Cyber-Defamation and Your Business’s Response
By Kent Berk on December 30th, 2013 in BLOG, BUSINESS LAW
At some point, all businesses will receive criticism, either from a competitor or an unhappy customer. This has been true for as long as businesses have existed.
What is now different, however, is the way in which your business can be criticized. With the advent of the Internet and the proliferation of online reviews, you must now deal with negative remarks on two fronts: offline and online.
Unfortunately, negative remarks made online are often done behind the veil of anonymity. And with this anonymity, competitors and unsatisfied customers have become more bold. These people may post untrue, unfavorable things about your business, which can be considered defamation.
Defamation is a false statement that has a tendency to harm the reputation of a business (or person). Cyber-defamation, as the name suggests, occurs online. If your business is facing cyber-defamation, a recent ABA article describes several ways you can respond.
You may decide to ignore the statement and encourage positive reviews and comments from satisfied customers. Readers will often ignore over-the-top comments, especially in the context of other positive comments.
Or you may try to remove the statement by contacting the service provider that hosts the comment. It’s important to note here that the service provider may choose not to honor your request if the comment does not violate copyright law or its terms of service.
You can also rebut the statement in a press release, in a cease-and-desist letter, or in the forum where the original comment was posted. Before you choose to go this route, remember that responding can draw more attention to the comment and even give credence to it.
Finally, you may consider filing a cyber-defamation claim. This claim has all of the elements of a traditional defamation claim; however, a cyber-defamation claim poses a few unique challenges due to the medium (the Internet) and the anonymity of the poster.
These challenges include:
- Whether the statement is given as opinion or fact: People are free to give their opinions online and in the real world. Defamation occurs, however, when the statement is false, portrayed as fact, and harmful. Internet speech, according to the American Bar Association, is “often informal and replete with acronyms, relaxed grammatical standards, and hyperbole more often associated with opinions than actionable statements of fact.” That being said, courts have not tolerated defamatory statements just because they appeared online.
- Whether the statement was unprivileged: A statement must be unprivileged in order to be considered defamation. A statement may be considered privileged and protected from a defamation claim, for example, if it was made in ongoing litigation.
- Identifying the identity of the poster: It can be a challenge to discover the identity of the poster. Courts have ruled that posters have a right to post anonymously. Businesses can attempt to discover the poster’s identity through a cyber-investigation service or can file a “John Doe” lawsuit against the anonymous defendant—later issuing subpoenas to reveal the poster’s identity. Note that courts will consider the plaintiff’s interests against the defendant’s right to anonymity when ruling on these subpoenas. In some cases, identification can prove impossible, particularly when the post was made from a public computer.
- Counterclaims: The defendant may file a counterclaim, most likely under anti-SLAPP (“Strategic Lawsuits Against Public Participation”) law. Arizona’s anti-SLAPP law, A.R.S. § 12-751 and 12-752, basically provides that a defendant sued for defamation may file a motion to dismiss the suit based on the assertion that the alleged false statement was made in connection with his/her “constitutional protection of free speech and that is made as part of an initiative, referendum or recall effort,” among other protected speech.
- Who is at fault: The question of fault for defamatory statements is more complicated when the statements were made online. The poster, obviously, can be held liable for the statement. But the publisher of the content is typically not liable. Under the Communications Decency Act, service providers are generally not responsible for the content that people post using their services.
- Obtaining damages: Before pursuing a lawsuit, business owners should determine its cost-effectiveness. Even if the lawsuit succeeds, an individual defendant may not have the resources to pay the damages. In this case, settlement may be more appropriate.
If you believe that your business is being defamed online, please feel free to contact our office.