How Brands Can Fight Online Defamation

Reputation is everything on the Internet. Brands often wonder how to protect themselves from online defamation.

While social media platforms can bolster a reputation, one post can go viral quickly and damage a business’ reputation. Businesses must tread carefully when faced with an upset customer or competitor. The line between protected free speech and online defamation is a fine one, and fact specific. Public backlash against an overly aggressive brand can be fierce.

Kyle-Beth Hilfer recent discussed online reputation management with Domenic Romano and Molly Mauck of Romano Law PLLC. Hilfer asked Domenic and Molly a series of questions to help flesh out a brand’s options when they confront online defamation.

Let’s start with a simple question. What is defamation? What is not defamation?

Domenic: Defamation is the publication or communication to a third-party of a false statement of fact about a person or business that causes harm to the person’s or business’ reputation. It can be in writing (which is called libel), or it can be verbally communicated (which is called slander).

Molly: Defamation claims are based on the facts of each situation or claim. Generally, opinions cannot be considered defamation. Most opinions are speech protected by the First Amendment of the United States Constitution. For example, online defamation is NOT a customer stating her honest negative opinion about a brand’s product or service.

Is defamation law the same in every state?

Domenic: Defamation laws vary from state to state.In New York, defamation requires proof of the following four elements in order to succeed, whether it is online defamation or in some other medium:

• There was a false statement of fact;
• The statement was published to a third-party without authorization or privilege;
• The person being accused was at fault; and
• As a result, there was some harm done to the accusing party – or the statement constituted defamation per se.

You mention defamation per se. Does this mean you do not have to prove harm caused by the defamatory statement?

Molly: You do not have to prove any economic loss or injury. Defamation per se means the statements are so obviously harmful that damage to the subject-person’s reputation is presumed.New York has four categories of defamation per se statements, which relate to false claims about criminality, professionalism, sexual morality, or disease status.

If it is not defamation per se, then how hard is it to prove that the online defamation has caused harm?

Domenic: Generally, it depends on the situation.The business will need to show how its reputation or business was harmed by the false statement.For example, the business could show that it lost work or customers because of the false statement.It is important to save evidence of any harm to the business based on the online defamatory statement.

Can a business’ competitors be guilty of online defamation? Or just consumers? Who is liable for defamatory posts on social media?

Molly: Any person or entity that makes a defamatory statement can be liable for it. This includes consumers who defame a business in an online review, regardless of whether it is written on social media, a blog, a website, or orally. It also means that competitors of a business may be liable if their advertising or marketing materials contain online defamation.

If a business believes that a customer review is online defamation, isn’t the first step to negotiate before jumping to litigation?

Domenic: Yes, the best practice is to try to address the problem without litigation. A court battle could escalate and have public relations consequences for a business. The brand can start by posting a polite response online indicating the business’ desire to resolve the problem offline. At the same time, the business should try to contact the person offline regarding the complaint.  If you can settle the matter, ask the person to take down the review or post a retraction.

If your settlement efforts fail, that still doesn’t mean that a business should litigate against a consumer, right?

Molly: Yes, the business will have to weigh its odds of success in litigation, the costs of litigation, and the public relations damage from suing, against the harm of the defamatory or damaging statement remaining online. An experienced lawyer can help a business weigh the risks and benefits of online defamation litigation.

If there are enough positive reviews, maybe it’s not worth pursuing one instance of online defamation by a consumer, right?

Domenic: Yes, the business should try to encourage satisfied consumers to post positive reviews to counter negative ones.The online defamatory statement may have little impact if there is sufficient volume of positive reviews.

On the other hand, if a competitor is engaged in online defamation, that could be more serious, right? The harm can be far greater and more sustained. What can a brand do there?

Molly: Where you know or suspect a competitor is the source of online defamation, it is important to get an attorney involved as soon as possible to assess the possibility of an online defamation claim. There are various possibilities for pursuing the competitor and mitigating damage to the brand.

What about other potential causes of action, including false advertising, trade libel, trademark dilution, and more?

Domenic: Exactly.The business’ legal team would analyze any potential causes of action and devise a strategy for contacting the competitor to demand takedown. Ultimately, the defamed entity may have to consider litigation.

What about contacting the website host or social media platform that hosts a  defamatory statement?

Molly: Yes, a brand may elect to contact the website hosting the review and ask the site to remove it if the review is factually inaccurate. Generally, websites are not required to take down the review, but they may agree to do so. Some websites have policies about handling  defamatory statements. Typically, these policies are located on the main page near other legal disclosures like the website’s privacy policy or terms and conditions.

If the hosting platform refuses to take action, the business has little recourse against the hosting platform under current law, right?

Domenic: It would be difficult. Internet service providers (“ISPs”) or hosts of websites are generally not liable for defamation published by a user of its platform. Section 230 of the Communications Decency Act (“CDA”) shields ISPs and websites from liability with limited exceptions. They are protected even if they attempt to moderate posts or fail to remove a post upon request.

But as these online platforms attain more power over the marketplace, isn’t there a political movement afoot to amend their Section 230 shield?

Domenic: Both liberals and conservatives seek changes in the CDA for various reasons.Some groups want websites to do a better job of moderating to eliminate objectionable content.Others believe moderating interferes with free speech.

Molly: There is also a growing call for overall transparency from tech companies and websites. Basically, the conversation around a modification of Section 230 is likely going to continue.However, it is still unclear when and how any such modification would take place.

Is evidence on social media discoverable or admissible in court?

Molly: Public and private social media posts and messages may be discoverable and admissible evidence in court in a defamation case. As a result, it is essential to keep records, including dates and times, of what you and the other party have posted.

What if a brand is accused of online defamation? How can it defend itself?

Domenic: There are a variety of defenses to defamation. Which defense applies, will be based on the facts of the situation.Truth is an absolute defense to a defamation claim. Most opinion speech is protected by the First Amendment and cannot be defamatory. Other defenses, such as consent and privilege, usually are less applicable in the commercial context.

Conclusion

Online defamation can be difficult to prove, and take-downs are challenging and expensive. After her talk with Domenic Romano and Molly Mauck, Kyle-Beth Hilfer devised the following best practices for advertisers as a starting point in dealing with online defamation:

• Preserve all records and evidence.
• If a brand is engaging in comparative advertising, strong substantiation for comparative claims is essential for disproving a claim of online defamation.
• Have a strategy in place for monitoring consumer generated content online and a proactive plan ready for combatting the effects of negative reviews.
• Consider including arbitration clauses in your consumer facing terms of use. Arbitration is confidential and avoids public scrutiny of a brand’s battle with a consumer. On the other hand, these clauses need to be drafted carefully as there is a movement to limit their enforceability.
• If a brand is concerned about a competitor’s online defamation, it should confer quickly with legal counsel to consider options. Those options may include negotiation, requesting take-down from hosting platforms, challenging the competitor before the National Advertising Division of the Better Business Bureau, or court litigation. Each has its benefits and risks.

For more information, contact Kyle-Beth Hilfer.