The Basics: Should You File a Lawsuit Over Online Defamation?
All thanks to this blog, I get a lot of calls from both individuals and businesses that have questions about removing derogatory, malicious, and false online defamation and unwanted content from the Internet. Inevitable, during many of these conversations, the topic of litigation often comes up, with the most common question being; Is a lawsuit the way to go in order to remove false online information and recover damages?
In a highly nuanced area of law, one with many twists and turns, it’s not always as simple as a yes or no answer – it often depends on the particular situation at hand. For instance, sometimes filing a lawsuit can be a good idea. If you or your business has been maliciously defamed online on a website like RipoffReport.com or another scam-reporting website, obtaining a court order to remove the information from search engines can sometimes be one’s only chance for relief.
However, litigation isn’t always the most appropriate course of action. In fact, filing an ill-advised defamation lawsuit can lead to disastrous consequences, such as:
- Drawing more unwanted attention to the malicious and derogatory content (i.e. the “Streisand Effect”), &
- The possibility of counterclaims – which can lead to an opposing party collecting attorneys fees and punitive damages (punishment damages).
Additionally, even pursuing other methods of removals and takedowns can have severe consequences – such as when serving a party with a DMCA takedown notice. To read up on whether you should serve a DMCA (Digital Millennium Copyright Act) notice on a party who posted infringing content, check out our comprehensive article here.
The decision of whether to ligitate and bring a defamation lawsuit is not to be taken lightly, as there are a number of critical factors that must be evaluated before deciding whether to file an action. Below you’ll find a comprehensive list of the most important factors that should be considered when making this decision.
Ohio Defamation Law Fact: Ohio defines the legal doctrine of defamation per se as defamatory statements which (1) impute a charge of an indictable offense involving moral turpitude or infamous punishment (2) impute a contagious or offensive disease on someone, (3) injure a person’s trade or occupation, & (4) subject a person to public ridicule, hatred, or contempt.
When striving to understand the below factors surrounding defamation lawsuits, it’s important you reach out to an experienced defamation removal attorney. The defamation removal attorneys of Minc Law are here to fight for you, and have litigated in over 19 states and 3 countries, and have secured hundreds of takedowns.
Take note that not all online defamation removals and takedowns were secured through litigation. Minc Law’s internet defamation lawyers know how to work with website administrators, content managers, and third-party arbitration services to help you find the smoothest solution to permanent and swift defamation removals. Aaron and his team know who to work with and how to work with them – and are here to fight for you.
Reach out to Minc Law today by calling us at (216) 373-7706, or by scheduling a meeting online. The defamation removal lawyers want to help restore your reputation and hold the necessary parties accountable for their actions.
Put an end to the online abuse today!
Do You Have an Online Defamation Case?
First and foremost, the most important question and assessment that needs to be made is on the merits of the case. Every case is unique and only an experienced online defamation attorney who is familiar with lawsuits of this nature and the laws of your state – or the state where the lawsuit may be filed – will be able to properly assess the merits of your potential action.
However, below are some of the most critical factors in assessing the merits of your case:
- Falsity: Whether the information is false, disparaging, or creates a false light even if true;
- Constitutionally protected: Whether the statements made or published are considered constitutionally protected speech – such as opinion or fair comment;
- Offensive: Whether the information published is offensive and/or invasive of an individual’s privacy or expectation of privacy;
- Intellectual property: Whether the published information violates copyright, trademark, or other intellectual property laws;
- Name & likeness: Whether an individual’s name or likeness is being used illegally, without consent, and for profit;
- Illegal: Whether the published information was obtained illegally and through unauthorized access to his/her private accounts or databases; &
- Statute of limitations: Whether the claims are still actionable under the applicable statute of limitations;
Although every situation is unique and deserving of its own assessment, if there are serious issues or red flags concerning the merits of a potential case – more often than not – filing a lawsuit will not be worth the trouble. Having a strong case can be necessary to subpoena the identity of the anonymous authors and to overcome counterclaims under Anti-SLAPP statutes (Strategic Lawsuits Against Public Participation).
Note that SLAPP lawsuits are suits filed by one party in order to burden, intimidate, censor, or overwhelm another party with legal costs and ultimately cause them to withdraw their claim.
Libel Removal Tip: A lot of people commonly confuse business/commercial disparagement with defamation and libel. Business disparagement is a claim suited for businesses looking to protect their financial rights and property, while defamation is geared towards protecting a person’s reputation.
Even in a default action, when a defendant fails to show up to defend the case, the merits of a case must still be proven to a judge. And, if claims are dubious or defenses are obvious, relief will not be granted.
Furthermore, when a case is strong, many of the problems and difficulties inherent in litigation become far less daunting and troublesome. Simply put, less time, energy, and expense will be needed to advance a claim and obtain relief.
In sum, it should be no surprise that the strength of a case is without a doubt the most important factor that must be first examined before deciding to proceed with a defamation lawsuit.
Defamation Removal Tip: If you are engaged in one of these high-risk professions, you should consider purchasing defamation insurance; (1) Journalists, (2) Independent contractor, (3) Blogger, (4) Anyone else who frequently writes about public figures and contentious topics.
Do You Know Your Enemy?
Even if a case is likely to succeed on its merits, it’s important to familiarize yourself with who the defendant on the other side of the lawsuit is. Doing so will make all the difference.
That is, if the identity of the defendant is known at all. Unfortunately, in many online defamation cases, content is authored, curated, and posted by individuals who are anonymous and cannot be easily identified. You can thank extremely lax verification and regulatory mechanisms utilized by user-generated content platforms and ISPs.
At its simplest, if the author of a website post or comment is anonymous, litigation becomes infinitely more timely and expensive, as steps must be first taken to identify and prove the identity of the author or poster. This usually requires what’s known as the filing of a “John Doe” lawsuit – or a lawsuit against a fictitious individual – followed by the registration or filing of the case in out-of-state jurisdictions in order to subpoena webmasters, site administrators, and internet service providers (ISPs) for IP addresses and other account information. Such process can become very complicated very fast, and computer forensic experts are sometimes required in order to assist with the case.
So, what happens when the identity of the defendant is known or can be proven?
Known & Identified Defendants
Even if the identity of the defendant is known or can be proven with readily available evidence, it’s still necessary to evaluate what sort of response can be expected from the defendant. Here are a few questions you should ask yourself when determining the strength and overall willingness of your opponent to go to court.
- Will the person or organization show up to defend the case?
- What’s the likelihood that they show up to defend the case?
- Will the defendant be able to afford the lawsuit?
- Is this defendant located out-of-state?
- Is there a long-arm statute which allows for jurisdiction over the defendant?
- How strong of a defense will they have?
- Are there any lesser known defenses they may rely on?
- Will a lawsuit cause even more harmful, malicious, and derogatory information to be posted?
- Will the lawsuit attract media attention?
- Will I even be able to collect damages from the defendant if an award is obtained?
Now, think about your case and think about the defendants. All of the above questions should be considered and evaluated before bringing a defamation lawsuit.
Defamation Law Fact: Remember that truth and opinion are both common defenses to a charge of defamation. After all, the truth may hurt, but it doesn’t mean it should be censored. And, be on the lookout for parties who combine statements of false fact with opinion. Just because they sugarcoat false and defamatory statements, doesn’t mean they aren’t liable for defamation.
Before bringing a defamation claim, it’s important you reach out to an experienced defamation removal attorney to discuss your options for identifying a defendant. Doing so will increase your chances of securing a permanent and swift removal.
The abuse stops today!
The Wild Cards
Once a lawsuit is filed – NOTHING is guaranteed. Litigation is the equivalent of war and although lawsuit may generally run a standard or familiar course, there are certain risks and uncertainties in any type of lawsuit that may never fully be removed. Such risks include:
- Costs: Unexpected costs due to prolonged discovery, a pugnacious and overzealous opposing counsel, expert witness fees, deposition costs, court costs, and travel expenses;
- Counterclaims: Possible counterclaims or third-party claims asserted by the defendant which could then impute liability on you.
- Judicial bias: Being assigned a judge with an inherently unfavorable disposition towards your case;
- Jurisdiction bias: Bringing suit in a jurisdiction which has historically ruled in favor of the defendant in these types of cases;
- Law change: Change in the status of the law;
- Media: Unfavorable media attention or publicity, ultimately drawing unwanted attention and traffic to an embarrassing, humiliating, or defamatory post or picture; &
- Unfavorable results: The chance of an unfavorable result or outcome.
Although most of the times such risks are relatively remote, they still should be evaluated and considered before deciding whether a defamation lawsuit is right for you or your business.
Cases seeking to remove derogatory and defamatory content from the Internet present certain unique risks and uncertainties that aren’t often present in normal legal cases.
For example, in defamation suits, it’s especially important to analyze the risk of counterclaims, as many states have Anti-SLAPP statutes, which means that an ill-advised lawsuit can lead to counter lawsuits being filed that seek attorney’s fees and punitive damages (punishment damages) against a plaintiff.
Another risk that is quite pronounced in the realm of defamation is the uncertainty of the law, or a chance of a possible change in the status of the law itself. Internet defamation and related removal claims are on the cutting edge (and sometimes the bleeding edge) of technology and the law. Think about it, online defamation is a product of the new age and the technological advancements of the 21st century. Before, libelous statements barely stood to leave a community or municipality. Today, libelous and defamatory statements stand to spread to every corner of the globe.
Many states and jurisdictions haven’t even issued formal opinions and precedent regarding standard procedural defamation issues and it can be near impossible to predict how a court will rule on certain issues.
As mentioned in the first paragraph, the “Streisand Effect” carries certain risks, where you actually end up publicizing the information to a wider audience. The name comes from a 2003 incident where Barbra Streisand tried to suppress photographs of her Malibu home, but ultimately, it ended up receiving national media attention and doing the opposite of what she envisioned.
Another minor issue to keep in mind the the issue of insurance, as most parties don’t have excess liability coverage or defamation insurance. If you’re curious about defamation insurance and would like to read up on it further (and the parties who are at the highest risk of defamation lawsuits) check out our blog post titled, “What is Defamation Insurance, & Do I Need It?”
It’s clear that these additional unique risk factors and uncertainties make defamation lawsuits the near equivalent of the Wild Wild West. Therefore, it’s critical to retain an experienced defamation attorney that has experience in bringing lawsuits of this nature.
Online Defamation Tip: When recovering damages in a defamation case, the four most common forms of damages sought are (1) Presumed damages – damages which typically don’t require a plaintiff to prove harm, (2) Special damages – damages which require a plaintiff to prove a special injury occurred, (3) Actual damages – damages which require a plaintiff to prove they suffered a tangible effect or harm, & (4) Punitive damages – damages typically requested to punish a defendant for acting in an especially malicious or wanton manner.
Possible Alternatives to Litigation
So, what are the alternatives to litigation?
Luckily, because online defamation is a product of the Internet and advanced technology, it can also be suppressed or taken down with such. Keep in mind though that sometimes obtaining a court order is the only way to remove defamatory and derogatory information from the Internet. However, below are just some of the alternative methods of removal.
- Cease and desist letters: a cheap and easy way to let the other party you mean business and if they don’t comply, that you will be following up with more serious legal action;
- DMCA takedown notices: If there is unconsented or unauthorized content of your posted on the Internet – content which you own the copyright to – note that websites are not protected from liability for having such on their site.
- Strategic marketing: Google and other search engines run on complex content assessing algorithms. What we’ve found out is that these algorithms tend to favor positive content. Try making your social media profiles public, or starting a blog and frequently updating it. Doing so will help you craft your own story and suppress negative search results to where they no longer have a visible or tangible impact on your life.
- Public relations maneuvers: Sometimes addressing the statement head on is a way to draw attention to your case, and the other party will either realize they haven’t scared or intimidated you in the way they thought, or it’s no longer worth keeping the information up.
When considering whether you should file a lawsuit over online defamation, you should explore all alternative takedown and removal methods with your attorney.
Defamation Law Fact: The United States is generally considered a more favorable legal jurisdiction for defendants due to its longstanding history of upholding the First Amendment, while European and other Commonwealth countries are typically considered pro-plaintiff. Keep an eye out for forum shopping, or when a plaintiff seeks to bring their claim in the most favorable jurisdiction.
Work With Defamation Removal Lawyers to Discuss Whether a Defamation Lawsuit is Right For You
If you or your business have been the victim of online defamation and you’re unsure of whether to file a defamation lawsuit, contact the defamation attorneys of Minc Law today! At Minc Law, defamation attorney Aaron Minc and his team have litigated hundreds of defamation cases, securing removals across over 19 states and 3 countries. Aaron and his team boast a nearly 100% removal rate, and all for a flat reasonable fee.
Aaron and his team will help walk you through the strengths and hurdles of your claim, preserving evidence, and ultimately, what the best path is for you to restore your reputation. Additionally, Aaron and his team will help you explore alternative options to a defamation suit.
Here’s what you can expect when working with the defamation removal attorneys of Minc Law:
- Courtesy & Respect: Aaron and his team know how stressful and overwhelming online defamation can be, so know that you will be treated with the utmost respect and courtesy when working with Minc Law.
- Open Communication: Some lawyers go missing after having reached out to third-parties to initiate the removal process, not Minc Law. Aaron and his team will stay in constant contact with you regarding your removal, and update you on any new happenings in your case.
- We Get Results: At Minc Law, we get results. Websites and businesses respond to Minc Law, as we’ve worked with countless website administrators, content managers, and third-party arbitration firms to secure permanent removals. And, our attorneys have been nationally recognized for their aggressive yet compassionate counsel.
Don’t hesitate. Online defamation is like a wildfire, the longer you let it sit and spread, the more damage it’s going to do. Reach out to Minc Law today to schedule your free, initial no-obligation consultation by calling (216) 373-7706, or by scheduling a meeting online.