Online Defamation Part 2

A typical client call begins, “You know, someone posted this ridiculous thing about my business on the internet, and now every time someone does a search, it is the first thing that comes up on Google. What can I do?”

In my last article, I outlined some of the problems inherent in bringing a defamation lawsuit when the remark is made on the Internet. This article will offer some practical suggestions as to legal and extra-legal means for addressing the problem.

In Part 1, I discussed how your legal remedy may be somewhat limited due to the anonymous nature of most internet posts. Unfortunately, this situation has only been made worse by federal legislation.

In 1996, Congress passed the Communications Decency Act, which was primarily addressed to stop the profusion of obscene or pornographic material on the internet. Section 230 of the Act, however, provides operators of websites and other types of “interactive computer services,” immunity from civil liability for defamation for content created by others. In passing Section 230, Congress determined that insulating websites from civil liability would promote the growth of the internet, and outweighed the individual’s right to pursue remedies for defamation.

So, what are your options when someone anonymously posts defamatory content online which injures your business? Frequently, a business that is the victim of a defamatory post may have a good idea as to the identity of the author, be it a rival business or a disgruntled former employee. Can you commence a legal action when you do not have proof of the author’s identity?

You can. Although you cannot sue the website operator for damages, you can include the operator in a lawsuit for the purpose of obtaining discovery as to the identity of the anonymous author, along with a “john doe” defendant who will be identified later as the author of the defamatory content. In addition, there is some precedent in New York for permitting a plaintiff to commence a special type of proceeding to obtain discovery to aid in identifying the author of the defamatory statement before commencing a lawsuit. This legal recourse makes sense in situations where the damages are significant and the potential for recovery against a substantial defendant exists.

The more difficult scenario occurs where legal action is not economically feasible, either because the prospect of recovery is slight, or because of difficulty in proving the statement is defamatory. Many times the statement, while harmful and potentially damaging, may constitute opinion, such as vague or intemperate criticisms of a product or service, which may not be legally actionable.

In these instances, the most cost-effective remedy may be to try to influence the search engine results directly by driving the damaging post down. This can be accomplished by a well-managed social media campaign, which will drive favorable content to higher positions in your search results, and thereby diminish the influence of negative content. There are many reputation management services that one can employ to positively affect your search results while driving negative or defamatory content to the second, third, or fourth page of Google. They can’t get rid of it – – it never disappears, but if you can push it down far enough, it can become practically irrelevant. Although these services can also be quite expensive and may require several months before they produce results, in many instances this approach may be more effective than pursuing legal action.