Tag Archives: defamation

Online Business Defamation and Public Forum Websites — Part II

By on October 9, 2017

            Part I of this series on Online Business Defamation and Public Forum Websites briefly touched on Section 230 of the Communications Decency Act (“Section 230”), a federal law that limits whom businesses can hold legally responsible for defamatory postings.   As previously discussed, Courts have consistently interpreted Section 230 as providing close to blanket immunity to public forum websites where the content in question is generated by a third party.  Thus, as a practical matter, claims against the Googles, Yelps and Facebooks of the world face significant legal barriers and businesses are currently better served by focusing on claims against the actual author of the posted defamatory comments, rather than the forum on which the comments were published.

            Section 230 was codified as law in 1996, right as the modern Internet came into being. It has not faced significant alteration since, even though the Internet landscape of today bears little, if any, resemblance to the landscape of 1996.  In no uncertain terms, Section 230 states, “[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.”  It is that language that has afforded modern websites (and their affiliated companies) enormous legal protections- legal protections that many of those same websites  (and affiliated companies) have lobbied extensively to keep in place as they have allowed the companies to flourish and have fostered an Internet environment where free speech is clearly protected.

            Section 230, however, has recently come under intense public scrutiny due to its rigid application creating harsh legal realities and unintended consequences, specifically with regard to the cover Section 230 has provided websites that host user-generated content that promotes and facilitates illegal activity.  Public pressure is currently mounting in favor of lessening the protection Section 230 provides to such websites (and companies) and a hotly contested bill has been introduced in Congress that would accomplish just that.  Thus, there is real potential that the momentum exists to shift the Section 230 paradigm away from the historically stringent protections afforded to companies and websites and toward allowing some form of recourse against pubic forum websites for offending hosted-content.  Regardless of the merits of such potential shift, such reform stands to have a significant impact on the potential viability of future online defamation claims.  Accordingly, business owners are well-advised to monitor the changing landscape carefully.  Should you find your business interests harmed by false or misleading statements on the Internet, consult with an attorney concerning the potential rights and remedies available to you.

Jury Awards $1,000,000 For Business Defamation Claim

By on August 3, 2017

     In a recent decision in Dallas, Texas District Court, a jury awarded $1,000,000 in damages to a wedding photographer due to defamatory statements published in the media, and in particular on internet sites and social media. 

     Every business owner fears the damage that negative comments made online can do to their reputation. With the advent of social media and ratings websites, any post can take on a life of its own, making its way around the world. In many cases there’s not much a business owner can do to combat negative opinions. However, when the posts are actually false and defamatory there may be recourse.

     In this instance, an unhappy bride and groom went public with their dispute over a $125 fee with their wedding photographer. Instead of sticking to the facts, a jury found they went far beyond that. The jury’s opinion was that many of the statements, including that the photographer stole money and did this to many other customers, were malicious and defamatory. The photographer put on evidence of severe decline in revenue immediately following the statements. The jury compensated her $1,000,000 as a result.

      While the case remains subject to appeal, it gives hope to business owners that enraged customers might think twice before getting carried away with online retribution.  If false and defamatory statements are posted about your business online, you should consult with an attorney that practices online business defamation law to consider your options.

Online Business Defamation and Public Forum Websites

By on July 15, 2017

            All publicity is good publicity — or so the saying goes.  Nevertheless, it’s safe to assume that businesses saddled with false and misleading reviews on public forum websites, such as Google, Yelp, Angie’s List and other rating websites, would strongly disagree.

            People leave reviews on such sites for many reasons: to reward good service, to offer legitimate advice, to warn of a bad experience and for other reasons. While bad reviews may be rightly earned, what happens when that is not the case?  In other words, what can a business owner do when false and misleading reviews harm business?

            In Massachusetts, a business may have a claim for online business defamation.  An online business defamation claim contains five elements.  In order to prevail on such a claim, a business must prove, “(1) that the defendant published a written statement; (2) of and concerning the plaintiff; that was both (3) defamatory, and (4) false; and (5) either caused economic loss, or is actionable without proof of economic loss.” Noonan v. Staples, 556 F.3d 20 (1st Cir. 2009).  Further, a statement is considered defamatory when it, “may reasonably be read as discrediting [the business] in the minds of any considerable and respectable class of the community.” Clay Corp. v. Colter, 2012 Mass. Super. LEXIS 357 (Mass. Super. Ct. 2012).

            Who is responsible to the business for a defamatory review? While it is tempting to want to pursue the public forum website itself, federal law, specifically, Section 230 of the Communications Decency Act (“Section 230”) limits whom businesses can hold legally responsible for defamatory postings.  Courts have consistently interpreted Section 230 as providing close to blanket immunity to public forum websites where the content in question is generated by a third party.  As a practical matter, claims against the Googles, Yelps and Facebooks of the world present significant additional challenges and businesses are better served by focusing on claims against the actual author of the posted defamatory comments, rather than the forum on which the comments were published.

     Should you find your business interests harmed by false or misleading statements on the internet, you’d be well-advised to consult an attorney concerning the potential rights and remedies available to you.

Online Business Defamation: A New Frontier

By on May 5, 2015

The explosion of business review websites and social media applications brings not only opportunities for businesses to get exposure, but also risks of very public negative commentary.  While everyone is entitled to express opinions, that entitlement does not extend to protection for posting demonstratively false statements of fact about businesses online. It is imperative for business owners to monitor online rating websites and relevant social media forums, in order to quickly spot reputation-harming online business defamation. The longer the posts remain up, the greater the potential harm to the business.   

You’ve Spotted a Defamatory Post- Now What?  

When confronted with online defamation businesses have few options.   First, a business may contact the host website to request removal of the defamatory post.  Websites have a wide range of policies regarding online business defamation. Some will directly review and remove clearly defamatory comments, some will do nothing whatsoever, and some fall on the spectrum in between. Second, the business owner may try contacting the author, to reconcile differences and have them voluntarily remove the post. Finally, if the first two options fail or are seemingly unavailable, the next step may be to consider consulting an attorney and pursuing a legal remedy.

Legal Framework of an Online Business Defamation Claim

In Massachusetts, there are five elements that comprise an online business defamation claim. A business must prove, “(1) that the defendant published a written statement; (2) of and concerning the plaintiff; that was both (3) defamatory, and (4) false; and (5) either caused economic loss, or is actionable without proof of economic loss.” Noonan v. Staples, 556 F.3d 20 (1st Cir. 2009). Further, a statement is considered defamatory when it, “may reasonably be read as discrediting [the business] in the minds of any considerable and respectable class of the community.” Clay Corp. v. Colter, 2012 Mass. Super. LEXIS 357 (Mass. Super. Ct. 2012). It is also worth noting that, in the context of online business defamation, federal law limits who businesses can hold legally responsible for defamatory postings. Businesses can generally bring a claim only against the actual author of the defamatory comments and not the hosting website where the comments are posted. 

A recent Massachusetts case, Clay Corp. v. Colter (Mass. Super. Ct. 2012), signaled that it is possible for a business to make a viable case against the author of online defamatory comments. In that case the court entered judgment in favor of the defamed business, finding the authors liable for $750,000, to compensate for the defamatory impact to the business. The court, however, stopped short of ordering that the authors remove the offending posts, citing First Amendment free speech as a limiting factor. Thus, while courts are seemingly willing to rule in favor of defamed businesses the First Amendment may impede full relief.    

Takeaway

The Internet can be a business’s best friend just as easily as it can be a business’s worst enemy. Online posts are immediate and far-reaching, so reaction must be swift. Thus, it is vitally important to police what is said online and understand what options and legal remedies are available to protect your business and your livelihood from online business defamation.

For more information contact Chris Strang. Partner at Strang, Scott, Giroux, & Young, LLP.