How Businesses Can Combat Cyber-Defamation
March 12, 2018
Businesses, Particularly Those Who Operate Online, Must Be Prepared to Defend Against Cyber-Defamation
In the digital age, a few keystrokes can seriously impact a company’s reputation. Businesses, particularly those who operate online, must be prepared to defend against cyber-defamation. Damaging statements can occur on a range of platforms, including blogs, social media, online review sites, and website comment sections.
What Constitutes Cyber-Defamation?
In basic terms, defamation is any false statement of fact that is harmful to someone’s reputation and published “with fault” (i.e., negligence or malice). As set forth in the Restatement (Second) of Torts § 558: “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”
The elements of a cyber-defamation claim largely mirror a traditional defamation claim and 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 the elements are essentially the same, proving online defamation can be challenging, largely due to the nature of the Internet. Online speech is often extremely informal, and Internet users often use acronyms, hyperbole, and relaxed grammar. While these characteristics may be used to suggest that alleged defamatory statements are merely opinions rather than actionable statements of fact, courts have declined to excuse otherwise defamatory statements simply because they were made via the Internet.
In Cohen v. Google, Inc., a New York court rejected a blogger’s contention that because “Internet blogs serve as a mmodern-dayforum for conveying personal opinions” words such as “skank,” “ho,” and “whoring” could not reasonably qualify as statements of fact. In In re Subpoena Duces Tecum to Am. Online, Inc., a Virginia court stated that “[i]n that the Internet provides a virtually unlimited, inexpensive, and almost immediate means of communication with tens, if not hundreds, of millions of people, the dangers of its misuse cannot be ignored…Those who suffer damages as a result of tortious or other actionable communications on the Internet should be able to seek appropriate redress.”
With regard to holding “publishers” accountable for defamatory statements, courts have held that social media and blog hosting platforms cannot be liable for the statements of their users. Pursuant to the Communications Decency Act (CDA), “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The CDA defines “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” Meanwhile, an “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”
How Can Businesses Address Defamatory Statements Made Online?
When negative comments are posted to your company’s website or social media accounts, it can be tempting to simply erase them. However, that can often lead to even more negative publicity. So long as the content is not abusive, obscene or threatening, it is often advisable to leave it up and post a carefully crafted response. Of course, it is important to respond with accuracy and facts, rather than emotion.
Businesses should also be mindful of the risks of non-disparagement clauses. In basic terms, non-disparagement clauses impose monetary or other penalties on customers who post negative online reviews about a company’s products or services, or otherwise attempt to restrict those views. The Consumer Review Fairness Act of 2016 prevents businesses from contractually prohibiting consumers from posting negative online reviews.
Businesses should be aware that the Consumer Review Fairness Act only applies to the non-disparagement clauses in consumer contracts and not to other types of business agreements. For instance, the Act expressly states it does not apply to employer-employee or independent contractor contracts. It also does not interfere with civil actions for defamation, libel, or slander; a party’s right to establish terms and conditions for content created by an employee or independent contractor; or a party’s right to remove or refuse to display content that contains personal information or obscene or inappropriate material.
Takeaway for Businesses
To reduce the risks of online reputational harm, businesses should focus their efforts on improving customer service. Providing customers with an effective means to resolve disputes can often help turn an unhappy customer into a satisfied one. Of course, should a social media comment, blog post or online review cross the line between honest criticism and actionable defamation, businesses still have legal recourse and should consider whether to pursue remedies.
Do you have any feedback, thoughts, reactions or comments concerning this topic? Feel free to leave a comment below for Fernando M. Pinguelo. If you have any questions about this post, please contact me or the Scarinci Hollenbeck attorney with whom you work. To learn more about data privacy and security, visit eWhiteHouse Watch – Where Technology, Politics, and Privacy Collide (http://ewhwblog.com).