Defamation Litigation Alternatives: What Are My Options?

Defamation Litigation Alternatives: What Are My Options?

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    If you or your business are the targets of defamatory attacks, fake online reviews, allegations of infidelity, or other defamation, you more than likely have numerous questions about defamation lawsuits and how you should proceed. When prospective defamation clients call us, their first questions are often, “Do I have a case?,” “Who can I sue?,” and “Do I have to sue?”

    Fortunately, you do not always have to file a defamation lawsuit to remove defamatory content from the internet. In some circumstances, there may not be a legal basis for a defamation lawsuit. Other times, litigation is not the most practical or efficient solution. The good news is that you can often save time and money if your matter does not require a lawsuit.

    At Minc Law, we have removed over 25,000 pieces of defamatory content from the internet, the majority of which was removed without court involvement, so we know what works (and what does not) when it comes to combating defamation.

    There are many alternatives to litigation that may be available to you depending on your defamation matter. Popular litigation alternatives include:

    • Negotiating with website owners;
    • Making an editorial request for news article removals;
    • Reporting Terms of Service violations;
    • Sending a DMCA takedown notice;
    • Sending a cease and desist letter;
    • Utilizing Alternative Dispute Resolution (ADR); and
    • Utilizing online reputation management services.

    In this article, we will review common damages caused to individuals and businesses from online defamation, cost-effective methods to remove and hide negative information, and the best ways to restore your online reputation.

    We will start by reviewing how damaging online defamation can be for you or your business’s online reputation and why it is critical to resolve negative online information promptly.

    Damages From Online Defamation

    If you are reading this article there is a good chance you have already experienced some of the negative repercussions of online defamation. Unfortunately, not all damages are immediate – it can take time to see the full impact of internet defamation.

    Below, we take a deeper look at how online defamation can damage both individuals and businesses.

    How Can Online Defamation Stain Your Reputation as an Individual?

    In today’s technology-driven environment, virtually everyone searches the internet for information. Whether you are applying for a new job or meeting someone for a date, the other party is likely to perform a Google search for your name. And what they find will influence their decision on whether you are trustworthy and worth meeting.

    In a nutshell, what the internet and online search results say about you matters – a lot. Defamatory and negative online content about you stands to not only embarrass or humiliate you but can also lead to:

    • Strained or ruined friendships;
    • Strained or severed relationships with loved ones and family members;
    • Being fired from your job and lost employment opportunities;
    • Ostracization from your community; and
    • Physical symptoms such as anxiety, depression, and stress.

    This means it is worth protecting your online reputation because it could have a great impact on your life.

    Cleaning up your internet presence and cultivating a positive online reputation is much simpler if you are not a business owner because you will not have to worry about things like SEO. But maintaining your reputation will still take consistent effort.

    At the end of this article, I will describe several methods of preserving your online reputation. I will also explain what to do if you discover negative information about you online.

    How Can Online Defamation Negatively Impact Your Business’s Reputation?

    Arguably, online reputation matters even more for businesses. Most potential customers perform an internet search before deciding to patronize a particular business, engage with a company, or purchase a product.

    The importance of online reviews can not be overstated. Online reviews, like those found on Yelp, Google, or Amazon, can make or break a business. If someone posts a defamatory statement about your business on the internet, it can:

    • Prevent other prospective clients from contacting your company,
    • Draw negative media attention to your business,
    • Result in severed professional partnerships or advertising dealings, and even lead to
    • Closing your doors for good.

    Even a single, negative one-star review can tarnish your business’s image, repel potential customers, and hurt your bottom line. Sadly, some unscrupulous competitors may even resort to fake reviews to draw customers away from your business.

    Online defamation can have catastrophic consequences for your business, product, or service, and its longevity in the market, so it is imperative to closely monitor your online reputation for digital threats and take immediate action should you find defamatory content posted online.

    To learn more about fake business reviews, how to spot them, and what to do about them, check out our article on the subject, “How to Spot a Fake Review“.

    Glassdoor Review Removal Tip: If you are dealing with a fake or fraudulent or fake Glassdoor review, you may be able to turn to Glassdoor administrators for assistance. Glassdoor has policies against false reviews, defamatory reviews, and inappropriate content. If you have reason to believe the review violates Glassdoor’s Community Guidelines your best option is to sign up for a free employer account and flag the review.

    business-owners-guide-fake-reviews

    Proving Damages in Your Defamation Case

    If you do decide to litigate to remove defamation and negative content from the internet, proving defamation damages can be difficult. Even if you “win” your lawsuit and obtain a court order to remove content, you may not see a payout or recoup monetary reimbursement for damages incurred. Unfortunately, this is the nature of internet defamation cases – proving damages is difficult, costly, and does not always yield a large payday.

    It takes considerable evidence to prove damages and different jurisdictions have their own rules on damages. No two defamation cases are exactly alike, and courts undergo damage analysis on a case by case basis.

    Even so, I would like to briefly review the types of damages that may be available if you file a defamation lawsuit.

    Actual or Compensatory Damages

    Actual and compensatory damages are an umbrella term for two forms of damages: special damages and general damages. If a plaintiff is awarded special damages, they will be reimbursed for actual losses that they proved – such as a loss of business or costs incurred during the lawsuit.

    General damages are even more difficult to obtain because they reimburse a plaintiff for emotional distress or reputational harm (which can be especially difficult to prove).

    Nominal Damages

    Nominal damages are typically awarded to a defamation plaintiff when a legal wrong occurred, but they [the plaintiff] are unable to adequately prove the nature and extent of the damage, harm, or loss suffered.

    While the monetary award associated with nominal damages is often nominal (small), this is not the key reason plaintiffs seek them. Plaintiffs generally seek nominal damages to obtain a court’s acknowledgment that a legal wrong occurred and their rights have been violated.

    Nominal damages may also help lay the framework for future lawsuits, such as the award of punitive damages.

    Punitive Damages

    Punitive damages are awarded to punish and deter wrongful conduct. In some areas of law, like personal injury, punitive damages can be steep.

    When it comes to internet defamation, it often takes especially egregious behavior and actual malice on behalf of the defendant to warrant punitive damages.

    Defamation Removal Tip: If you have been defamed or attacked online, it is important to approach removal with a strategic game plan. Weigh the pros and cons of responding to the post and recognize that there is potential for the matter to be publicized more if you draw attention to it. Ask yourself if you know who the defendant is you are dealing with and make sure to consult an experienced online defamation attorney.

    Options to Remove Negative Online Information About You or Your Company

    Now that you have a realistic view of the damages online defamation can cause, it is important to understand your legal options. Aside from litigation, there are several effective alternatives to remove negative online information, like:

    While there are more options for removing negative content, I will cover these 3 options first because they are often billed differently.

    Guaranteed removals, ADR, and ORM may be offered for flat fees or on a retainer fee basis, depending on the professional you work with. They may also be a little more costly than the hourly non-litigation options I will review later in the article.

    Guaranteed Removal Services

    Believe it or not, some internet defamation can be handled simply by negotiating with the website owners. Lawsuits and threats are not the only answer (and sometimes they can even backfire).

    At Minc Law, we usually attempt to negotiate with websites that we have previously worked with. For the most part, we use this strategy with public shaming websites and cheater websites like TheDirty.com, CheaterLand.com, ShesAHomewrecker.com, and BustedCheaters.com.

    To learn more about guaranteed removals and how much they cost, check out our article, “How Much Does a Guaranteed Removal Cost?” You can also find a complete list of websites we provide guaranteed content removal services for here.

    The good news about this strategy is that we are familiar with the red flags that may impact our ability to remove the content without litigation. Our paralegals typically negotiate with guaranteed removal sites (saving you considerable money). But, there are some unique circumstances where an attorney’s help becomes necessary.

    An attorney may need to step in if:

    • The post has gone viral or there are many live posts on various websites;
    • The post has been scraped and reproduced by other websites;
    • The person who posted the content is still harassing you; or
    • The website is being difficult or asking for a court order before they will remove the content.

    Alternative Dispute Resolution

    Alternative Dispute Resolution (ADR) refers to a number of dispute resolution techniques, such as mediation or arbitration, utilized by disagreeing parties instead of litigation. ADR is merely a litigation alternative to solving a dispute.

    Mediation is an informal process where all parties meet and attempt to settle on terms that work for everyone. This might be a viable option for dealing with consumer reviews on Yelp or Glassdoor, consumer complaints, or other genuine customer reviews. Often, the consumer simply wants to be heard.

    Mediation can enable consumers to have their grievances heard and resolved in exchange for removing the review(s).

    Due to an already clogged and bogged down legal system, most courts prefer that disagreeing parties attempt to resolve their disputes via alternative dispute resolution before trial.

    If you opt for mediation, there is a chance both parties can find common ground and agree to resolve the issue.

    Arbitration is a more formal process than mediation, albeit less formal (and costly) than litigation. Instead of asking a judge to decide the outcome of your matter, you will ask a neutral third-party arbitrator.

    Often, arbitrators are attorneys with experience in the area of law that is in dispute – so you can still get a fair outcome without the hassle of a lawsuit.

    Online Reputation Management

    Unfortunately, there are some types of content and links that cannot be removed. If you find yourself in this position, your best option may be to “bury” the negative content with more positive content.

    Content suppression is a way of pushing unwanted content off the first few pages of your search results. This means others will be much less likely to find the negative posts. This option can be almost as effective as removal, without actually removing the content.

    The drawback is that content suppression often involves an ongoing commitment to keep the unflattering content from reappearing. Costs can add up, but sometimes that is still preferable to the deleterious effects negative content can have on your reputation.

    Make sure to check out our article explaining online reputation management vs. legal services to combat negative online content for further information!

    The Most Cost-Effective Ways to Remove or Hide Negative Online Information

    In general, litigation can be expensive. Between attorney fees, court costs, and third-party costs (like tech experts), the total cost of a defamation lawsuit depends on many variables and there is no one-size-fits-all-answer as to how much they cost.

    At Minc Law, we generally set a $7,500 retainer fee for all litigation matters. However, most lawsuits will exceed that initial retainer. Removing content from the internet without filing a lawsuit can often be achieved in most cases for $3,500 to $6,000, depending on how much content you want to remove and a myriad of other factors.

    Compared to a lawsuit, non-litigation content removals can potentially save you thousands of dollars. However, each defamation matter is unique, so it is always important to consult an experienced internet defamation attorney to best understand which option is right for you.

    For a more detailed explanation of litigation costs, check out our article, “How Much Does a Defamation Lawsuit Cost?”.

    Below, we explore some of the most common non-litigation alternatives to a defamation lawsuit.

    What Content is Covered by Minc Law’s Hourly Non-Litigation Services?

    At Minc Law, most non-litigation alternatives are matters that we handle on an hourly basis.

    Our hourly non-litigation services cover different types of content, depending on your situation. For instance, if you were defamed in a news article, we make editorial requests to get the information removed from the internet – something that we bill for on an hourly basis.

    If you have been the subject of revenge porn or people are sharing other risqué photos of you, we will likely resort to a DMCA takedown notice. Fake online reviews may lead us to report Terms of Service violations to the review website.

    While these different forms of negative content might inspire different courses of action, we tend to bill for each on an hourly basis.

    For a better understanding of these different fee structures and how they play into total legal costs, check out our article Retainer vs. Flat Fee vs. Contingency – What Does It All Mean?.

    Below, I explain how we handle the removal of different types of content in a bit more detail.

    Editorial Requests to Remove News Articles

    Editorial requests are a cost-effective solution for removing negative or defamatory news articles. While this type of content removal can be done without litigation, you will need the help of an attorney. The attorneys at Minc Law handle news article removals as an hourly matter.

    It is important to note that there are many situations where a news article will not be removed. In the U.S., news media are protected by the First Amendment and have many possible defenses to defamation. The approach with the highest chances of getting online articles removed is to contact the editor in a professional and courteous manner.

    One example of an editorial request that we have had some success with is the removal of old arrest records. For instance, if you were arrested and your record was later expunged, you may be able to play to an editor’s sympathies to get the old article removed.

    Report Terms of Service Violations

    If you are dealing with social media defamation or fake business reviews on a consumer review site, you may be able to bypass litigation by flagging the content. Virtually all websites have Terms of Service which users must follow when posting.

    For instance, Google’s Terms of Service prohibits fake Google reviews. If you have reason to believe a negative review was fake, you can flag the content. Google administrators then review the content for Terms of Service violations. They will remove it if it breaks their rules. This is one of the simplest (and cheapest) ways to deal with negative content, but it does require a little research into the website’s Terms of Service.

    While reporting Terms of Service violations is a great (and free) option to pursue first, the results are not always ideal. At the end of the day, the decision to remove content for Terms of Service violations lies solely with the site operators.

    DMCA Takedown Notices For Intellectual Property Infringement

    Many people fail to realize that creative works are protected by copyright, even if they have not been registered. If, for instance, you take a picture and discover someone else using that image without your consent – they are infringing on your intellectual property (IP).

    The Digital Millennium Copyright Act (DMCA) protects creative works from copyright infringement and unlawful distribution and on the internet. A DMCA takedown notice is a demand letter, and common alternative to litigation, sent to internet service providers (ISPs) hosting infringing content, requesting that they remove the content.

    If you believe someone is infringing your intellectual property rights, you can send them a DMCA takedown notice.

    To learn how much we charge for DMCA takedowns, read our article, How Much Does a DMCA Takedown Notice Cost?”.

    Cease and Desist Letters

    Defamation cease and desist letters may encourage a defamer to remove a negative post without the need to follow up with a lawsuit. Cease and desist letters notify defamers that they need to stop their illegal behavior or they could face litigation.

    While these letters should be used cautiously, they are particularly effective in sextortion cases because of the potential for extortionists to be prosecuted under relevant criminal laws.

    The “catch” is that you will need to know exactly who is defaming you in order to send a cease and desist letter. If you are fortunate enough to be dealing with a known defamer instead of an anonymous defamer, you can save some money.

    Sending a cease and desist can be cost-effective and may resolve a matter without litigation. Even if your matter requires a defamation lawsuit, a cease and desist letter is a good first step.

    How Can I Keep Costs Down Removing Online Content?

    In addition to pursuing litigation alternatives, there are several things you can do to keep costs as a minimum. In general, preparation is key.

    The more information you prepare in advance (before speaking with an experienced internet defamation attorney) the more money you can save in legal fees.

    The less time and resources your attorney needs to use tracking down contact information and other necessary documentation, the less your representation will cost!

    Best Ways to Resolve Online Defamation & Start to Repair Your Reputation

    You know the old saying, “An ounce of prevention is worth a pound of cure”? That certainly applies to protecting your online reputation. Below are five tips to help prevent online defamation:

    • Keep your social media account set to private. It will make it difficult for anonymous defamers to find you.
    • Google yourself and monitor your search results and online review platforms by setting up Google Alerts for your name or business name.
    • Use caution when commenting on controversial posts on social media.
    • If you are in business, practice good customer service and ensure your employees also understand the importance of customer service. This is one of the simplest ways to avoid negative customer reviews.
    • Be proactive about generating a positive online reputation. For business owners, this may mean asking satisfied customers to leave positive reviews online. For individuals, this could mean taking advantage of social media accounts to create professional content that will highlight your most positive attributes.

    If you have already experienced online defamation, we recommend a slightly different strategy to resolve the problem.

    First and foremost, preserve evidence of the defamation! Whether it is a negative comment, review, or an entire page devoted to harming your reputation – take a screenshot and record as much information as possible.

    Once you preserve the evidence, enlist the help of a professional who knows how to best handle the situation without drawing unwanted attention to the content. Every action you take (or do not take) after a defamation incident can impact your chances of getting the content removed or recovering damages.

    While there are things you can handle on your own, consulting with a professional is important because the type of online defamation can influence the specific actions you should take.

    For instance, at Minc Law, we respond differently to online defamation depending on where the content is posted and who has posted the content. This is why we ask clients to provide us with links to defamatory content before a consultation – so that we can provide customized recommendations and best maximize your consult.

    To learn more about how we handle consultations at Minc Law, check out our article, “What Happens During & After My Free Consultation?”.

    Other factors play into the path a matter will take as well. For example, we will want to consider if there is a defamation statute of limitations deadline approaching, whether the content is old or new, and if the defamation has gone viral.

    Internet Defamation Fact: While each state has slightly different laws regarding defamation, there are some common elements a plaintiff must prove to establish defamation. In most states, a plaintiff must prove that (1) the defendant published a false statement about the plaintiff purporting to be fact; (2) the defendant was either negligent in making the statement or acted with actual malice; and (3) the plaintiff suffered reputational and/or economic damages as a result of the statement.

    Minc Law Can Help You Remove Negative Content From the Internet

    At Minc Law, we are a one-stop-shop for everything related to internet defamation. We help clients protect their online reputations, explore all potential legal claims and methods to remove online defamation, and find creative ways to cut costs.

     

    ★★★★★

    “Facing a very urgent and difficult situation, Attorney Nadeen Hayden and her Paralegal Darcy promptly responded to my request for help within hours. They both were very compassionate, professional, and resourceful. I am now a client for life ! Regardless of what type of legal situation you find yourself relating to the internet, you can engage Minc Law with total confidence!”

    John, August 3rd, 2019

    We understand that if you have read this far, you are likely troubled by the online defamation you are experiencing and want it removed. Do not worry. We are here to help.

    If you would like a more personalized quote, we offer a free, initial no-obligation defamation consultation. You can contact the attorneys of Minc Law by calling us at (216) 373-7706, speaking with a Chat representative, or filling out our online contact form.

    You can read further about what you can expect after contacting us and what information we need from you to best maximize your consult in our blog post, “Thinking About Contacting Minc Law? Here’s What to Expect.”

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