Six Things to Consider Before Filing
an Internet Defamation Lawsuit
January 2015
Strategies for Stopping
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The Online Reputation & Brand Protection Coalition’s mission is to help businesses
protect their online reputations and brands online. The Coalition aims to fulfill its
mission by educating businesses on how to protect and defend their reputations and
brands online and advocating for increased protections and more effective remediation
options for businesses.
Specifically, with respect to education, many businesses today are struggling because
they do not understand how to best protect and defend themselves against online
reputation and brand attacks, and there is presently a lack of quality educational
materials and resources for businesses to turn to help understand and address these
problems. To address the absence of these resources, the Coalition is committed to
providing resources to businesses with the most up-to-date information designed
to explain, prevent, and help businesses ultimately eradicate the problem of online
reputation and brand attacks.
The Coalition provides its members with whitepapers created by the experts who
regularly handle online reputation and brand attacks around the world addressing
common reputation and brand problems which businesses are facing today.
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ABOUT THE ONLINE REPUTATION & BRAND PROTECTION COALITION
Whitney C. Gibson
The Online Reputation & Brand Protection Coalition is a non-profit organization dedicated to helping
businesses protect their reputations and brands online. The Coalition is led by internet brand protection
experts Whitney Gibson and Chris Anderson and includes a variety of multi-national advisors comprised
of experts, business representatives, attorneys, educators, and other professionals.
Co-Founder, Co-Chair of Board of Directors
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Chris Anderson, PH.D.
Co-Founder, Co-Chair of Board of Directors
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Six Things to Consider Before Filing
an Internet Defamation Lawsuit
A key element
of the lawsuit is
the request that
the court declare
the statements
defamatory.
Many businesses struggle with handling online reputation attacks that can hurt the
public’s perception of them. Competitors, ex-business partners, ex-employees
and others with motives to hurt the business may post disparaging information
about a company online, which can cause serious damage. This behavior has
resulted in a significant rise in internet defamation cases. But before filing such
a lawsuit, the business and its legal advisers need to think through key issues to
balance the cost and risks of a lawsuit versus the likelihood of success.
1. Does the online criticism come from someone with an ulterior motive?
Internet defamation lawsuits are not an appropriate response to legitimate
customer complaints. Complaints based on actual customer opinions are not
actionable—and such customer complaints typically do not cause significant
damage. Instead, legally viable cases are the ones filed against someone who
has posted false information with an ulterior motive to harm the business. Such
troublemakers may include competitors, ex-business partners and disgruntled
current or former employees.
2. Who caused the harm?
Pursuant to Section 230 of the Communications Decency Act, most interactive
websites (e.g. consumer comment sites and open forums) are immune from
liability for content created by a third party, unless they actively edit the content.
Because the law does not allow the defamed company to hold the website liable
and because the person causing the harm will typically mask his or her identity
using a screen name, it is necessary to use a cyber investigator, a subpoena or
a combination of the two to identify the anonymous author of the disparaging
remarks. A cyber investigator can provide details that may enable the company to
detect the author’s motivation and identity, as well as information on the power of
the content’s link in search rankings.
The cyber investigator may be able to provide contact information for the author,
or lawyers may need to turn to a series of subpoenas: one to produce the internet
protocol address and a subsequent subpoena to the internet service provider
to learn the internet subscriber’s name. Once investigators identify the author,
litigants can name him or her as a defendant in a lawsuit, and the lawyer can try to
obtain court orders stating that the post contains false and defamatory information.
The lawyer may be able to obtain such a court order through pursuing the lawsuit
to a judgment, or by agreement.
A key element of the lawsuit is the request that the court declare the statements
defamatory. If the company and its lawyer can convince the court that the posted
content is false and causing harm, the judge can, in most cases, issue a court order
requiring the poster to remove the relevant statements. When a lawyer presents a 3
Six Things to Consider Before Filing
an Internet Defamation Lawsuit
court order to the website, most websites will remove the offending content.
Furthermore, search engines such as Google will typically honor these court
orders and de-index the links to the offending content, so that it no longer appears
in a search.
In internet
defamation cases,
it is difficult to
compel websites
or search engines
to remove content
after the statute of
limitations expires.
3. Does the victim need to prove damages?
A defamation plaintiff must suffer actual, identifiable harm as a result of the
defamatory publication. Many states recognize what is known as defamation
per se, where damages are presumed, but this requires that the defamation fall
into certain categories that are considered defamatory “on their face” (such as
charging the party with committing a crime or injuring them in their business or
profession). In other cases, the attorney may need to prepare to prove concrete
losses like cancelled orders, lost customer accounts or other actual damages. This
is important not only to win the case in the end, but may be necessary to prove
at the beginning of the litigation. Many states have laws to protect public rights
of free speech from a disfavored type of lawsuit, called a strategic lawsuit against
public participation, or “SLAPP.” These protective measures are intended to
prevent companies from silencing their critics by burdening them with the cost of
a legal defense, and are called “anti-SLAPP laws.” Failure to prove actual damages
is the most common reason that plaintiffs do not survive anti-SLAPP motions under
such statutes.
4. Act quickly.
All states impose “statutes of limitations,” or time limits, in which a plaintiff must
bring a libel or slander (i.e. defamation) claim. In many states, the injured party has
only one year to act, while others may allow three years or more. This abbreviated
time period can cause a host of problems if a defamed party does not act quickly.
In internet defamation cases, it is difficult to compel websites or search engines
to remove content after the statute of limitations expires. Additionally, the longer
a party waits to take action, the less likely it is that the internet service provider
will still possess relevant data. Some victims of defamation initially do not engage
legal assistance. If they wait too long and the problem persists, they may find that,
when they finally decide to hire an attorney, the statute of limitations already has
expired.
5. Find out where you can file a suit (venue) and what difference it might
make.
Often, internet defamation cases, the victim and the wrongdoer are in different
states; or the company victim may have business, and suffer harm, in several 4
Six Things to Consider Before Filing
an Internet Defamation Lawsuit
Businesses should
keep in mind that
different specialists
may have different
perspectives and
solutions – for
example, the
approach taken by
an internet attorney
versus a cyber
investigation group
may be different.
states. Different states have differences in the law they apply to defamation, to
defamation defenses, and regarding whether and where suits may be filed in the
state (venue statutes). If a lawsuit is an option, an attorney should evaluate the
venue choices available to the business in consideration of the facts of the case,
and determine if one available venue is more advantageous than another for the
case.
6.Are there easier methods to stop online attacks and remove the
defamation?
Each defamation case is unique. When evaluating a case, businesses should
consider if there are easier or more efficient ways to solve their problems and
remove harmful content. Often this requires consulting with professionals who
specialize in this area, who can typically provide realistic options. Businesses
should keep in mind that different specialists may have different perspectives
and solutions – for example, the approach taken by an internet attorney versus a
cyber investigation group may be different. Therefore, it is important to consider
all options, especially because each specialist may not even realize the potential
superior options another professional might be able to assist with in a particular
situation. Thus, by using the resources provided by the Coalition, a business can
gain insight into the various potential solutions for its issue.
For instance, many websites will remove defamatory statements if those
statements violate their terms of service. In other instances, approaching the
person who posted the statements through a demand letter (or by other means)
and convincing him or negotiating with him to remove the damaging content can
be effective.
While every internet defamation case is fact-specific, considering each of the
above questions or recommendations is important before bringing a claim for
online libel or slander.
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