Many businesses struggle with handling online reputation attacks and controlling public perception. Competitors, ex-business partners and other disgruntled parties 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 on behalf of a client, an attorney needs to think through a number of questions.
Lawyers must weigh the damage caused to a client by an online attack against the potential client’s likelihood of success, the financial costs to pursue the claims and the possible risks moving forward. When evaluating potential Internet defamation, here are several issues to consider.
1. Does the online criticism come from someone with an ulterior motive? Most businesses that file Internet defamation lawsuits are not responding to legitimate customer complaints. Customers usually base their complaints on opinion, making their complaints not actionable; also, such customer complaints typically do not cause significant damage.
Instead, most actionable cases litigants bring are against a party that has posted false information with an ulterior motive of harming the business, such as competitors, ex-business partners and disgruntled former employees.
2. Who caused the harm? Pursuant to §230 of the Communications Decency Act, most interactive websites (e.g. news websites, blogs and forums) are immune from liability for content created by a third party, unless they materially edit the content in some manner.
Therefore, it is necessary to use a cyber-investigator, a subpoena or a combination to identify the anonymous author of the disparaging remarks. A cyber-investigator can provide information on the author’s motives and the power of the content’s link in search rankings.
The cyber-investigator may be able to find information on how to reach 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 (via agreements or judgments) that state the post contains false and defamatory information.
Essentially, a lawyer needs to ask the court to declare the statements to be defamatory. If he or she can prove the relevant content is false and causing harm and the court agrees, the judge can issue a court order requiring the poster to remove the relevant statements. When a lawyer presents a 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 remove from their search indices links to the offending content.
3. Does the client need to prove damages? A defamation plaintiff must suffer actual, identifiable harm as a result of the defamatory publication. There are many ways to prove damages, but Texas courts recognize what is known as defamation per se, where damages are presumed.
According to the Dallas Court of Appeals in 2011′s Main v. Royall, statements are considered per se defamatory if they: “(1) unambiguously charge a crime, dishonesty, fraud, rascality, or general depravity, or (2) are falsehoods that injure one in his office, business, profession, or occupation.”
Victims in these types of cases may “recover general damages, including damages for loss of reputation and mental anguish,” wrote the Texas Supreme Court of Texas in 2002′s Bentley v. Bunton.
In other cases, the attorney may need to calculate the actual damages. This is important when a defendant tries to utilize the Texas Citizens Participation Act. That law targets lawsuits that are intended to silence critics by burdening them with the cost of a legal defense. Such disfavored lawsuits are called strategic lawsuits against public participation (SLAPP) lawsuits. The Texas Citizens Participation Act is anti-SLAPP legislation. Failure to prove actual damages is the most common reason plaintiffs do not survive anti-SLAPP motions under this statute.
4. Act quickly. Texas imposes a one-year statute of limitations for bringing a libel or slander claim. 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 don’t engage legal assistance. If the problem persists and they then wish to hire an attorney, the statute of limitations already may have expired.
5. Are there easier methods to stop online attacks and remove the defamation? Each defamation case is unique. When evaluating a case, attorneys should consider if there are easier or more efficient ways to solve a client’s problem and remove harmful content.
For instance, many websites will remove defamatory statements if those statements violate their terms of service. Other times, reaching out to 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 these points or questions is important before bringing an online libel or slander claim.
Whitney Gibson is a Cincinnati partner in and Paul Kerlin is a Houston associate with Vorys, Sater, Seymour and Pease. Both work in the firm’s internet defamation group, where Gibson has worked on hundreds of internet related cases from across the country.