Businesses are constantly in danger of being defamed on the Internet. Often, this defamation is anonymous. Typically, it is committed by a competitor or a disgruntled former employee. Because of this, it can be difficult for a business to combat the defamatory assertions. Websites like Yelp (and blogging platforms like WordPress provide valuable consumer information, however, they can be misused for nefarious purposes. For companies harmed by anonymous internet defamation, there is usually one goal – to remove the defamatory material. In this post, we discuss the proper way to proceed.
Job number one is to identify the poster of the defamatory content. That is because under United States law, section 230 of the Communications Decency Act, websites like Yelp are not liable for defamatory content posted by their users. I repeat, you cannot sue the websites or internet service providers (ISP) used by the anonymous bad guy(s). Many have tried and they have pretty much all failed with a few narrow exceptions. User generated content sites like Yelp are not treated like traditional media such as newspapers and local news. Traditional media can be liable for damages if they do not retract defamatory material subsequent to receiving notice from the aggrieved party. Not the case for Yelp and other review sites.
Even though Yelp and its ilk are not liable for defamation, they are a key cog in the plan to remove the defamatory material. That is because websites are repositories of digital evidence. The digital breadcrumbs that can be used to identify the poster of defamatory material typically resides within the servers maintained by websites and ISP’s.
How does a business identify the perpetrator of defamation? First, you must file a lawsuit naming “John Doe” as the defendant. This is done because the true identity of the defendant is not yet known. However, a lawsuit must be filed so that subpoenas may be served upon third parties (Yelp and ISP’s) to compel the production of the digital evidence that can be used to identify the defendant. Third parties will not typically provide evidence without a subpoena.
Once the defendant is identified, the complaint may be simply amended to specify the true identity of the defendant and the defendant is then served with a summons. From there, typically one of three things happen: the defendant lacks resources and agrees to stipulated judgment; the defendant lacks resources and does not respond to the complaint resulting in a default judgment; or the defendant has some money and mounts a defense and a judgment is achieved after a jury trial.
Obtaining a judgment is the key to this process and the end product. With a judgment in hand, many websites and ISP’s will remove the defamatory content. In the event that the pertinent website or ISP will not respect the judgment, the judgment may be submitted to Google. Google will normally honor judgments for defamation by de-indexing the offending content. This means that the content will not show up in Google search results. Therefore, while the content still exists on the website at issue, 99% of the population will never see it. Other search engines have similar protocols.
As attorneys that routinely represent companies in internet defamation cases know, this really is the only way to remove defamatory internet content. There is no magic wand that can be deployed. It takes money and sometimes several months to achieve the desired result. Normally, the expense is justified only if it is exceeded by the potential for lost revenues.