When they won’t say it to your face: How to respond to online defamation

Editor's Note: Lance P. Martin is a member of the Financial Institutions and Litigation Sections of Ward and Smith, P.A.

The Internet, which permeates our lives more and more each day, can be a source of tremendous enrichment and convenience. But because it is so easily accessible, it also can be a forum where competitors, employees, neighbors, or complete strangers target you or your business and disparage you. From the "MySpace suicide" to CEOs getting caught anonymously slamming the competition, each day brings another story of people pursuing a nefarious agenda on the Internet. Regrettably, codes of conduct and rules of etiquette often are voluntary at best. If someone wants to spread lies about your company or your character, they have a variety of forums from which to choose. And, as more people turn to the web for news, information, and social and business interaction, a single damaging lie can be published and read by thousands, even millions, of readers almost instantaneously. An employee with a vendetta, an unscrupulous competitor, or a jilted lover all can defame your character or your business quickly and effortlessly. If this disparagement rises to the level of defamation – that is, if it is false, malicious, directed specifically at you, and causes you damage – it is actionable under state and federal law. Just as one may be liable for printing a libelous column in a newspaper or uttering a slanderous statement in a public forum, one also may be liable for defamatory comments posted on the Internet. Unfortunately, proving a case, and bringing a guilty party to justice, is no easy task. Bringing a lawsuit based on online defamation poses more significant challenges than a lawsuit based on defamation through more traditional media.

Anonymity and Its Discontents

In a famous New Yorker cartoon, two dogs stand before a computer and one says to the other: "On the Internet, no one knows you're a dog." Anonymity is the fundamental problem with bringing a lawsuit for online defamation. In most chat rooms or message boards, you are not required to use your real name. In fact, it is a common practice for people to adopt a different persona, or "avatar," when they are online. This anonymity, combined with the impersonal nature of online communication, undoubtedly factors into coarse, malicious, and defamatory posts. So the biggest hurdle facing the victim is finding the person behind the alias.

Don't Blame the Host for the Post

Your first instinct may be to sue the entity that hosts the website or message board. In most circumstances, however, message board hosts and Internet Service Providers ("ISPs") are not liable for the content of messages posted on their message boards. They have been provided broad immunity by the federal Communications Decency Act. Unless they are developing or creating the defamatory content, you will not be able to prevail in a lawsuit against them. Protections for Internet administrators are strong in large part because it is so difficult for them to monitor content on their own websites. You may, however, be able to get them to remove the offensive posts and, better yet, post a retraction.

Unmasking the Alias

Therefore, if you want to prevail in court, you have to find the guilty party. And to find the guilty party, you will need to engage in some computer sleuth work. To do so, you need to understand how Internet transmissions occur. Every Internet website has an Internet Protocol ("IP") address – a numeric address consisting of four sets of numbers separated by periods. Each IP address is unique to a computer, and all communications between computers on the Internet use them. When a computer user transmits data, the transmission includes the IP address of the computer used in the transmission.

Individuals access the Internet in a variety of ways, including through commercial ISPs such as AT&T, Comcast, and AOL. These services offer access to their own computer networks and software allowing their customers to interconnect with other computer networks. There is a wrinkle: Although IP addresses are unique to each computer, ISPs assign those addresses when a user logs onto the Internet. A person who logs on and off five times in one day, for example, will have gained access to the Internet from five different IP addresses, albeit through the same ISP. Although the block of IP addresses assigned to an ISP remains static, the actual address assigned to an individual user changes. The challenge with an online defamation Internet lawsuit is to connect the dots from the Internet message board to the IP address assigned by the ISP to the offending poster to the IP address of the offending poster.

Filing suit: Who, where, when, and what?

Since you won't know the name of the guilty party, who do you sue? Initially, you will have to file your complaint against one or more "John Doe" defendants, and include the screen names of the offending posters. Courts require jurisdiction over a defendant to hear a case, so the next question will be where to sue. After you learn the location of the guilty party, you should file suit in your state of residence or, if you are a business, of your principal place of business or state of incorporation. Courts also require subject-matter jurisdiction. In most circumstances, defamation actions will be heard in state court.

Having determined the who and where, the next question is what legal theories do you raise in your complaint? For individuals, the primary cause of action is defamation. Defamation is an "intentional false communication, either published or publicly spoken, that injures another person’s reputation or good name." The classic examples of defamation are false accusations of sexual misconduct or serious criminal misbehavior. For less obvious cases, there is a large body of case law interpreting what is, and what is not, defamation. These cases set forth valid defenses, such as the absolute truth of the communication, as well as invalid defenses, such as the "I was only joking" defense.

Businesses may bring a defamation action if the false statements damage the company's reputation or good name. They also may bring claims for tortious interference with business and contractual relations, misappropriation of identity, breach of contract, unfair and deceptive trade practices, and, if the offending poster turns out to be a current or former officer or director, breach of fiduciary duty or misappropriation of trade secrets.

Make Haste to Prove Your Case

In some lawsuits, there is an advantage in waiting a period of time before you file a complaint. An online defamation action is not one of them. Rather, time is of the essence. To identify the guilty party, you will need to subpoena the appropriate ISPs. The ISPs, for their part, often retain information needed to identify posters for only a short period of time, in some cases just a few days. Thus, proper identification of the guilty party may turn on the age of the messages. Consequently, as soon as the lawsuit is filed, your attorney should issue subpoenas requesting information sufficient to identify the "John Does." In some cases, the message board host may have the poster’s e-mail address from which you may determine the poster’s identity. In rarer cases, the host actually may have the poster’s proper name. The more information you provide to the company hosting the message board, the better your chance of obtaining timely and responsive information. As you gather information, you may have to issue a second or third round of subpoenas. The ultimate goal is find the warm body responsible for the offending posts.

You likely will incur considerable expense simply finding the guilty poster. If you are lucky enough to find the poster, you then must decide how you want to proceed, weighing the benefits of litigation against the costs. It's one thing if the post involves a business dispute and the anonymous poster turns out to be the CEO of your Fortune 500 competitor. It's another entirely if the defamatory post involves a personal matter and the anonymous poster is an impoverished loner living a make-believe life in the basement of the poster's parents.

© 2008, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Lance P. Martin practices in the Financial Institutions and Litigation Sections and represents clients in a broad range of matters. Comments or questions may be sent to lpm@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.