By Steven Krieger

As a consumer, you likely have many interactions with businesses each and every day.  Most of those interactions are innocuous and you never give them a second thought. However, on occasion, you may have a really wonderful experience with a particular business or a really terrible experience with another business.
 
If you’re active on social media (and even if you’re not), you may decide to leave a review for the business on a website like Yelp, Angie’s List, Google+, Bing, or Yahoo, to inform your fellow consumers about the details of your experience.
 
In fact, many businesses encourage consumers to leave positive reviews.  If a positive review was written, everyone is happy.  

But, what happens when your experience is negative?  Typically, the consumer attempts to resolve the dispute with the business and the business has an opportunity to do “do right” by the consumer.  Unfortunately, sometimes the dispute cannot or will not be resolved and the consumer goes online and leaves a negative review about the business and the experience.
 
Local business (big or small) take these negative reviews very seriously.  In fact, if the business is able to identify the consumer who left the review, the business may file a complaint in court and will likely claim that the review is defamatory. 
 
Defamation is the general term that describes a printed (libel) or spoken (slander) statement that hurts ones character or reputation.  A negative review posted online will likely harm a business and could be defamatory -- libel, specifically.  However, if the statements are truthful or entirely subjective, the consumer has a valid defense against such a defamation claim.
 
But, even if the consumer has a valid defense, the consumer still must defend the defamation claim, which will cost the consumer time and money.  In the 1990’s, business began to sue or threatened to sue consumers primarily for the purpose of intimidating consumers into removing the negative reviews. The Public Participation Project explains it best: “[t]hese types of lawsuits are known as Strategic Lawsuits Against Public Participation (SLAPPs).  SLAPPs are used to silence and harass.  [Businesses filing these complaints in court] don’t go to court to seek justice, but instead, to intimidate those who disagree with them or their activities” and who speak out.  In 1992, Delaware became the first state to pass an Anti-SLAPP Act.  Currently, there are almost thirty states that have passed some type of Anti-SLAPP Act and the Public Participation Project is trying to pass federal Anti-SLAPP legislation. The Anti-SLAPP acts were passed to help consumers defend against harassing lawsuits filed to stifle First Amendment freedom of speech rights.
 
D.C. passed an Anti-SLAPP act that became effective on March 31, 2011 and was codified as D.C. Code § 16-5501 to 16-5505.  The D.C. Anti-SLAPP explains that these SLAPP suits should be dismissed if (1) “the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest,” and (2) the business cannot “demonstrate[] that the claim is likely to succeed on the merits.” See D.C. Code § 16-5502(b).
 
In other words, if the consumer who posted the negative review on Yelp or anywhere else online is able to demonstrate that the review (or any other type of statement -- online or offline) was made to further some type of advocacy on an issue of public interest, then the business must demonstrate that the business is likely to win the case if the court allows the case to proceed. Otherwise, the lawsuit filed by the business must be dismissed and the consumer’s negative review may remain online.
 
In addition to allowing the consumer to immediately file a motion to dismiss and avoid the hassle of time-consuming and expensive litigation, the D.C. Anti-SLAPP Act of 2010 allows the consumer to recover attorneys’ fees if the consumer prevails with the Anti-SLAPP defense in whole or in part.  Specifically, §16-5504(a) states: “[t]he court may award a moving party who prevails, in whole or in part, on a motion brought under § 16-5502 or § 16-5503 the costs of litigation, including reasonable attorney fees.”
 
The attorneys’ fees provision is critical because without the ability for the consumer to recover these fees, the consumer may not be able to afford an attorney to file the special motion to dismiss and the consumer may decide to simply remove the negative review instead of defending the lawsuit, which is exactly what the business was hoping for all along.
 
If you’ve had a negative experience with a business and posted a negative review for the business online (Yelp, Angie’s List, Google+, Bing, Yahoo, or anywhere else – online or offline), which resulted in the business filing a lawsuit against you in D.C., the D.C. Anti-SLAPP Act was designed to help you defend yourself against this type of lawsuit from a business that likely has access to more resources, including money, than you.
 
If you’re defending yourself against a SLAPP suit, please feel free to contact my office for a consultation.  

By: Audrey Henderson

If you read my first blog post on Why is Defamatory or Libelous Content Allowed Online?, and have determined that the content posted by your wife, husband, boyfriend, girlfriend, etc. is defamatory, the next step is trying to remove the content. 

If there’s only one copy of the defamatory content, destroying it may not be too difficult, but given new technology and the digital world, most content makes it online and then removal becomes exponentially more challenging. 

There are three potential avenues to remove defamatory content posted online: the original publisher, the website, and the website hosting service provider.  Websites and hosting service providers are generally protected by the Communications Decency Act of 1996.  Specifically, “no 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.”  47 U.S.C. § 230(c)(1).  The reason this Act was created was because Congress realized that the internet was being offered as a new forum for free speech, the exchange of ideas, and political debates.  Id. § 230(a)(3). 

Furthermore, websites that provide a forum for others to potentially post defamatory statements are often staunch defenders of the First Amendment and are not likely to take down the offending content.  For instance, if a person asks a website to remove false comments about them, how will the website know what’s true?  Which party is lying? Perhaps the most notable of these sites, thedirty.com, explains that “because [they] have no way of knowing which side is telling the truth and which side is lying” they will not take down the content. 

However, just because a website owner cannot be liable, does not mean that the party who actually posted the defamatory statements on the website can escape liability.  Zeron v. America Online, Inc., 129 F. 3d 327, 330 (4th Cir. 1997).  As discussed in my last post, Why is Defamatory or Libelous Content Allowed Online?, liability depends on your ability to meet the defamation standard.   

Defamation Standard

For a private figure plaintiff, the standard that applies to most of us, suing for statements made on private matters, then the plaintiff need only prove, by a preponderance of the evidence that the defendant acted negligently in his/her defamatory statement(s) for both punitive and compensatory damages.  Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).  “In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575 (2005).  The plaintiff may recover if he proves that “the publication was false, and that the defendant knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.”  Gazette, 229 Va. 1, 15 (1985).

So, How Am I Supposed to Get the Defamatory Content Removed?

There are at least four options to explore when attempting to get the offensive content removed.  The first is to take legal action and file suit against the individual who posted the content online.  Based on the standard discussed above, a court will either grant or deny your claim.  If you are granted relief, you can give your court order as proof to the website provider and they may remove the defamatory content. 

A second option is to explore the website’s Terms of Service, all social media sites like Facebook, Instagram, Twitter, Tumblr, etc. and some of the cheater websites like Liars Cheaters R Us, Cheater Report, The Dirty, Online Dating Scams 101, or the negative review sites like Bad Scalpel, and Bad Business R Us, etc. have Terms of Service.  It could be helpful to review the Terms of Service for each site and see if the content violates any of the terms.  If so, the website likely has a system in place for you to report violations of their terms of service. 

A third alternative is to use an “arbitration” service.  Some of the sites that serve as a platform for defamatory content have agreements with an independent arbitrator service.  When arbitration is used, the arbitrator will investigate the alleged defamatory statements posted by the original publisher.  If the publisher provides sufficient proof, then it is likely that the post will not be removed, but if the content is baseless, it may be removed.  However, not every site that may contain defamatory content has agreed to work with an arbitration service.  For the “cheater websites” like Liars Cheaters R Us, Cheater Report, The Dirty, Online Dating Scams 101, or Dating Psychos or the negative review sites like Bad Scalpel, and Bad Business R Us, check and see if they have a specific agreement with InternetReputationControl.com or a similar company.  This company, for a fee, will pay for an arbitration service and will additionally represent you during the removal process.  Just like the arbitration process, the arbitrator will investigate the claim and come to a determination of whether the statements made are true. InternetReputationControl.com then recommends to the website provider whether the content should be removed from the website.  While the websites who have agreements with Reputation Control have said they will follow the recommendations made, Reputation Control states that they cannot always guarantee success.  Finally, some websites maintain their own internal removal options like accepting payment in exchange for removal of the offending content.  Other sites may remove content if you give them proof that what was posted is false.  However, a handful of these websites do not provide any removal options and retain the right to keep or remove the content regardless of proof. 

A fourth way to remove content from a website is to explain to the website that the content falls into a protected category or that some exception or exclusion applies under the Communications Decency Act of 1996 and thus they must remove the content.  This may be especially useful for removing content from social media sites like Facebook, Twitter, Instagram, and cheater websites.  Below are several exceptions from the Act of 1996 that may assist your removal efforts. 

(1) No effect on Criminal Laws – As mentioned in my first defamation blog, there are certain areas of speech that are not protected by the First Amendment.  Website owners must still abide by federal and state laws.  Posts in regards to unprotected obscenity and child pornography will still be illegal.  Miller v. California, 413 U.S. 15 (1973) (unprotected obscenity); New York v. Ferber, 458 U.S. 747 (1982) (child pornography).

(2) Intellectual Property Claims – Under the Digital Millennium Copyright Act of 1998, if you have copyright ownership of certain pictures or phrases, you can send a violation notice to a website owner to remove the content.

(3) State law Violations – The Communications Decency Act cannot prevent State laws or common-law doctrine that require website providers to protect the interest of third parties.

(4) Communications Privacy Laws – Depending on the type of communication, one can argue that under the Electronic Communications Privacy Act provides that any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic mechanical, or other device to intercept any oral communication” faces civil liability.  18 U.S.C. § 2511(1).

If none of the above applies, you have two more avenues depending on your circumstances.  First, if the website provider edits content that alters its meaning into a defamatory statement, then the website provider may be held liable for defamation.  Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1263-64 (N.D. Cal. 2006).  Second, some jurisdictions allow the plaintiff to recover based on promissory estoppel.  In defamation situations where the website provider promised to take down defamatory content and the plaintiff relied on that promise, but the website provider never took the content down, the plaintiff can then argue promissory estoppel.  Barnes v. Yahoo!, Inc., 570 F. 3d 1096, 1107 (9th Cir. 2009).

While this information may seem daunting, given that website owners are generally not liable for what is published, there is still hope that you’ll be able to remove the defamatory statements from the internet – it just may take more time and effort than you expected.

By: Audrey Henderson

Introduction

People make comments every day, but why are some comments allowed and other comments considered defamatory?  Doesn’t the First Amendment protect all the comments?  The Virginia Supreme court has defined defamation as words or content that create a substantial danger to an individual’s reputation or good standing.  Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).  Additionally, words that contain and accusation or “an imputation necessarily harmful to reputation” may also be considered defamation.  Id. at 23.  This includes both slander (verbal) and libel (written).  To determine if the content is defamatory, you have to evaluate what was said and who was the subject matter.   

What Was Said and is it Protected by the First Amendment Freedom of Speech? 

Generally, speech is protected by the First Amendment.  When the Constitution was created, the founding fathers wanted to protect against the British sedition and licensing restrictions of the press, where individuals were not allowed to criticize the government at all. Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 4th ed. New York: Wolters Kluwer Law & Business, 2011. 950-969.  The Constitution was drafted to promote four fundamental ideas: self-governance, truth, societal tolerance, and individual autonomy/self-expression.  Massey, Calvin R. American Constitutional Law: Powers and Liberties. 4th ed. New York: Wolters Kluwer Law & Business/Aspen, 2013. 849-853.  The Supreme Court explained that the idea of free speech is to create a free marketplace for the exchange of ideas.  Free speech encourages public debate and ideas in the hope that the truth will eventually rise to the top.  New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964). 

While the First Amendment protections are critical to our American society, they also make it very difficult to force people to remove libelous content unless if falls into one of the unprotected categories created by the Supreme Court.  These unprotected categories include incitement of immediate crimes, true threats, fighting words, obscenity, and child pornography.  See Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement of immediate crime); Virginia v. Black, 538 U.S. 343 (2003) (true threats); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words); Miller v. California, 413 U.S. 15 (1973) (unprotected obscenity); New York v. Ferber, 458 U.S. 747 (1982) (child pornography).  Additionally, other categories of speech may receive protection under the First Amendment depending on the situation.  These include commercial speech and torts based on speech such as defamation and intentional infliction of emotional distress.  See Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (commercial advertising speech); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (defamation of public figures); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (defamation of private figures); Hustler v. Falwell, 485 U.S. 46 (1988) (intentional infliction of emotional distress of public figures); Snyder v. Phelps, 562 U.S. 443 (2011) (intentional infliction of emotional distress of private figures). 

Therefore, an angry husband, wife, girlfriend, boyfriend, or anyone else can post mean-spirited content online – especially, if it’s true (more on this below).  The reason may not be fair, but the First Amendment allows for the freedom of expression through speech, so generally, even hate speech, offensive speech, and opinions will be protected under the First Amendment.  See Virginia v. Black, 538 U.S. 343 (2003) (hate Speech); Cohen v. California, 403 U.S. 15 (1971) (offensive speech).

Who was the Communication About -- Public Individual vs. Private Individual?

A public figure is a person who plays an influential role in society and has ready access to the mass media.  They are usually people who voluntarily thrust themselves into the light of public questioning, and by reason of their fame, shape events in areas of concern to society at large.  See Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967).  Examples include politicians, celebrities, and public officials.  If a person does not fit into the category of a public figure, then they are considered a private figure.  In other words, most of us fall into the private figure category.

How Do I Know if the Posting is Defamatory or Libelous? 

A statement is defamatory if it tends to harm the reputation of another in a way that lowers his/her good standing within the community, and thus deterring others from associating with that person.  Bell v. Nat’l Republican Cong. Comm., 187 F. Supp. 2d 605, 615 (S.D. W. Va. 2002).  Statements that are merely offensive unpleasant are not defamatory.  Chaves v. Johnson, 230 Va. 112, 119 (1985).  It will be up to the Court, not the jury, to determine whether an alleged defamatory statement is a mere opinion or one of fact.  Id.  Under Virginia common law, a private figure filing a claim of action for defamation must first show the defendant published a false factual statement of or concerning plaintiff or the plaintiff’s reputation.  Gazette, Inc. v. Harris, 229 Va. 1, 37 (1985).  Furthermore, claims of action for private individuals to recover only compensatory damages must prove, by a preponderance of the evidence “that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.”  Id. at 15.

In other words, for a private figure plaintiff (the standard that likely applies to the majority of us), suing for statements made on private matters, then the plaintiff need only prove, by a preponderance of the evidence that the defendant acted negligently in his/her defamatory statement(s) for both punitive and compensatory damages.  Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985).  “In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575 (2005).  The plaintiff may recover if he proves that “the publication was false, and that the defendant knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.”  Gazette, 229 Va. 1, 15 (1985).

For a public figure (celebrity, politician, etc.), the statements in question must meet the “actual malice” standard described in Times v. Sullivan.  To be awarded compensatory and/or punitive damages based on a defamation claim, the public figure plaintiff must prove by clear and convincing evidence that the defendant made knowingly false statements or had a reckless disregard for the truth.  If proven, the defendant will be liable for defamatory speech.  It does not matter if the defamatory statements is a matter of public concern or private concern.  

For a private figure plaintiff who is suing for statements made on public matters, the previously discussed standard of “actual malice,” but only for punitive damages.  The plaintiff must prove, by clear and convincing evidence, that the defendant made knowingly false statements or had a reckless disregard for the truth.  But, if the private figure plaintiff is only seeking compensatory damages, there is a lower burden for the plaintiff to prove.  The plaintiff must prove, by a preponderance of the evidence, that the defendant was merely negligent in failing to discover the misstatements. 

If you determine that the content is defamatory, stay tuned for my next post with tips to help you remove the defamatory content from the web.