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Posted: October 3, 2016

Client Q&A: Someone made a posting on a website that is not just untrue, it also is hurting my business. Is there anything I can do?

Someone made a posting on a website that is not just untrue, it also is hurting my business. Is there anything I can do?

By John M. Lundin

As the internet has grown, so, too, has the problem of people writing things that are false about businesses or other people. Most of us know to take some of the things we read on the internet with a grain of salt, but even so, the basic rules of defamation law apply to the internet. If someone writes something defamatory about you on the internet, they can be held liable.

Very generally, for a claim to be defamatory, it has to be false, be made to a third party (that is, it cannot be just between you and the person who writes or says it) and it has to damage you. And if you sue someone for it, you have to plead specifically what was said and when it was said. If it is written on the internet, most of these elements are easy to satisfy. So, if the poster gives his or her identity, and you can show how you were damaged, you can sue them for defamation.

With the internet, there can be big challenges associated with determining who made the defamatory statement, and thus who to sue.

Who Made the Statement?

One of the biggest challenges in doing something about on-line defamation is that it can be difficult to figure out who made the statement. On the internet, posts, comments and similar statements often are anonymous or made under pseudonyms. So, you may know exactly what was said and when it was said, but not who said it. And if you do not know who made the statement, it is hard to do anything about it.

You may have to subpoena the website or internet service provider to discover the poster’s identity. This can take some time, but if the website or internet service provider from which you are seeking information is in the United States, and if you can show that you have a valid claim, a court usually will order the disclosure of the poster’s identity.

If the website is hosted outside the United States, it probably will not be possible to get any information from it. As a last resort, there are private investigators who sometimes are successful in discovering a poster’s identity.

Even if you learn the poster’s identity, if they are outside the United States, it may be hard to sue them here. That is, even if you have a claim against them in, for example, New York, it may be difficult to have them served with court papers outside the United States. And if you obtain a judgment against them, it may also be difficult to enforce it.

Suing the Website

If the internet service provider gives you the information it has about the poster, it may be that the poster has disguised his or her identity and location, so that even the internet service provider cannot find them.

If you cannot find the poster, why not just sue the internet service provider that hosts the defamatory comment? As discussed above, with a little work, you can learn who the internet service provider is. While there are exceptions, the general rule is that federal law protects internet service providers from being sued for things other people post on websites that the providers provide.

Conclusion

After reading this, you might think that there is nothing to be done if someone defames you on the internet. Not so! Sometimes, it is no different than–indeed easier than–defamation has always been. It is just that the anonymity and ubiquity of the internet can sometimes make it challenging to bring a claim. If you have been defamed by someone on the internet, you need to know that these complications exist. They often can be overcome. We have experience in this area and perhaps we can help you, too.

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