LAW MATTERS TO BUSINESS
Fighting Defamation
What to do when the online mob comes for you by Robert Feinberg and Ian Joyce
Robert Feinberg is a partner at Snell & Wilmer. A criminal defense attorney in Phoenix, he is part of the firm’s Special Litigation and Compliance Group. He has a broadbased litigation and trial practice. Feinberg conducts internal corporate investigations, identifying issues and formulating front-line tactical response plans to address alleged workplace misconduct.
Ian Joyce is an associate in Snell & Wilmer’s special litigation and compliance group who focuses his practice on constitutional litigation. He has represented government entities in connection with procedural and substantive due process, equal protection, and takings issues, among other things. Ian also has experience advising clients on matters related to the First Amendment, including defamation. swlaw.com
AUG. 2021
50
INBUSINESSPHX.COM
Imagine Googling your name to find that you’ve been hijacked by a computer-savvy foe, who has cleverly labeled you a convicted sex offender, drug dealer or even worse. Rather than your usual business picture and bio, what pops up is completely false — the most damaging, horrific and graphic portrayal — and threatens to destroy your business and reputation and livelihood; indeed, your entire life. Query: What do you do about it? What can you do? This article will identify and examine this growing problem and provide some practical guidance if you should find yourself ensnared by it. While the above scenario is all too real, varying degrees of false information spread happens every day, and managing one’s reputation, business and personal interests can be challenging. It is becoming all too common for people to make false statements — often anonymously — about businesses or professionals in online forums, on social media, posted to consumer review sites and by blogging. Seen at a glance by a wide audience, the damage can spread like a cancer, informing potential customers, business associates and friends and family. A multidisciplinary response may be required in the face of such a crisis. Consider carefully evaluating the manner, type, and scope of the harm ; and formulating a game plan to quash it.
IDENTIFY THE WEBSITES AND INDIVIDUAL(S) BEHIND THE DEFAMATION
Identifying the scope of what specifically has been said about a person and where the statements are located is typically straightforward. Finding out who has made them often requires time, money and resources. While a cursory investigation may reveal the poster’s identity, most often the bad actor goes to great lengths to hide. A suspicion may exist as to identity, but hard evidence typically needs to be gathered. Legal counsel can lead the charge, using a team of other professionals to get to the bottom of what is happening. For example, counsel can coordinate with private investigators, computer and forensic experts, law enforcement and others. A “John Doe” lawsuit, may be appropriate under certain circumstances, which might possibly serve to provide legal authority to subpoena a host website, blog or other venue for the poster’s identity. Some websites that otherwise have no problem with identifying anonymous posters will not do so unless first required by court order [e.g., Matter of Cohen v. Google, 25 Misc. 3d 945, 946 n. 1 (N.Y. Sup. Ct.. 2009)].
Any response to false or harmful online speech is inherently limited by Section 230 of the Communications Decency Act, which immunizes from defamation liability those websites that simply host content but do not create or edit content.
