Top 10 Tips for Internet Defamation Victims

by Gil Zvulony, Toronto Defamation Lawyer

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. Putting out the fire before it spreads is crucial. It’s been 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 can spread quickly and can persist for many many years and potentially for a person’s life. Believing that the posting will simply “go away” or be forgotten is often 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 spread.

(There are important legal deadlines that have to be met 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 lawyer 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 libelous speech. There is the author – 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 social networks. Identifying the proper parties is crucial to attacking the problem.

4. Determine the Scope of the Defamation

It is crucial to understand the scope of the defamation.

How wide is the audience of the defamation? Is it something that is available to a few people such as a private email, or is it something made available to thousands?

A few searches with the major search engines can usually determine how wide the defamation is. A search using the exact defamatory words can be done to determine if the defamatory words are repeated on different sites.

How deep is the defamation? How long has the defamation been around? Have the rumors taken hold? Are people talking about it? Are people coming to ask you if the defamation is true? Are people taking the defamatory allegations seriously or are they ignoring it?

Understanding the scope of the defamation is crucial to determining the best course of action.

5. Preserve the Evidence

Proving that the defamation was published 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 capture the evidence. If this is not possible then the victim should preserve the evidence.

It is important to screenshot and print all the postings, search engine results, and any other pages that could be relevant. Do not forget to 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.

Pages should be printed and 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 dvd disk of the electronic evidence should be attached to the affidavit. A screen video of the evidence is also helpful.

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. To be clear, in many cases ignoring it is not an option. The defamation will increase over time and your reputation will be ruined for a long time. (See Act Fast above).

Having said this, ignoring the defamation may be wise where it will be quickly forgotten and is unlikely to take root. Ignoring it may also be an option when the sting of the defamation is relatively weak. That is to mean, the words used are simply not that damaging to you.

Ignoring the defamation may be wise where a response would actually amplify the defamation. Beware that there are people out there who thrive on controversy. They relish in legal battles over seemingly trivial matters. Getting legally entangled with these people is something to be avoided. Simply letting the fire die out on its own should always be considered as a possibility.

Ignoring the defamation should be done only after a thorough understanding of the scope of the defamation and the relative strength of your case. Removal should always be your first choice. Ignoring the defamation may allow the lies to spread and increase the damage. Nonetheless, in some unique situations ignoring the defamation may be the best approach. The judgment of an experienced lawyer can be of tremendous assistance here.

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. Be aware that doing so may 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 should strive to neutralize the sting of a libelous internet posting.

(CAUTION: If you are considering writing a response to an online posting. Be aware that by posting on the same website that publishes the defamatory content, you may be binding yourself to that website’s terms of use. Most term’s of use agreements have a limitation of liability clause that prevent users of the site from suing the website for defamation.)

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 some individuals burying it might be as simple as joining some social networking sites.

In other cases, where the defamatory content appears on a very 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 quick 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.

10. Sue

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 (R. v. Simoes, 2014 ONCA 144 (CanLII), <http://canlii.ca/t/g469m>). If that is the case then a police complaint should be made at your local police station.

When litigation is inevitable, an experienced lawyer can help a victim of defamation navigate the legal and technological minefield of internet defamation litigation to a successful outcome.