We live in a world where the Internet gives a “lone voice in the public square a megaphone large enough to be heard in the most remote corners of the planet.” Hassell v. Bird (2018) 5 Cal.5th 522, 566. And this loudest of “megaphones” broadcasts the speaker’s message repeatedly—often for years—and sometimes forever. As with any technology, this powerful “megaphone” can be used for good purposes—and for bad ones.
Reputations that individuals and businesses have spent years to build can collapse based on a single unsubstantiated online allegation. Small businesses have had to shutter their doors permanently because a single (and often untrue) online review went “viral.” Individuals have found themselves shunned by their communities based on false accusations that were posted online.
While the laws governing such incidents are complex, in California, if someone posts an online review about you that is false and “unprivileged,” and which exposes you to “hatred, contempt, ridicule, or obloquy, or which causes [you] to be shunned or avoided, or which has a tendency to injure [you] in [your] occupation,” then that person has defamed you. Code Civ. Proc. § 45. So, what are your options?
Most victims of online defamation are interested, first and foremost, in removing the offending content from the Internet. A variety of factors come into play:
What is the nature of the content that was posted? Certain postings, such as those containing explicit death threats, are crimes—and the authorities should be contacted. Some postings, while not criminal in nature, are protected by specific laws that have unique procedures to address violations, such as videos or pictures that violate copyright laws. Most often, however, the offending content is not a criminal act, and there is no specific law that governs its removal from the Internet. In such cases, you will have to resort to civil remedies.
Who posted the offending content? If the defamer is easily identifiable, sometimes a simple cease and desist letter will do the trick and the person will voluntarily remove the content. If they refuse, you will likely need to file a lawsuit to compel them to remove the offending content and/or for damages. If you don’t know who posted the content, then you will likely need to file a lawsuit to identify him or her. Many times, obtaining identifying the defamer can be accomplished by issuing subpoenas. Sometimes, a more thorough and technical investigation will need to be undertaken.
Where was the online content posted? Some online platforms will reasonably accommodate legitimate requests to remove offending content. Other platforms will fight mercilessly to prevent the removal of online content except under the most extreme circumstances—even if the defamer requests that the content be removed. In the recent landmark ruling of Hassell v. Bird, the California Supreme Court held that a California court cannot compel an online platform to remove defamatory content—even if the defamer him or herself was ordered to do so by the court. This is because a federal law known as the “Communications Decency Act” provides online review platforms immunity from lawsuits based on one of their user’s postings. This area of the law is evolving and complex. More than ever, if you are the victim of internet defamation, you need to speak to experienced counsel.
In addition to seeking removal of the defamatory content, many victims wish to sue the defamer for economic damages and emotional distress. While often successful, these lawsuits can be complicated and present unique challenges and considerations not often found in other kinds of civil litigation. You must exercise your right to sue within a very short period—often as little as within 1 year of when the content was posted.
Preservation of evidence is critical. The removal of information from the Internet before it is properly preserved can result in the permanent loss and destruction of crucial evidence needed to bring an action against a defamer. Certain websites may, on their own accord, delete crucial forensic evidence necessary to identify the source of the defamatory content. Often, data is kept for very short periods of time. Therefore, it is crucial that you act as soon as possible—time is of the essence!
Being the victim of internet defamation can be devastating—but there are things you can do to fight back. If you find yourself in this unfortunate situation, do not delay in contacting experienced internet defamation counsel as soon as possible.
A Word on Nonconsensual Pornography (“Revenge Porn”)
Thousands of people have been horrified and traumatized to learn that private and intimate photographs or videos of themselves have been posted on the Internet without their permission. If you are a victim of nonconsensual pornography, it is important that you contact an attorney immediately. If you cannot afford the assistance of a private attorney, please contact the Cyber Civil Rights Initiative at www.cybercivilrights.org. If you require immediate assistance, please call the CCRI Crisis Helpline at 844-878-2274—support staff are available 24 hours a day, 7 days a week. If you are a victim of cyberbullying and online harassment, consider joining HeartMob, an online support community, at www.iheartmob.org.