Defamation in the Age of Disinformation: Lawsuits Are Still the Last Resort

August 24, 2021 By: Amanda Hyland of Taylor English Duma With each year that passes, more and more platforms become available for publishing content. Publishing opportunities for any average Joe in pajamas include LinkedIn, YouTube, Twitter, Instagram, TikTok, Reddit, NextDoor and a seemingly endless variety of websites that allow users to publish reviews of businesses, to expose alleged scammers and cheaters, or to comment on news articles or topics.

Over the past year, many in the legal community have noted that these platforms are perpetuating conspiracy theories, disinformation and libel. Justice Neil Gorsuch recently opined in his dissent in Berisha v. Lawson that the digital age required reconsideration of historical protections for publishers, including the actual malice standard.

Some legal scholars have suggested that Section 230 of the Communications Decency Act, which protects platforms like Google and Facebook from liability, should be revisited. Even Facebook founder Mark Zuckerberg testified to Congress in March that Section 230 should be amended because “the law is doing more harm than good.”

And in a very practical way for many everyday business and people, the problem is very real. Disgruntled ex-employees, ruthless business competitors, high school bullies and ex-lovers all find their way to the internet with seemingly endless opportunities to punish, harass and embarrass on a worldwide stage, with just a few clicks on a keyboard.

And the answer, at least as the law currently stands, is not necessarily to view the problem as a legal issue.

First, libel cases are very hard to win. Surprisingly rare is the case involving a provably false statement of fact, made without privilege and published with the requisite degree of fault, which often is the notoriously challenging fault standard of actual malice. Procedural defenses like anti-SLAPP motions, retraction statutes and jurisdictional motions create additional challenges for a libel plaintiff. And the platforms that host the content are completely insulated from the law under Section 230. Successful defamation cases are exceedingly rare.

Even assuming a client’s particular case is the unicorn that can actually be won, the question of remedies must be considered. What, exactly, does the plaintiff expect the court to do? Many courts have held that permanent injunctions are unconstitutional, so it’s extraordinarily unlikely that the offending publication would be ordered removed. See e360 Insight v. The Spamhaus Project, 500 F.3d 594 (7th Cir.2007) (“equity does not enjoin a libel or slander”). So the most realistic form of relief is money damages. More often than not, the defendant is a disgruntled ex-employee, customer or personal acquaintance—not typically a high net-worth individual or large corporation with assets. If the defendant is the prototypical keyboard warrior that can’t afford to pay a damages claim, then what was the point of winning the first place?

And then there’s the issue of the mechanics of suing and proving the lawsuit. One of the first unintended consequences of the case is often a news story about the lawsuit, bringing a whole new level of attention to a whole new group of people who will be made aware of whatever false and horrible statement was made about the plaintiff. If the general desire is to avoid further dissemination of the false statement, the mere act of filing suit can be counterproductive. And then the plaintiff still must prove by a preponderance of the evidence that the publication was false, which often requires discovery into embarrassing and sensitive facts and documents that the plaintiff would prefer to keep out of court and out of the public eye. If the statement at issue involves allegations of sexual impropriety, financial mismanagement, corrupt behavior or criminal activity, the plaintiff will be exposed to discovery on these topics, which may be humiliating and uncomfortable and which may require disclosure of highly sensitive information.

And of course, lawsuits are expensive and may drag on for years.

So, in sum, filing a defamation lawsuit is expensive, extraordinarily hard to win, may bring an embarrassing story even further public attention, may expose the plaintiff to invasive discovery on deeply personal or proprietary topics and may ultimately offer little in the form of an actual remedy, which would only be awarded after many months or years of litigation.

Until the Supreme Court revisits its First Amendment jurisprudence, or at least as long as Section 230 remains unchanged, defamation victims need practical, cost-effective, out-of-court solutions.

So what else can be done?

Maybe nothing. Research has shown that only 5% of searchers go beyond the first page of search results, and old content is often buried simply by the passage of time. Depending on the circumstances, the publication may not generate enough views to warrant any action at all, particularly if the issue is simply a negative review of a business or product that will ultimately be one review out of hundreds.

Attempt to have the content removed. Consider what motivated the publisher to post the statements in the first instance, and consider what might motivate the individual to remove them. Sometimes offering financial compensation, a donation to a favorite charity or other incentives may work. Bear in mind that such tactics are unlikely to work if they have been preceding by aggressive or threatening letters.

If the author is uncooperative, many platforms have terms of use that prohibit content that is defamatory, harassing, stalking or which violated trademark or copyright laws. Review the terms of use and if the content violates those terms, reach out to the platform and demand that the content be removed. If the automated forms are not generating the desired response, search for a contact within the company’s legal department and take the issue directly to them.

Attempt to have the content delisted on Google. Google is making headlines this year as a result of changing its search algorithm to prevent certain websites from appearing in search results. The delisted websites are those that solicit unverified complaints—often about scammers and cheaters—and then charge the victim for removal.

Also, certain content will be delisted by Google upon request. The information remains online, but very difficult to find. Google will remove search results that direct to websites that include sexually explicit content, that violate copyright or trademark, which contain malware or which may cause identity theft or financial fraud. Google will also remove Google reviews that are offensive, threatening, off-topic or deceptive.

Fight bad content with good content. When real estate executive Robert Willison was the victim of a massive online smear campaign by an angry ex-employee, a local news network ran a story about the smear campaign and how damaging it had been to Mr. Willison. The news story not only ranked high in search results, also but put the negative posts in context. “Being proactive about reputation management is key,” said Megan Paquin, vice president at Poston Communications, a public relations firm. “Promoting your awards, positive business developments and thought leadership all help you take control of the narrative about you and your company online.”

This strategy is highly effective. Good stories from reputable sources put the victim in a more positive light, and ideally discuss the subject matter of the defamatory post in such a way that leaves readers with no doubt regarding its falsity. Positive articles also ultimately push the defamatory story down in search rankings. Retention of a public relations firm is often a key part of this strategy and well worth the investment. A good PR firm will solicit news organizations to generate helpful news coverage, help the victim incorporate the right kind of messaging on social media and respond appropriately to any concerning online feedback.

Amanda Groover Hyland is a partner at Taylor English in Atlanta. She focuses her practice on intellectual property, media and First Amendment counseling and litigation for a variety of corporations and nonprofits.

Reprinted with permission from the August 24, 2021 edition of Daily Report© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257- 3382 or [email protected].