Let’s say that anybody could write comments on your Web site that were visible to third parties and that you couldn’t prevent it. Those comments might include links to competitive Web sites or products, defamatory statements, or just unwelcome negative comments. And let’s say that your only recourse, if you felt the comments were inappropriate, would be to e-mail a complaint to an enormous media company that might or might not agree that the comments should be removed.

Well, if you download and install the Google Toolbar, and navigate to your Web site, you can find out if that is happening on your site right now.

A we discussed in October at our 15th annual seminar (“New Media, Technology and the Law:
Issues on the Near Horizon,” Google recently debuted the “Sidewiki” function on the Google Toolbar. Google touts the Sidewiki functionality as allowing users “to contribute helpful information next to any  webpage.” But brand managers and Web site owners may not think that some of the information that is contributed by users of the Sidewiki functionality is “helpful” at all.

You can see a graphic depiction of what a Sidewiki entry looks like on the Google Sidewiki page.  When the Sidewiki button on the Google toolbar is clicked, a sidebar opens to the left of the Web page and displays the comments entered by Sidewiki users. Google has a Sidewiki “content policy” that prohibits spam and malware, threatening, harassing and sexually explicit comments and the like. But commercial content in general is not prohibited, only “unwanted promotional or commercial content” (which is included in the definition of “spam.”) It is not clear by whom the promotional or commercial content must be “unwanted” in order for it to constitute spam, i.e., the Web site owner, other users (all or any of them), or Google itself.

Some Web sites have already been the subject of negative Sidewiki comments. In this article, “Google Sidewiki: Brands under Attack,” examples are given of Sidewiki comments on the Microsoft and Apple Web sites: Microsoft is described as “useless” and “crap,” and Apple is slammed for “lying” and shipping products with “severe bugs.”

A Web site owner is given few options to respond to unwanted content. Web site owners can claim their Web sites through the Google Webmaster functionality and gain access to the top comment spot on Sidewiki with respect to their sites, where they can add whatever content they wish. Other user comments are sorted according to a secret Google algorithm that takes into account, among other things, the responses of Sidewiki users to the question of whether or not a particular comment is “useful.” There is a link for reporting “abuse,” but the link leads to a form that is available to any Sidewiki user; it does not appear that Web site owners themselves have any priority in communicating concerns to Google.

By the way, Sidewiki is not the first and only service of its kind. Web sites such as Draw Here, Fleck, Trailfire and MyStickies have offered Web site annotation capability for a few years, but none of these services has gotten wide usage. One annotation startup, ReframeIt, claimed recently that Google appropriated its patented technology in creating Sidewiki.

Right now, Sidewiki users appear to be relatively few. In order to see Sidewiki comments, you must install the Google Toolbar and its enhanced features. But Google being the media giant that it is, Sidewiki may have the capacity to bring Web site annotation into mainstream use. In that case, Web site owners may wish to have a plan in place to proactively deal with the appearance of unwanted Sidewiki comments. We will save for another day consideration of whether Sidewiki might be challenged via litigation (it presents issues that may be familiar from the “Gator” litigations of several years ago) or technical blocking of the Sidewiki functionality.

In lieu of litigation (which may be costly, and have uncertain results) or technical blocking efforts (which do not currently appear to be well-developed), we recommend, at the least, a measured public relations response:

• Be informed: Download and install the Google tool bar, and monitor any comments that may appear on your site.
• Consider using Webmaster’s “top comment” feature to post favorable information about your company or brand.
• Get appropriate staff involved in monitoring and responding to undesirable comments.
• Set a policy in advance on how to respond to negative comments, and designate who in the  company has authority to respond.
• Discourage response by personnel who are not expressly authorized to respond.
• Avoid anonymous responses.  Keep in mind the recently updated FTC Guidelines on Endorsements: “… bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” This can equally apply to comments made on Sidewiki.  Also keep in mind the settlement that the New York State Attorney General made with LifeStyle Lift over favorable anonymous comments posted by employees on blogs and in forums.