Cyber Defamation: Whether the Client has a Case for Slander or Libel in the Age of the Internet

May 5, 2014
By: Francis J. Ciaramella

In a trend that will be unlikely to subside, the world has come to rely more and more upon the Internet and instant access to information.  Even today, many companies are expected to have extensive presences in the digital domain, with websites, social media pages (Facebook, Twitter, Instagram, etc.), apps for smartphones and tablets, and good reviews from online review sites (ex. Yelp).  In fact, it will often raise eyebrows if a business does not have some sort of online presence.  Today, businesses, especially those that operate exclusively online, are heavily reliant and dependent upon the established goodwill of their businesses in order to stay in business and grow.  If this goodwill is damaged, then business will suffer.  This problem is made worse by the fact that the entire world uses the Internet to purchase and sell goods/services.  One cannot simply move to a different part of the Internet and continue to do business without their damaged goodwill following them.  Of particular interest here are the online review sites.

Many individuals mistakenly believe that the Internet, while open, is also anonymous.  To the contrary, in some respects the Internet is less anonymous than it was before its commonplace use.  For example, reviews used to be done largely in newspapers or other printed media, which could have an anonymous author.  But today, a simple Internet Service Provider address trace will usually result in revealing the identity of the writer, whether they want to remain anonymous or not.  On occasion, clients will come and say that their individual or business’s reputation is being ruined by a slew of biased negative reviews.  Almost every single client asks the same question: can I sue someone for these negative reviews?  With the appropriate information and elements met, the answer is yes.
Defamation, generally speaking, requires that the plaintiff show: (1) that the defendant published a false statement about them or their business; (2) to a third party (in this case the Internet); and (3) that the falsity of the statement caused actual injury/damages to the client or their business. Valencia v. Citibank Int’l, 728 So. 2d 330 (Fla. 3d DCA 1999).

In the context of online review sites, recently in the State of New York, a man was threatened with a defamation suit for posting a negative review to Yelp, a popular review site for businesses.  Matthew Brand saw great reviews for Ron Gordon Watch Repair, but was dissatisfied with their service.  He posted a two-star (out of five) review on Yelp alleging that they could not fix his watch when a competitor was able to do it on site. See Sonia Rincon, Man Threatened With Defamation Lawsuit Over Negative Yelp Review, CBS New York (March 21, 2014), The repair shop responded by demanding that he take down the review or face a defamation lawsuit. Id.  B
ased upon the available facts,  it does not appear that the watch repair shop  has a very strong case for defamation because nothing appears to show that the comments made were false or were made with reckless disregard for the truth.  It may have been uncharacteristic of the watch repair shop, which had otherwise great reviews, but truth is a defense to defamation.
Instead, let’s use a different set of circumstances.  Imagine a doctor sets up practice on a corner, spends a lot of time building his client base, and eventually develops a successful practice (let’s also say that he has good online reviews).  Then, a second doctor opens shop across the street.  Soon, the first doctor’s office starts receiving cancellations of appointments, and when the first doctor checks his online reviews, he finds that a majority of the recent reviews are bad, with comments suggesting that the doctor is incompetent, that the service was bad, or that even procedures were done negligently.  The first doctor’s practice and livelihood are falling apart.  To whom do you send a takedown notice or a cease and desist, the anonymous reviewer?  The answer is possibly yes.
As mentioned above, the first doctor may be able to discover the identity of the persons responsible for making the defamatory reviews, by subpoenaing the Internet Service Provider as well as the website in which the defamatory statements were made.  In the doctor example, if the subpoenas showed that the bad reviews all tended to come from the second doctor’s office, the first doctor may have a case for defamation if he can prove the elements of defamation.
Defamation is defamation, and it does not change merely because the medium is different.  Cyber defamation will continue to become an increasing problem in the business realm due to the continuing societal reliance upon the Internet to do business.  So long as you can prove that the reviews are false and made knowingly or with reckless disregard to the truth, and that they hurt your business, you may be able to recover.  The key is using an Internet Service Provider search in order to tie the reviewer to the review.
If you believe that you are unfairly receiving malicious or defamatory reviews/statements about your business, do not assume that because the reviews/statements come from the Internet that they are anonymous.  Protect your business’s reputation, and find out where these reviews are coming from, who are making them, and most importantly, why.

For additional information regarding cyber defamation or if you have any other intellectual property related law questions or concerns, please feel free to contact us at the telephone number above.

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