Internet Chatter: Fighting Back Against Web Defamation
A former employee looking to voice his grievances against management took to his twenty-first century soapbox, the Internet. After airing his criticisms of the people and company that decided to part ways with him on his personal blog (with links to his social networking websites), a company client comes across the rant and forwards the link to the company’s attention. What can the company do? Are the comments protected by the First Amendment? This article explains why they may not be, and provides a blueprint for how a company can fight back using laws that prohibit trade libel and false statements.
Types of Defamation
State laws typically define defamation in certain ways: if the statement is written, it is considered libel; if the statement is spoken, it is considered slander. For the most part, attacking such statements require the same analysis.
In general, defamation is considered a false statement of fact that harms someone’s reputation, and is published with fault. To be published with fault, the statement must have been made either as a result of malice or negligence. If the plaintiff is a public figure, he or she must prove “actual malice”—that the statement was published with either knowledge that it was false or in reckless disregard for the truth. A private figure claiming defamation only has to prove that the statement was made negligently.
There are a couple types of statements that cannot be attacked. If the statement is true, for example, it is an absolute defense to a defamation claim and no defamation exists. Additionally, someone’s “opinion” would not be considered defamatory. To determine if something is an opinion, courts examine whether the reasonable listener or reader would understand the subject statement as an assertion of verifiable fact. A statement of verifiable fact is one that expresses a provably false factual statement—for example, saying that Company X fired all of its elderly employees so it didn’t have to pay retirement. Dressing up a statement of verifiable fact to appear as if it is an opinion doesn’t necessarily make it an opinion. For example, saying “It’s my opinion that Company X fired all of its elderly employees so it didn’t have to pay retirement” does not save an otherwise defamatory statement.
This same analysis applies to what is known as “trade libel.” Generally, trade libel is defamation against the goods or services of a business or company. An example would be someone posting online that there were rodents running around the local diner’s kitchen when the statement is not true.
The first step to taking action against Internet statements is determining whether the statement constitutes defamation or not. Counsel can assist with this sometimes elusive task.
If a statement appears on its face to be defamatory, sending a cease-and-desist letter is likely the next step toward getting the offending user to take down defamatory statements and stop posting similarly defamatory statements in the future. Of course, this could be a bit tricky to accomplish if the user is anonymous. If the user is not readily identifiable, attorneys can ask the Internet Service Provider or host website for the name of the user or file a complaint against a “Doe” defendant to permit discovery to start. There are some sites that vigorously protect the identities of their users, and these websites are generally protected from their user’s liability as long as they do not know that false statements are being made.
If issuing a cease-and-desist letter does not work, the next step to consider is filing an action. Bringing lawsuits can sometimes be cost prohibitive and it may not always be the best decision for addressing Internet defamation.
When attempting to attack a negative review on a consumer review website such as Yelp, for example, companies should also be conscious that it may create public relations issues where they would look like a bully going after a customer “exposing” a company for its problems.
In addition, California has a powerful tool for defendants charged with defamation. The anti-SLAPP (strategic lawsuit against public participation) statute is designed to prevent lawsuits intended to thwart free speech. The anti-SLAPP statute is meant to protect public speakers from getting sued. In order to overcome it, you have to demonstrate that you have a reasonable chance of winning the case on the merits and it can be a considerable burden to overcome.
Internet defamation can be a serious issue for individuals and businesses alike. There are options you can take to fight back. If this issue ever arises for you, probably the first step is to contact us and we can discuss it with you further. If you have any questions, please contact Ross Schwartz, Dick Semerdjian, Kevin Cauley, John Moot, Sarah Evans or Sierra Spitzer.