
Technical Remedies: Search Engine Optimization
Thus, as outlined above, Mr. Santorum's best bet may be a technical remedy - embrace the web and search engine optimization. While the politician was optimistic that over time the story would get buried on the Internet, that is only the case if websites referencing the term "santorum" do so without also referencing and linking to the definition - thereby further supporting its position at the top of the results page. Santorum and his supporters need as many clean links to his official site as possible but at this point, the damage may already be done - in the almost full decade since Savage created his site, countless references have been made to the definition and there's no sign of them letting up. Moreover, Google has refined its algorithm to account for "google-bombing" and the artificial inflation of results so they will need to be genuine, legitimate sites. Regardless, Santorum faces an uphill battle and is clearly coming from behind in this race.