Imagine Googling your name to find that you’ve been hijacked by a computer-savvy foe, who has cleverly labeled you a convicted sex offender, drug dealer or even worse. Rather than your usual business picture and bio, what pops up is completely false — the most damaging, horrific and graphic portrayal — and threatens to destroy your business and reputation and livelihood; indeed, your entire life. Query: What do you do about it? What can you do? This article will identify and examine this growing problem and provide some practical guidance if you should find yourself ensnared by it.
While the above scenario is all too real, varying degrees of false information spread happens every day, and managing one’s reputation, business and personal interests can be challenging. It is becoming all too common for people to make false statements — often anonymously — about businesses or professionals in online forums, on social media, posted to consumer review sites and by blogging. Seen at a glance by a wide audience, the damage can spread like a cancer, informing potential customers, business associates and friends and family.
A multidisciplinary response may be required in the face of such a crisis. Consider carefully evaluating the manner, type, and scope of the harm ; and formulating a game plan to quash it.
Identify the Websites and Individual(s) Behind the Defamation
Identifying the scope of what specifically has been said about a person and where the statements are located is typically straightforward. Finding out who has made them often requires time, money and resources.
While a cursory investigation may reveal the poster’s identity, most often the bad actor goes to great lengths to hide. A suspicion may exist as to identity, but hard evidence typically needs to be gathered. Legal counsel can lead the charge, using a team of other professionals to get to the bottom of what is happening. For example, counsel can coordinate with private investigators, computer and forensic experts, law enforcement and others.
A “John Doe” lawsuit, may be appropriate under certain circumstances, which might possibly serve to provide legal authority to subpoena a host website, blog or other venue for the poster’s identity. Some websites that otherwise have no problem with identifying anonymous posters will not do so unless first required by court order [e.g., Matter of Cohen v. Google, 25 Misc. 3d 945, 946 n. 1 (N.Y. Sup. Ct.. 2009)].
Evaluate Potential Legal Claims
Once the investigation reveals the details surrounding the “what” “where” and “who,” legal counsel has tools to try to stop the bleeding and bandage up the damage. A simple cease and desist letter may prove helpful. Sometimes the threat of litigation can result in a takedown and/or retraction of the bogus material. A full-blown lawsuit for injunctive relief and/or money damages may also be an option, depending on the circumstances.
As a preliminary matter, any response to false or harmful online speech is inherently limited by Section 230 of the Communications Decency Act (47 U.S.C. § 230). In layman’s terms, Section 230 generally prohibits websites from being held liable as a “publisher” for content posted by third parties. In practice, Section 230 immunizes from defamation liability websites that simply host content but do not create or edit content. Because many defamatory statements will be on passive websites, Section 230 essentially forces any legal response to defamation to focus on individuals.
Common claims against individuals include those discussed below:
Defamation: The most versatile legal tool to combat false online speech is defamation. Traditionally, a defamation claim requires the victim to show that another person made: (1) a false and defamatory statement concerning the victim; (2) to a third party; (3) which caused damage. Depending on the nature of the defamatory statement, the identity of the victim and the jurisdiction, a victim may also need to show that the statement was made with “actual malice,” that is, knowledge that the statement was false.
Because the range of conduct it covers is so broad, defamation is a strong tool. But it does suffer some defects. As stated, the actual websites that host defamation are likely immune from a defamation claim under Section 230. Further, a defamation claimant must show some harm, which can be a significant stumbling block. Nonetheless, defamation remains a viable legal claim to counter all types of online vitriol.
Digital Millennial Copyright Act: If a defamatory post also infringes on a copyright, the DMCA’s notice and takedown procedure may also be of value. As the name of the procedure implies, under the DCMA, a copyright holder can send a notice to a “service provider” (including internet service providers, websites and search engines) demanding that the provider remove any infringing material.
There are two advantages to this approach. First, DMCA takedown notices are cheap and often effective — if a provider takes the infringing material, it is immune from further copyright liability [17 U.S.C. § 512(c)(1)]. Second down, DMCA takedown notices can be sent directly to service providers, thus removing the inefficiencies created by Section 230 Immunity.
The obvious drawback to the DMCA is that it only covers copyright infringement. But even then, copyright protections apply to a very broad set of material and DMCA takedown notices can be used even if the infringed material is not registered with the Copyright Office [17 U.S.C. § 408(a)]. Thus, the DMCA notice and takedown procedure is potentially applicable in a number of scenarios that are not immediately obvious. For example, if a defamatory post includes a picture from the target’s website, the DMCA may apply.
Criminal Statutes: Federal law and several states explicitly prohibit online harassment. While these statutes vary considerably across the country, they generally prohibit individuals from sending unsolicited communications with the intent to make the recipient feel threatened, harassed, annoyed, alarmed, or otherwise harmed [e.g., 18 U.S.C. § 2261A(2); Cal. Penal Code § 653.2; A.R.S. § 13-2921]. Thus, cyber harassment statutes are potentially helpful to individuals who are being harassed.
A tactic sometimes employed by online criminals is to impersonate a victim online, and then make fraudulent posts for the purpose of embarrassing, defrauding or otherwise harming the victim. Some states, including very large ones like Texas, New York and California, have statutes specifically outlawing this type of behavior [e.g., Texas Penal Code Ann. § 33.07(a)(1)-(2); New York Penal Law § 190.25(4); California Penal Code § 528.5]. But even if the victim’s state of residence does not have a specific online impersonation statue, similar behavior may be prohibited by the relevant identity fraud statute.
Certainly, this is not an exhaustive list of legal options, but it is helpful to know that options are available to try to prevent, remove or mitigate online defamation. Whatever option is best for a given situation will vary.
Some websites have quasi-dispute resolution services, or other ways to “flag” defamatory and harmful content. While this option is relatively inexpensive, the efficacy of relying on this is questionable. Because websites generally enjoy immunity from liability, it may be a challenge to convince them to remove defamatory posts. Moreover, convincing a website to remove harmful posts does not stop an individual from making future defamatory statements.
Another option is to wage a counter-marketing campaign with the goal of drowning out any negative posts. For businesses with larger marketing budgets, this option may be the most efficient means to counteract online defamation.
The approach best for an individual person or business will depend on the context, and each situation should be evaluated in a thoughtful and individualized manner.
Robert Feinberg is a partner at Snell & Wilmer. A criminal defense attorney in Phoenix, he is part of the firm’s Special Litigation and Compliance Group. He has a broad-based litigation and trial practice. Feinberg conducts internal corporate investigations, identifying issues and formulating front-line tactical response plans to address alleged workplace misconduct.
Ian Joyce is an associate in Snell & Wilmer’s special litigation and compliance group who focuses his practice on constitutional litigation. He has represented government entities in connection with procedural and substantive due process, equal protection, and takings issues, among other things. Ian also has experience advising clients on matters related to the First Amendment, including defamation.