The trouble with online defamation

This article was originally published on Web•Tech•Law on 2011–10–26

I frequently receive calls or emails from people asking for help with online defamation, usually on Facebook. The people who contact me are often at their wits’ end and want to sue the people defaming them, thinking that will fix the problem. Unfortunately, that can often make it worse. The challenge with online defamation is that the usual legal approach can aggravate the harm being suffered and the better course of action doesn’t necessarily fix anything. Dealing with online defamation is often a matter of damage control and this is primarily due to the social Web’s nature.

Social networks like Facebook, Twitter and Google+ empower their users to express themselves on a scale typically not seen before the Web became social. This has shifted power dynamics in profound ways. We recently saw how Facebook and Twitter played important roles in the Arab Spring in Egypt and other countries in the Middle East. It is important that the social Web remain as free and accessible as possible because a free social Web is a powerful tool for freedom generally. At the same time, the social Web, like most tools, has darker applications and defamation online is one of those applications.

Of course, that is an oversimplification. A form of expression can be defamatory and be justifiable and permissible if, on its face, it harms its target’s reputation and yet its publication serves a legitimate purpose. When people contact me about defamation online (the term they often use is “slander”), the published material is often not justifiable and is motivated by malice.

The typical legal response to this sort of defamatory material (or any defamatory material, for that matter) is to demand its removal and that the publisher take some form of remedial action to address the harm caused. The problem is that adopting this approach to defamatory statements or material published online can aggravate the situation far more than the person harmed could have anticipated.

Two case studies illustrate this phenomenon well. The first and older case study involves the performer, Barbara Streisand, and her efforts to stop photographs of her coastal home from being published after it was photographed during a coastal survey. Despite her most efforts, photographs of her house were published online, repeatedly. This case study gave the phenomenon its name: the Streisand Effect. A number of subsequent stories validated and reinforced the Streisand Effect including the 2007 Digg-AACS Encryption Key controversy and, more recently, the2011 Ryan Giggs-UK “Superinjunction” controversy. Both of these more recent case studies illustrate the challenge of adopting a classic legal approach to a social Web problem. In the 2007 Digg controversy, Toshiba’s attorney at the time, Michael Avery, summed up this challenge as follows:

If you try to stick up for what you have a legal right to do, and you’re somewhat worse off because of it, that’s an interesting concept.

When it comes to defamation online, particularly on social networks like Facebook, defamatory statements’ harmful impact may only be exacerbated by adopting a traditional legal approach. This isn’t to say that the defamation isn’t unjustifiable, harmful and actionable but the very real possibility that addressing this misconduct like a conventional legal problem could drastically inflame the situation, and the resulting harm, is an important consideration when planning a response. What is required is a more flexible approach having regard to the specific dynamics involved as well as the platform used. There is no single approach which will be appropriate for all cases.

So what can be done? From an organizational perspective, implementing an Online Reputation Management solution may make a lot of sense. Companies may be defamed too and this defamation frequently results in reputational harm. Simply monitoring keywords and phrases is part of the process which should also include a more detailed strategic plan for dealing with negative and positive sentiment as well as legal input throughout the process to anticipate and cater for potential legal issue which may arise. From an individual perspective, responses may include reporting abuse with the platform’s proprietor; laying criminal charges; engaging directly; not taking any active steps for the time being and, when left with little choice, having an appropriately worded demand letter prepared and sent to the culprits.

There are other challenges facing online defamation cases which can be similarly difficult to overcome. One concern is that defamers may be publishing under a pseudonym and are effectively anonymous. This presents a fundamental difficulty because you can only really take action against a known party and if the culprit has used pseudonymous handles and names for his or her profiles, email addresses and other identifiers, suing will be a practical impossibility. Another, very real, concern is the cost of legal action relative to the harm suffered. In the case of individuals, litigation costs are frequently prohibitive; potential damages generally less than they may expect and costs recoveries are cold comfort after a protracted and expensive campaign. Costs are less of an issue for companies which tend to be more able to afford these costs but the challenge here is that taking action may lead to a disproportionate increase in the harm suffered making legal action more of a “principle” based decision which is rarely the ideal motivation for legal action.

A lawyer’s role in these sorts of case is less to rush in, guns blazing, and more to get a handle on the situation and help shape responses while anticipating the worst and preparing as much as is possible for a formal dispute. In between there is usually considerable scope for a multi-faceted approach to defamation and the resulting reputational harm where lawyers still play a role. They’re just not necessarily the cavalry anymore.