Internet Defamation: Consider These Factors When Potentially Pursuing Legal Claims

Post by Whitney C. Gibson

The internet has revolutionized how we function today and it has done so much good for society.  Yet, there is no denying the bad that has come with it.  Internet defamation (among other types of harm in the online world) is very real and, unfortunately, being carried out very frequently.

If you are thinking of bringing an internet defamation claim against another, there are many factors you should consider.

For example, you should consider the following:

Who caused the harm?

In the United States, under Section 230 of the Communications Decency Act, most interactive websites – including news outlets, review-based websites, and social networking websites – are generally immune from liability for content published by third party users.  For instance, if another person spreads libelous material about you on Facebook, you will not have a viable claim against Facebook.

Thus, it is important to know who caused the harm.  In many cases, this is easier said than done, as a large percentage of defamatory content posted online is done so anonymously.  You can still bring a lawsuit against an anonymous, or “Doe”, defendant.  Then, once you are able to determine his or her identity, you can amend your complaint to name that person as the defendant in the case.

Read: Internet Defamation: When To Take Legal Action vs. When To Let It Be

Identifying an anonymous attacker – whether through the subpoena process or with the assistance of cyber investigators – is also important for evaluating the attack.  When you or your business has been harmed online, you will want to ask the following:

• Is this a one-time attack by a disgruntled party, or is it the beginning of a full-fledged campaign?
• How likely is this person to cause further damage by spreading the false information beyond its current location?
• Does the attacker have a large online presence/can they potentially reach a large audience?

As mentioned in May, we often recommend assembling a team of experts to handle complex issues on the internet.  In these instances, a lawyer or online reputation management specialist will play an important role.  But a cyber investigator can also help evaluate your case and uncover pertinent information about your attacker and the likelihood of future harm.

Where is the information?

When evaluating an attack, it is necessary to consider where the harmful information is: both the actual forum (i.e. website) from which the attack originated, and where the content ranks on search engines.

The location of defamatory content is important for many reasons.  A defamatory tweet, for instance – which could go viral but is most likely to be lost among the millions of daily tweets – is vastly different from damaging content posted on, say, Ripoff Report.  On Ripoff Report, defamatory statements about you or your company can not be deleted and will survive permanently on the website.  These statements will also likely rank highly in search engines.

Read: What If Pursuing Your Online Defamer Results In Even More Online Defamation?

Each website has its own policies and terms, so not only will the extent of an attack vary from forum to forum, but the ability to take action and possibly get content removed depends on which website is hosting the harmful content.

Furthermore, how highly a link to the damaging content ranks in search results should be considered, especially if it is among the top results.  However, just because something is not on the first page of results on Google, for example, does not mean it could not eventually be there.

When was the attack made?

Time is a major factor for instances of potential internet defamation.  As soon as content goes up online, the statute of limitations begins to run.  In most states, potential defamation victims have only a year or two to bring a claim.

Also important, an internet service provider (ISP) only maintains data for certain periods of time.  When we issue subpoenas to third party websites for personally identifying information, we often obtain an Internet Protocol (IP) address and use that information to issue another subpoena to the ISP.  But after some time period, a service provider may erase the data you may desire, thus it is important to act quickly.

Read: Internet Defamation: How Executives Can Handle Disparaging Online Content

This is not to say a lawsuit is always the answer, and certainly there are instances where there are better solutions.  It is also worth noting that oftentimes people will consider techniques such as SEO tactics to bury harmful content, only to see the relevant links reemerge high in search results.

If, at that point, you choose to seek out legal solutions, it may be too late depending on the relevant statute of limitations. Again, this is another reason to consider working with a team of experts, in order to help efficiently determine the best approach to take in a particular situation.

What are your legal options?

If the legal route is the best one for you, there are a number of options to consider.  These include: convincing a website or the author of a post to remove the content; negotiating with the author; sending a cease and desist letter; bringing a lawsuit; or obtaining a court order for the purpose of having the relevant links de-indexed from a search engine.

But no one case is the same as the next.  Solutions are fact-dependent.

Therefore, from a legal perspective, it is always important to also consider: the jurisdiction; the legal claims available; your risk tolerance and your budget; the aforementioned attacker characteristics and the relevant statute of limitations; search engine rankings and strength; the terms of service of the relevant website, and more.