What is Cyber-Libel
by Gil Zvulony, Toronto Defamation Lawyer
Defamation on the Internet or Cyber-libel, as it is sometimes called, is when someone has posted or emailed something that is untrue and damaging about you on the internet. The internet has created the easy ability for almost anybody to communicate with almost anyone. This ability has a dark side – the average person’s reputation or a small business’s hard-earned goodwill can be harmed in a serious way.
Unfortunately, cyber-libel is becoming more common. In the past, only famous people had libel and slander issues. Today, it is the common person who must deal with this issue. For example, a disgruntled consumer, an angry ex-spouse, a competitor, or a peddler of gossip can now “vent” their frustrations about their victim cheaply, easily, and seemingly anonymously. A Google search of the victim’s name usually reveals the poisonous words for anyone that is interested.
The harm to reputation and character is real. A malicious customer review by a competitor could destroy a small business. A false accusation of adultery on a social networking site could destroy a marriage. An allegation that someone is a “crook” could be read by a potential employer or business partner.
I have seen many internet defamation cases during my career as an internet lawyer. I have decided to list my Top Ten Tips for dealing with this growing problem. Please do not take this as legal advice. Each person’s case is different and different laws apply to each jurisdiction. Some tips may work for some situations and may be harmful in others. The tips are meant to give you ideas for consideration and cannot be a substitute for sound legal advice based on your own particular situation.
1. Act Fast
One must act fast in dealing with the defamatory statements. Mark Twain said “a lie can travel around the world while the truth is putting its shoes on”. This statement is more true today than it ever was. A person’s reputation can be destroyed if remedial steps are not taken promptly. With defamation on the internet, the defamatory postings usually persist for many years and potentially forever. Believing that the posting will simply “go away” or be forgotten is, in most cases, unrealistic. The longer the posting is online, the greater the harm. If fast action is taken it may be possible to have the defamation removed before it is picked up by the search engines.
Putting out the fire before it spreads is crucial. There are also important legal deadlines that have to be met (called a limitation period) if a case can proceed in court.
2. Get Expert Help
It is important to get expert advice from a qualified lawyer. Internet libel law is a complicated area of the law. There are tricky limitation periods, multi-jurisdictional issues, technological pitfalls with the way search engines work, and technical and legal issues surrounding anonymity. Moreover, not everything that is insulting or hurtful will constitute defamation. An experienced defamation attorney will be able to quickly advise you if you have a case and the best way of proceeding. A public relations expert can help you with managing the damage. A competent search engine optimizer can help you determine the scope of the damage and ways of potentially burying the defamation. A brief meeting with an experienced defamation lawyer from the outset can avoid many problems, limit the damage, and save money in the long run.
3. Determine the Parties
With internet defamation there are usually many different parties that play a role in the dissemination of the libellous speech. There is the poster – the person who actually wrote the defamatory words. There is the internet service provider that hosts the defamation. There may be other parties to the dissemination such as search engines and other pages that link to the posting. Identifying the proper parties is crucial to attacking the problem. Free online tools such as www.betterwhois.com and http://whois.arin.net/ui/advanced.jsp can help identify the parties.
4. Determine the Scope of the Defamation
Another crucial item to determine is the scope of the defamation. How wide is the defamation? Is it something that is available to a few people such as an ephemeral ‘status update’ on Facebook, or is it something that is available on a public website where anyone who ‘Googles’ your name can find it?
A few searches with the major search engines can usually determine how wide the defamation is. At the very least, search for how many hyperlinks there are to the posting (i.e. http://www.google.com/advanced_search). Also, try to determine the site’s link popularity (i.e. Pagerank). A search using the exact defamatory words should also be done to determine if the defamatory words are repeated on different internet sites.
How long the defamation has been online is also important to determine the extent of the damage. As a general rule, the shorter something is online, the less damage it has caused. In many cases it is easy to determine the length that a posting has been online from the posting itself – i.e. the posting itself has a date on it.
In other cases it is not so easy. Fortunately there are independent ways of determining if something was online at a particular date.
For example: a search of Google’s cache can reveal whether the defamatory content was online several weeks ago.
Doing a Google search for “Toronto Internet Lawyer” resulted in the below result with a link to “Cached”.
Clicking on the “Cached” link reveals a copy of a page that Google copied a few days to a few weeks prior to the live search.
If the defamatory content does not appear on the page when Google copied it into its cache then it is safe to assume that the defamatory content is relatively recent.
Another excellent snapshot tool is the Wayback Machine (http://www.archive.org/web/web.php). This tool will crawl the web and maintain copies of how different sites looked at different intervals of time. The tool is not exhaustive and does have some limitations but it is worth searching.
Understanding the scope of the defamation is crucial to determining the best course of action.
5. Preserve the Evidence
Proving that the defamation occurred is very important. Unfortunately this is often overlooked. The defamation may be removed but you may still be entitled to sue for damages that you have suffered.
It is highly recommended that an independent person print all the postings, search engine results, and any other pages that could be relevant, including evidence that confirms the identity of the poster. If you are unsure if it is relevant then it does not hurt to include it. The same pages should also be saved in electronic form, as sometimes the printout is different from the screen display. Ideally, the independent party should then swear an affidavit/statutory declaration that he printed and saved the evidence. A copy of the printouts and a disk of the electronic evidence should be attached to the affidavit. A video of the evidence is also helpful.
Where an affidavit or an independent person is not immediately possible then the victim should printout and download the evidence until a proper affidavit can be made.
6. Consider Ignoring It
After getting legal advice about the strength of your case, and understanding the scope of the defamation the best approach in some situations may be to simply ignore the defamation. In some cases responding to the defamation may actually amplify the defamation. Truth is always a defence to defamation and in a case where the person who made the libellous comments strongly believes that they are true, it may be wise to let the fire die out. Threatening to sue someone who honestly believes that they are telling the truth may backfire. A lawsuit or the threat of a lawsuit will give the person a new opportunity to repeat the defamatory words. Ignoring it usually the best choice when the scope of the libel is very limited – i.e. very few people could actually read the libel. This is often the case where a large business has been defamed by a blogger.
Ignoring the defamation should be done only after a thorough understanding of the scope of the defamation and the relative strength of your case. In many cases, ignoring the defamation will only allow the lies to spread and increase the damage. If the posting is on a popular website then it is likely that the problem will only grow and the defamation will persist online for many years. Nonetheless, in some unique situations ignoring the defamation may be the best approach. The judgment of an experienced internet lawyer can be of assistance.
7. Consider a Refutation
In many cases the best way to combat bad speech is with good speech. This may involve creating a website to compete with the defamatory website and posting your version of the facts. A refutation must be done wisely. A refutation done improperly could lead to “flame wars” or could even raise the search engine rankings of the defamatory page.
In some cases, it may be wise to submit a comment in the same forum where the defamation was posted. A refutation posted on the same page as the original defamation should never repeat the victim’s name on that same page. Doing so will make that page rank a little bit better in the search engines for a search of the victim’s name and have the opposite of the desired effect. A well written refutation could neutralize the sting of a libellous internet posting.
8. Consider Burying It
If the page cannot be found in the first page of the major search engines when your name (and variations thereof) is searched, then the defamatory posting’s sting is usually limited. In some cases it may be worthwhile to simply create or promote websites in such a way that rank higher when your name is searched than the defamatory content. This approach makes especially good sense for businesses as the new pages could be used to market the business and improve the businesses on-line reputation. For individuals creating profiles on sites such as Facebook, My Space, Twitter, Blogger, and WordPress could cause the offending site to drop dramatically in the search engines.
In some cases, where the defamatory content appears on a popular site then it may be very difficult and expensive to outrank that site. A competent search engine optimizer (SEO) should be consulted. There are a growing number of companies that specialize in “Online Reputation Management”. People should do their due diligence before hiring a reputation management company.
9. Cease and Desist Notice
A cease and desist letter sent to all relevant parties often has the effect of having the posting removed and obtaining valuable information about the scope of the defamation. Many website owners do not want to spend thousands of dollars defending a lawsuit because of one of their users. Some simply opt to remove the content promptly upon receipt of a demand letter from a defamation lawyer. Others choose to fight. The location of the website’s operator is also relevant. Certain internet service providers enjoy some immunity from defamation actions under US law. The law is substantially different in Canada.
A cease and desist letter is highly recommended in Ontario for all internet postings before a lawsuit is started. It is highly advisable that the notice comply with the Libel and Slander Act (Ontario) and be served personally on all parties. It is also advisable in some situations that the cease and desist letter demand a retraction and/or an apology.
In many cases a cease and desist letter, sent on behalf of the victim by an experienced and reputable defamation lawyer can put the matter to a quick and inexpensive end.
Starting a lawsuit may be the only option available. It is a last resort. I often tell my clients that litigation is like chemotherapy. You don’t want to go through it unless you absolutely have to!
Litigation can be expensive, uncertain, and emotionally draining. Having said that, the damage to someone’s reputation on the internet could be more expensive and emotionally draining than a lawsuit.
In some rare and exceptional cases the defamation may be criminal. If that is the case then a police complaint should be made at your local police station.
When litigation is inevitable, an experienced internet defamation lawyer can help a victim of defamation navigate the legal and technological minefield of internet defamation litigation to a successful outcome.