Because of this blog, I get a lot calls from individuals and businesses that have questions about removing derogatory, online defamation and unwanted content from the Internet. Inevitably, during many of these conversations, the topic of litigation often comes up; whether a lawsuit should be filed to remove the posted information and recover damages.
Sometimes filing a lawsuit can be a good idea. For example, if you or your business has been maliciously defamed online on a website like Ripoffreport.com, obtaining a court order to remove the information from search engines can sometimes be a party’s only chance for relief.
However, litigation is not always an appropriate course of action. In fact, filing an ill-advised suit can lead to disastrous consequences, including drawing even more attention to the derogatory content (i.e. the “Streisand Effect”) and the possibility of counterclaims which can lead to an opposing party collecting attorneys fees and punitive damages.
The decision of whether to litigate should not be taken lightly. There are many different factors that must be evaluated before deciding to file an action. The following is a list of some of the most important factors that should be considered when making this decision:
1. Do You Have an Online Defamation Case?
Initially, the most important question that needs to be evaluated is the merits of any potential case. Every case is unique and only an experienced attorney familiar with lawsuits of this nature and the laws of your state (or the state where the lawsuit may be filed) will be able to properly assess the merits of your potential action. There are many different issues that will need to be analyzed, including:
•Whether information is false, disparaging, or creates a false light even if true;
• Whether statements are constitutionally protected speech, like opinion;
• Whether information published is offensive and/or invasive of an individual’s privacy;
• Whether the published content violates copyright or trademark laws;
• Whether an individual’s name or likeness is being used illegally, without consent, and for profit;
• Whether published information was obtained illegally and through unauthorized access to private accounts or databases; and
• Whether claims are still actionable under the applicable statute of limitations.
Although every situation is unique, if there are serious issues or red flags concerning the merits of a potential case, more often than not, filing a lawsuit will not be worth the trouble. Having a strong case can be necessary to subpoena the identity of anonymous authors and overcome counterclaims under Anti-SLAPP statutes (Strategic Lawsuits Against Public Participation).
Even in default action, when a defendant doesn’t show up to defend a case, the merits of a case still must be proven to a judge. If claims are dubious or defenses are obvious, relief will not be granted.
Furthermore, when a case is strong, many of the problems and difficulties inherent in litigation become far less daunting and troublesome. Simply put, less time, energy, and expense will be needed to advance a claim and obtain relief.
The strength of a case is without a doubt the most important factor that must be initially examined.
2. Do You Know Your Enemy?
Even if a case has merit, who the defendant is on the other side of a lawsuit can make all the difference.
That is, if the identity of a defendant is known at all. In many cases, content is authored or posted by individuals who are anonymous and cannot be easily identified. If the author of a website or post is anonymous, litigation becomes more timely and expensive. Steps must be taken to identify and prove the identity of the author/poster. This usually requires filing a “John Doe” lawsuit, (filing a lawsuit against a fictitious individual) and then registering and/or filing the case in out of state jurisdictions to subpoena webmasters and internet service providers for IP addresses and other account information. The process can become very complicated and computer forensic experts can sometimes be needed to assist in a case
Even if the identity of a defendant is known or can be proven with readily available evidence, it is still necessary to evaluate what sort response can be expected from a defendant. Will the person or organization show up to defend the case? Will the defendant be able to afford a lawsuit? How strong of defense will there be? Will a lawsuit cause even more harmful and derogatory information to be posted? Will the lawsuit attract media attention? Will the defendant be collectible if an award of damages is obtained?
All of the following questions must be evaluated before suit is filed.
3. The Wild Cards.
Once a lawsuit is filed, nothing is guaranteed. Litigation is the equivalent of war. Although lawsuits generally run a standard course, there are risks and uncertainties inherent in any kind of lawsuit that can never be removed. These include, among others:
• Unexpected costs due to prolonged discovery, pugnacious opposing counsel, expert witness fees, depositions, court costs, and travel expenses;
• Possible counterclaims or third-party claims asserted by a Defendant;
• Being assigned a Judge with an inherently unfavorable disposition towards your case;
• Change in the status of the law;
• Unfavorable media attention or publicity; and
• The chance that an unfavorable result or outcome is obtained.
Many times, these risks are remote; however, they should always be evaluated and considered.
Cases to remove derogatory content from the Internet present certain unique risks and uncertainties that are not present in normal cases. For example, the risk of counterclaims is especially important to analyze because many states have Anti-SLAPP Statutes, which means that an ill-advised suit can lead to counter lawsuits being filed that seek attorney’s fees and punitive damages against a Plaintiff.
Another risk that is more pronounced is the uncertainty of the law or a chance of a possible change in the status of the law itself. Internet defamation and related removal claims are on the cutting edge (and sometimes the bleeding edge) of technology and the law. Many states and jurisdictions have not even issued formal opinions and precedent regarding standard procedural issues that can arise in these types of cases. It can be impossible to predict how a court will rule on certain issues.
These additional unique risk factors and uncertainties are the reason that it is critical to retain an attorney that has experience bringing lawsuits of this nature.
4. Possible Alternatives to Litigation
Sometimes obtaining a court order is the only way to get derogatory content removed from the Internet. However, in most situations, litigation is not the only option, nor the first option that should be selected. Sometimes disputes can be resolved with cease and desist letters, DMCA take-down notices, strategic marketing, and public relations maneuvers, or creation of positive content to suppress the derogatory information off of the first page of search results. All possible alternatives should be explored and discussed with your attorney.
The decision to file a lawsuit to remove derogatory content from the Internet is complex. There are many factors to consider and weigh. If you or your business is being victimized by damaging material on the Internet and have questions regarding taking legal action, do hesitate to call the experienced Internet attorneys at the law firm of Meyers Roman Friedberg & Lewis, LPA to discuss your matter further. Fill out this form, or contact Attorney Aaron Minc at (216) 373-7706 or Aminc@meyersroman.com.