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IMA Human Resources Blog

Who Said What? Cyber Defamation: How to Respond

Waltz, Palmer & Dawson, LLC is an IMA B2B Partner

As a business’ presence grows online, so does the number of potential critics; often faceless people posting reviews on blogs or other social media websites. But when is the line between critic and defamation crossed? All businesses deal with criticism, whether from an unhappy customer or a business rival. However, an increasing number of businesses are forced to deal with a new headache, cyber defamation.

Cyber defamation is actually defamation or slander (both defined below) using digital media, most commonly via the Internet. The laws and penalties for cyber defamation vary from state to state and country to country and it is recommended to use a lawyer from your particular jurisdiction in the event you are a victim of cyber defamation. Per Penn State’s article “the tort of cyber defamation is considered to be the act of defaming, insulting, offending or otherwise causing harm through false statements pertaining to an individual in cyberspace” (often committed on Internet websites, blogs, forums, emails, instant messaging, chat rooms and now in the social networking sphere). Also, “with the core elements of defamation, the burden of proof is placed on the plaintiff in the case. Damages are usually awarded monetarily and in the United States, truth is an ‘absolute defense’ (Larson).” Due to the far reaching and global presence of the Internet, cyber defamation can be more harmful than traditional defamation, libel or slander (in the traditional model under the brick and mortar physical world of businesses).

What is Cyber Defamation? Do You Know the Elements of Cyber Defamation?

All cyber defamation attacks share similar characteristic, a negative (defamatory) statement is communicated over the Internet by an anonymous critic. The elements of a cyber defamation claim are fundamentally the same as a traditional defamation claim and commonly include:

  1. a false and defamatory statement concerning another that is harmful to the other’s reputation (the subject of the statement is harmed as a result of the statement);
  2. an unprivileged publication to a third party (published or communicated to a third party, including on-line posting);
  3. the statement appears to convey a fact, not just an opinion;
  4. fault amounting at least to negligence on the part of the publisher (person making the statement is at fault or someone under the control of another, like an employee of your business, made the statement;
  5. either actionability of the statement irrespective of specific harm or the existence of specific harm caused by the publication; and
  6. If the statement is about a public figure, the individual making or publishing the statement must know the statement is false but makes it regardless of its falsity (made with reckless disregard of the statement’s truth or falsity).

Do You Know the Difference Between Defamation, Libel, and Slander?

As part of this topic of cyber defamation, it is helpful to note the differences between defamation, libel, and slander. These terms are similar but each actually means something different and distinct. Defamation is a false statement of fact made about another person in a public setting that causes harm (as mentioned, use of the Internet for this and on-line posting counts). Libel is actually defamation that is written or published while slander is defamation that is spoken.

Cyber Defamation: Is Your Business the Subject of Cyber Defamation? If So, What to Do? Monitoring, Prevention, and Response to Cyber Defamation

While similar in many ways to regular defamation, the anonymity of the Internet creates unique issues and challenges for a cyber defamation case. As the majority of the speakers on the Internet are anonymous, revealing the true identity of the party who made the defamatory statement can be the first and most challenging part. Prior to filing a claim for defamation, a business may choose to conduct an investigation, often using a cyber-investigation firm, in order to identify a critic. Alternatively, a business may choose to file a lawsuit against the unknown critic and use the discovery process, through subpoenas, to determine their identity.

The United States Supreme Court has held that the First Amendment protects an author’s decision to remain anonymous. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). The courts have responded by developing a variety of tests to determine if a plaintiff’s interest in discovering the identity of an anonymous critic against the critic’s right to remain anonymous.

A business has several options when responding to cyber defamation, ranging from doing nothing to filing a lawsuit. The issues and risks of the potential responses should be discussed with your attorney prior to acting. Common responses are:

  • Ignoring the statement
  • Contacting the critic who made the statement
  • Asking the Service Provider to remove the statement
  • Rebutting the statement
  • Filing a legal action

Putting an end or properly dealing with any defamation, in particular cyber defamation, can be a difficult challenge to address. If not too serious of a situation, a business may be able to settle the matter directly with the poster or even address and resolve the matter with a letter (known as a cease and desist letter) to stop the action and remove the statement from the Internet. If the claim is more serious and a business is able to prove that the individual/poster is acting with malice or spite, a business may need to even file a police report with the local police (depending on the jurisdiction as well).

Internet Growth: Is Your Business Monitoring Its Virtual Reputation?

As society’s reliance on the Internet grows, so does the power of business critics. Businesses must be aware of the threat of cyber defamation and monitor their virtual reputation. Legal counsel is recommended when determining how to respond when faced with potential cyber defamation.

 

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