United States: Dealing With Internet Defamation

Originally published in Business NH Magazine.

While Internet reviews can drive traffic to your website and business, a scathing one can just as quickly give potential customers pause. But what do you do when someone posts something that is not only negative, but is untrue?

Take for instance a doctor with a sterling reputation who finds a review that not only rates him at the bottom of the heap, but also states that the authorities are investigating whether the doctor should be left alone with children. What is the doctor's recourse?

Unfortunately, the answer is not simple. One would think that writing or calling the website to have it remove the defamatory content would solve the problem. The problem is that federal law protects the website from liability, taking away any incentive the site might have to otherwise have to curtail its misuse. That said, there are steps that can be taken to rectify the situation.

Host lmmunity

In 1996, Congress passed the Communications Decency Act, which provides the lnternet content host with immunity with respect to a third party's defamation. Among other things, the law states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." If the site cannot be treated as the publisher of the defamation, it likewise cannot be compelled to remove the content.

Congress conferred this special immunity on Internet publishers to encourage the free flow of content. On that score, the law works. It's great to be able to find a restaurant, car mechanic or even a doctor by accessing the experience of thousands of others whose unvarnished opinions are only a mouse click or two away.

If Internet service providers were liable for the defamation of their users. the chilling effect on the providers' ability to host sites is apparent. Imagine, for instance, a website trying to decide whether a harsh review of a restaurant or hotel was merited or instead was the product of a malcontent's effort to get even for some real or imagined slight. If there was any fear of liability, the harshness might likely be toned down.

The Power of Anonymity

Another problem in stopping online defamation is that many post on websites anonymously, using screen names that provide no clues to their true identity. As a practical matter, anonymity might cause a reader to give the comments greater weight than, for example, if the reader learned that the author was a disgruntled former employee or an unscrupulous competitor. It is also difficult, though, to make someone stop when you can't identify them.

Getting the courts to force disclosure of someone's true identity is not as easy as one might imagine given the country's long history of permitting anonymous speech. That anonymity allows people to speak freely without repercussion, something that can enrich a public debate. There is an inherent tension between the need to preserve helpful anonymous communication and the need to identify someone and seek redress for unfair harm to one's reputation. As described by one appeals court, if anonymity were too freely invaded, it "would inhibit the use of the Internet as a marketplace of ideas," but too high a threshold would "undermine personal accountability in the search for truth by requiring claimants to essentially prove their case before even knowing who the commentator was."

Recourse

The doctor could reach out to the person posting the defamatory statement by posting a response on the website (or, where it can be done, by sending an email to the person directly), indicating the doctor intends to pursue his legal rights. This may be enough to dissuade the individual from similar postings. If this does not work, the doctor's only recourse will be going to court to request subpoenas be issued to the various websites and web hosts in an attempt to identify the person responsible for the defamation. The mere filing of a lawsuit is not enough to get the court to issue a subpoena to the site for information relating to the identity of the individual posting the message. Instead, because of the protections afforded anonymous speech, the doctor will need to explain to the judge, in detail, the strength of his case for defamation. In general, the defamation law requires that the person filing the lawsuit prove: The defamatory statement has been published; the statement is false and identifies the plaintiff; there has been injury and, the defendant is responsible for both the publication and the resulting injury. In the event the defamation accuses the plaintiff of a criminal or despicable act or attacks the plaintiff's commercial reputation, then the plaintiff can recover damages that are presumed to naturally flow from the attack on one's reputation. In other words, there is no need to prove actual monetary damages suffered as a consequence of the defamation. Instead those damages are presumed and calculated as a function of what the jury believes ought to be awarded in the event of such a character assassination.

In the case of our doctor, the doc can show that his commercial reputation is being wrongly sullied. This should entitle him to compel the website to disclose information about who is behind the defamation. The next step is to prove the defamation, seek an injunction against any further postings and pursue damages against the offending individual. Although collection of a damages award can often be a challenge, the awards in cases like this can be large since juries understand the significance.

Scott Harris is a director in the Litigation Department of McLane, Graf, Raulerson & Middleton, Professional Association. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth as well as Woburn, Massachusetts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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