As a business’ presence grows online, so does the number of its critics; often faceless people posting reviews on blogs or other social media websites. But when is the line between critic and defamation crossed? All business deal with criticism, whether from an unhappy customer or a business rival. However, an increasing number of business are forced to deal with a new headache, cyber defamation.
All cyber defamation attacks share similar characteristic, a negative (defamatory) statement is communicated over the internet by an anonymous critic. The elements of a cyber-defamation claim are fundamentally the same as a traditional defamation claim and commonly include:
- a false and defamatory statement concerning another;
- an unprivileged publication to a third party;
- fault amounting at least to negligence on the part of the publisher; and
- either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
While similar in many ways to regular defamation, the anonymity of the Internet creates unique issues and challenges for a cyber-defamation case. As the majority of the speakers on the Internet are anonymous, revealing the true identity of the party who made the defamatory statement can be the first and most challenging part. Prior to filing a claim for defamation, a business may choose to conduct an investigation, often using a cyber-investigation firm, in order to identify a critic. Alternative, a business may choose to file a lawsuit against the unknown critic and use the discovery process, through subpoenas, to determine their identity.
The United States Supreme Court has held that the First Amendment protects an author’s decision to remain anonymous. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). The courts have responded by developing a variety of tests to determine if a plaintiff’s interest in discovering the identity of an anonymous critic against the critic’s right to remain anonymous.
A business has several options when responding to cyber defamation, ranging from doing nothing to filing a lawsuit. The issues and risks of the potential responses should be discussed with your attorney prior to acting. Common responses are:
- Ignoring the statement
- Contacting the critic who made the statement
- Asking the Service Provider to remove the statement
- Rebutting the statement
- Filing a legal action
As society reliance on the Internet grows, so does the power of a business critics. Businesses must be aware of the threat of cyber-defamation and monitor their virtual reputation. Legal counsel is recommended when determining how to respond when faced with potential cyber defamation.
Should you have any questions about cyber-defamation, or any other law that may affect business, or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.
Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.
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