As a business lawyer who specializes in internet-marketing law and litigation, I often get questions about how to remove negative, defamatory, or infringing material from the internet. Typical questions include:
- Somebody is posting lies about my business on the internet. How do I get them removed?
- Can I sue a former employee who is using their blog to spread lies about my company?
There are websites for pretty much everything. That includes websites that are forums for people to review businesses. Some even some “specialize” in airing business complaints. Yes, I know that everybody has a strong First Amendment right to voice their opinions about businesses (and other people). But they cross the line when their words are intentionally false.
What is Defamation?
See another blog for a more in-depth explanation of defamation, but defamation generally is a knowingly-false statement of fact that damages your reputation. Defamation can be (i) spoken (we lawyers call it slander), or (ii) written (libel). A new form of defamation has recently emerged that is called “Twibel.” Though the “Tw” comes from Twitter, Twibel is not limited to libel that appears on Twitter. It includes any libelous statement that appears on the Internet in any forum.
Steps to Take When You are a Twibel Target
What do you do if defamatory, negative material about you appears on the Internet and you think that you know who wrote it?
First, you can contact the person and demand that they voluntarily remove the false statements. In my experience, they often do not respond. In fact, they may thumb their noses at you — responding by making additional defamatory statements.
I remind my clients to be careful before putting their thoughts or feelings in an email or posting something on their social-media accounts. Anything you throw onto the Internet can be, and often is, used against you in ways that you did not anticipate and certainly never intended. A well-written letter from your lawyer can work much better at having the content removed. George Law has lawyers experienced in writing such letters.
Second, regardless of whether the poster is anonymous, you can contact the ISP, website, or webhost (which I will call, collectively, the “Website”) directly and demand that it remove the statements. Of course, this usually is the first step if you don’t know who posted the defamatory statements. Make sure that you (i) review the website’s fine print so that you understand its required procedures, (ii) send your demand to the proper person, and (iii) cite to a specific provision that the poster is violating. Depending on the Website, and depending on the content of the statement itself, this may result in the negative material being removed, or at least the worst of it being redacted. Of course, you may receive an automatic response that refuses to remove anything without a court order.
To Sue or Not to Sue….
In many cases, your only option is to file a lawsuit. If the Website requires a court order before revealing the anonymous-user’s identity or removing any negative material from the website, your task is more challenging. Your probability of success in obtaining a subpoena, identifying the person defaming you, and having the content removed depends on (i) the legal burden for having the content removed that the law places on you as the plaintiff, and (ii) the context of the statements at issue and whether you’re a public or private figure.
An important element to consider before filing a lawsuit is your ability to prove your quantifiable damages. Proving actual, measurable damages can be a lot more difficult than it sounds. Establishing repetitional damage in a defamation case requires (i) a lot of evidence, and (ii) the ability to transform into a dollar value.
No One Wants to Be SLAPPed
In addition to the above-mentioned considerations, before commencing a defamation lawsuit, make sure that your lawyer tells you that your lawsuit is unlikely to be challenged as a Strategic Lawsuit Against Public Participation, more commonly known by its acronym, “SLAPP.” That is, could the plaintiff allege that your lawsuit is meritless and you filed the lawsuit against it in retaliation for speaking out on an issue of public concern? Plaintiffs with a lot of money often file SLAPPs in retaliation for being sued. This, of course, chills your freedom of speech and forces you to incur significant legal fees to defend the case.
Of course, if your lawsuit is not frivolous and does not implicate a “public” issue, your concern is minimal.
Getting Rid of All the Rest
If negative material is posted about you or your business and it is not per se infringing, defamatory, or otherwise prohibited, don’t give up so easy. There still are ways to have it removed from the Internet, particularly with the assistance of an experienced attorney, such as those as George Law, (248) 470-4300.
Can This Negative Material Be Removed?
In determining the answer to that question, a good lawyer will ask you several questions:
- Has the posted material negatively impacted your business?
- Can you prove that the posted material actually harmed your business?
- Has the posted material caused you to lose customers?
- Have you received inquiries that likely stemmed from the negative content?
Depending on your answers, you may be able to convince the Website to redact some or all the content, particularly if it violates any of the site’s terms or is particularly objectionable.
Depending on the laws of your jurisdiction and the specific facts of your situation, there may also be potential claims that your counsel could threaten – and prosecute – against the individual, such as defamation, libel, intentional interference with prospective business relations, tortious interference with contract, etc.
Your Online Presence Matters
In sum, it is important to do a thorough online search of your name and company name frequently: for the good, the bad and the ugly. Then it’s imperative to consider the many options available to you on how to remove the negative material. Do not hesitate to call the experienced lawyers at George Law talk about your issues. (248) 470-4300.