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Cyber defamation has been the tech tort that has dogged companies and individuals for almost a decade now. Who knew that the anonymity of the Internet would lead to some people to venture off into a character murdering campaign?
We all pay a price for the ability to be able to reach literally millions of people almost instantly. But what are some of the legal considerations a company must think about when addressing this pervasive problem we call cyber defamation?
The Factors Against
Today, everybody's a critic. Part of the movement that was intended to let people voice their opinions without fear of reprisal has also opened up channels for people to maliciously malign, defame, and ruin. Never before has it been so easy to torpedo another's reputation. And now it can all be done anonymously.
And the anonymity part is largely a problem when it comes to those who would seek to redeem or protect their reputation. Courts, still guided by 19th century principals of named-defendant doctrine typically require that the poster be identified by name in order to issue a court order for removal. Since the identities of posters are usually guarded by the ISPs -- and since those identities can be made up, anyway -- just getting that information can present a huge economic disincentive for companies to pursue the matter further.
What's more, courts have routinely interpreted the Communications Decency Act of 1996 as the general federal statute that protects forum hosts such as Google, Twitter, Facebook, etc., from liability for user-posted defamatory content. We're living in a time where free speech notions have encouraged anonymous-hate talk. And that can be very bad for business.
Recent Relevant Laws
From the point of view of companies and sites, a number of laws have be enacted to severely restrict the use of liquidated damages provisions against customers who leave negative or damaging reviews.
In California, passage of the "Yelp bill" effectively bans liquidated damages provisions in terms of service language. This may have been all with good intentions, but it also means that malicious posters can that much more easily ruin a hard earned reputation. The federal Consumer Review Freedom Act is a little bit less draconian, but still has holes as well.
But of course, what law doesn't have holes?
What Legal Counsel Can Do
Employ the Digital Millennium Copyright Act: Counsel should make swift and effective use of the DMCA which obliges an alleged copyright violator to remove any infringing material from his or her site upon notice of the alleged violation. Though this will not negate the defamatory material, it will at least help remove other associated copyright material such as photographs and, more importantly, company logos.
Check the host site's terms and conditions: This next trick may not work on all sites as each site has different Terms and Conditions of Service and use, but it pays to see if the defamatory material is in violation of the site's own terms. In most cases, court order or no court order, many sites will be willing to remove the offending material in order to maintain the integrity and reputation of the webspace.
Rack 'Em Up
Unfortunately, sometimes your client will have to resort to legal means. You gave it time, and the "reviewer" is still out there unfairly assassinating your reputation. Rules vary by jurisdiction, but some states will allow you to work against anonymous reputation killers. Filing and/or obtaining pre-litigation disclosure for the strict and limited purpose of obtaining discovery or filing a "Doe" complaint and serving said complaint on Google, Yahoo, Twitter, or whatever the host forum may be. It's the ISPs that have this critical information and only they can identify who (or more likely, where) the proper defendants.
Once a tentative ID is made, then a court may issue a defamatory finding. Hopefully you can then talk to the ISP's legal team to remove the defamatory material from the engine's search results. With luck, a good purge and de-indexing will remove any means that people can use to find the libelous material, and in today's world, that's about the best one can hope for.
It won't be easy, and the results are usually below that of your client's expectations, but hey -- it's your job to explain the kind of world we live in. We're hopeful that a balance between freedom of expression and freedom from character assassination can be hammered out over time.