Fighting Back Against Anonymous Defamation on the Internet: A Case Study
By S. Todd Neal, Procopio Partner and Chair of its Litigation Team
The Internet and social media have empowered us to communicate like never before. Obviously there are major benefits, including that we can communicate on a real-time basis to a broad audience while obtaining information about businesses including reviews, ratings and other customer feedback.
Unfortunately, cyberspace also has a dark side, because it provides a platform for Internet users to anonymously publish false information that can be professionally and personally devastating. Whether it is a calculated attack by a competitor or former employee or a spontaneous rant by a disgruntled customer or personal enemy, online anonymous defamation can cause serious harm to a business or person resulting in massive financial losses and permanent reputational injury.
Under California law, defamation is a publication that is false, derogatory, unprivileged and that has a natural tendency to cause injury or special damage. Despite the feelings of keyboard courage or anonymity that embolden some Internet posters, under the law anonymous statements made online can constitute defamation. The core issue is whether a statement asserts, either explicitly or implicitly, a provably false statement of fact.
Mere statements of opinion (e.g., an expression of a person’s feelings that cannot be proven true or false) are generally not actionable under California defamation law. The more a statement implies a definitive act that can be proven to be true or false the more likely it is to be a statement of fact which could potentially qualify as defamation.
The eternal question of falsely accused individuals is where does one go to get their reputation back? Defamatory content on the Internet presents a slightly different question. Since Internet postings can be accessed by individuals all over the world and most postings remain online permanently, how do you restore your reputation after you have been the victim of online anonymous defamation?
This task has been complicated by the Communications Decency Act of 1996. The Act generally holds that Internet service providers (“ISPs”) or host websites cannot be held liable for defamation made by third parties because ISPs are considered “intermediaries” for others’ online “free speech” and ISPs have no duty to edit or screen the millions of postings made on their virtual bulletin boards. Consequently, many ISPs routinely reject requests to remove defamatory postings because they are insulated from liability and thus have no incentive to scrutinize or remove postings that are brought to their attention.
The issue is further complicated by the fact that most Internet search engines such as Google, Bing and Yahoo have policies stating that they will only de-index (i.e., remove from search results) a posting or uniform resource locator (“URL”) after being presented with a court order that determines the content to be false and defamatory.
So how does a victim of online anonymous defamation fight back and try to restore their reputation? Publishing a rebuttal might help and online reputation management experts can try to “bury” the defamatory posting by publishing new positive content and using search engine optimization techniques to try to push the defamatory posting to the 2nd or 3rd page of search results. But removal of the posting and recovery of monetary damages will usually require legal action.
Lawsuits filed because of online anonymous defamation are challenging, but when handled correctly can lead to removal or de-indexing of the postings and recovery of substantial monetary damages. While it is nearly impossible to trace a posting to a particular individual, it is often possible to trace it to a particular computer and then use circumstantial evidence to establish the identity of the individual or entity responsible for the posting.
One of our clients recently faced a vicious online attack through a series of false Internet postings on four different websites attacking the company, its products and business practices. The anonymous postings falsely alleged that the client had been raided by the federal government, was under investigation for selling “fake” products and that consumers had become very ill because of the defective products, among other false claims. These false claims were extremely harmful to our client’s business and resulted in the loss of many customers.
Our firm was retained to assist the client and we immediately sent evidence preservation letters to the ISPs, preserved the postings by taking screenshots and assisted the client in drafting a response refuting the allegations. After the ISPs refused to remove the defamatory postings on the basis that they are immune from liability under the Communications Decency Act of 1996, we filed a defamation lawsuit against “John Doe” to obtain subpoena power. Subpoenas were then served on the ISPs and, after significant initial resistance from the ISPs, we obtained records which revealed two things: the registrant information used to make each posting was bogus and all four postings traced back to a single IP address.
Each IP address on the Internet is administered by one of five Regional Internet Registries (“RIR”) and the applicable RIR reveals the owner or host of a particular IP address. After confirming that AT&T provided Internet service for the IP address at issue, we subpoenaed AT&T to learn the legal name and physical address of the individual using that IP address on the date in question. The subpoena response from AT&T allowed us to identify our culprit: a business competitor of our client residing on the East Coast of the United States.
The next step was to amend the lawsuit to add the responsible individual and his company as named defendants in the lawsuit. The responsible party denied making the postings and claimed that he didn’t even learn that the postings existed until he was told about it approximately one month after the postings were made. He claimed he was out of town when the postings were made. Unfortunately for him, his bank records proved that he was “in town” when the postings were made.
We then learned that some of the ISPs in question contracted with Woopra to maintain customer analytic records showing the IP addresses that viewed particular postings on their website. This data is often maintained to allow a website to sell advertising space by telling an ad buyer that they have a certain number of visitors to their website each day and the location of the visitors. The response to the Woopra subpoena showed that the culprit not only viewed the postings many times during the initial thirty days they were online, but he also viewed them the night they were made.
After his story crumbled, the defendants suddenly wanted to settle the case. They had a commercial general liability insurance policy with a personal and advertising injury provision that provided coverage for publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services. A demand to pay policy limits was presented to their insurer and the case settled for a substantial amount of money. Additionally, as part of the settlement, the defendants signed a stipulation allowing a court order that determined the postings to be false and defamatory. The postings have since been de-indexed by Google and other search engines. With the postings de-indexed and settlement funds delivered to our client, the case reached a very successful conclusion.
Even though the Internet makes it remarkably easy to anonymously defame an individual or company, we have the expertise and experience to help you restore your reputation and pursue monetary damages if you are the victim of an online attack.
S. Todd Neal is a Partner at Procopio and the leader of its Litigation Team. He has substantial trial experience and has served as lead trial counsel in more than thirty jury trials tried to verdict.