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.
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.