New Jersey Law Journal      Volume 195, No. 3, Index 145  January 19, 2009

CURBING INTERNET DEFAMATION  -- ADVANTAGEOUS STRATEGIES FOR TACKLING THE PROBLEM

By Jonathan Bick  Bick is counsel at WolfBlock in Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of '101 Things You Need To Know About Internet Law' (Random House 2000).

An identifiable Internet speaker who sends an unlawful e-mail or posts an unlawful Internet message is subject to traditional litigation tactics. However, countless Internet speakers are not effortlessly identifiable. Hence, novel litigation, technical and administrative law tactics are advantageous for successfully curbing Internet defamation.

The three most common novel litigation tactics include initiating actions against: the Internet speaker prior to specifically identifying that person (normally a John Doe suit); the Internet speaker's Internet Service Provider; and the Internet speaker's e-mail and/or Web site provider.

The primary objective of each of these tactics is to identify the Internet speaker. Once that is goal is reached, traditional litigation tactics may be used. The secondary objective of initiating action against the Internet speaker's Internet Service Provider, and the Internet speaker's e-mail and/or Web site provider, is to force theses parties to remove the Internet speaker's content from the Internet.

Typically, lawsuits against either an identifiable or an unidentifiable Internet speaker allege interference with business relationships, defamation, and/or intentional infliction of emotional distress is employed. Litigations against other parties such as the Internet speaker's Internet Service Provider, and the Internet speaker's e-mail and/or Web site provider, usually involve similar allegations because each repetition of a defamatory remark is a new injury.

Since the Internet is based upon a set of mutually agreed upon technical protocols, technical tactics, which are generally less expensive, may be more cost-effective than legal tactics for curbing Internet defamation. Technical tactics include: publicizing the Internet speaker's bad acts via Internet postings; self-help action against the Internet speaker's Internet service provider, e-mail provider or Web site provider; and using services to obscure the Internet speaker's content.

Such technical tactics are generally considered legal self-help remedies, and may entail legal risk, including litigation. However, the average unidentifiable Internet speaker normally lacks the motivation. The lack of motivation is based in part on the desire to maintain an unidentifiable status. The lack of motivation may also be economic. Commonly, the cost of initiating a law suit is normally more than the harm caused by the self-help and the risk of a counter-suit is substantial, thus initiating litigation in this instance is likely to cost the plaintiff tens of thousands of dollars even if the plaintiff prevails.

Administrative law tactics have also successfully curbed Internet defamation because many federal and state agencies have claimed jurisdiction over the Internet and are interested in demonstrating their power. Administrative law tactics include: using reporting an Internet speaker's Internet service provider, e-mail provider and/or a Web site provider to the Federal Trade Commission for the deceptive trade practice of publishing one thing on their terms of use agreement and doing another with respect to unlawful Internet speech; using the take-down provisions of the Digital Millennium Copyright Act; using state consumer affairs departments to take action against Internet service provider, e-mail provider and/or a Web site provider for the unlawful acts; and reporting an Internet speaker's unlawful speech to the Securities and Exchange Commission.

When using litigation tactics, in the typical case of an unidentified Internet speaker, plaintiffs sue an unknown 'John Doe' defendant for defamation and then subpoena John Doe's Internet service provider and/or e-mail provider to uncover the identity of the Internet speaker. Thus, by suing defendants called John Does, an aggrieved entity can convince a judge to issue a subpoena forcing an Internet service provider to turn over the e-mail addresses and identities of the message posters. Also being uncovered may in and of itself be enough to stop the alleged defamer from posting further messages.

Due to the high cost of litigation and the low income afforded by providing e-mail services, Internet service providers and e-mail service providers rarely resist a court's request to identify the Internet speaker or an aggrieved party's request when litigation is imminent. Additionally, most terms of use agreements for Internet service providers and e-mail service providers specifically allow the identification of an Internet speaker upon a court's request.

Unlike traditional defamation suits, action curbing unlawful speech as a rule is not about recovering money damages, for the typical John Doe neither has deep pockets nor libel insurance from which to satisfy a defamation judgment. Rather such litigation is calculated to silence John Doe and others like him. Traditional First Amendment law does not prohibit silencing knowingly or recklessly false statements of fact.

THE PUBLICITY TACTIC

As previously suggested, technical tactics including the publicizing the Internet speaker's bad acts via Internet postings has been useful for curbing Internet defamation. Such publicity is usually accompanied with the filing of a defamation action.

Such a filing is brought as merely one tool in a concerted public relations campaign. These filings are normally an adjunct to press releases announcing their decision to sue those who have spoken ill of them on the Internet. In particular, such filings tend to offset the potentially negative effects of defamatory messages by offering an alternative version of events and thus stop adverse pressure on share prices.

In short, announcing that a firm is suing John Doe, as it turns out, is good for business. Such publicity also tends to silence John Doe, which may be the ultimate objective.

THE SELF-HELP TACTIC

Self help action against the Internet speaker's Internet service provider, e-mail provider and/or Web site provider is both lawful and generally more cost-effective than litigation. In the past, courts have not normally favored the use of self-help methods to remedy a contract breach because unhindered self-help has great potential to produce unfair results. However, courts would rather enforce remedies, but to avoid unfair results, they are becoming more amenable to self-help remedies. As a result, those who exercise self-help remedies and end up in litigation are more likely to find favorable court treatment.

Another advantage of a self-help contract remedy is the immediacy and extent of the action. A party can act quickly and judiciously in response to problems. In doing so, it can avoid seeking judicial remedy or other third-party intervention, both of which typically involve delay.

One such self-help remedy is to impersonate the unlawful speaker on a third party's Internet site. Another is to impersonate a third party on the unlawful speaker's Internet site. A third is to use spoofing technology to send bogus e-mail on the unlawful speaker's behalf. A fourth is to use viral software to disable some or all of an unlawful speaker's Internet site or the site of an Internet service provider or mailer supporting the distribution the unlawful speech.

OBSCURING THE CONTENT

Yet another technological tactic is to obscure the Internet speaker's unlawful content. Most Internet content is found through the use of Internet search engine software. Such Internet search engines generally display results in an order based upon prior requests. Robot Internet software is available to find speech which is egregious to a particular party and send request for Internet information in such a way as to move the egregious speech site ranking so far down as to not be found by most Internet users. Firms which offer services to obscure the Internet speaker's content also offer to host Internet sites which confuse search engine software and result in fewer readers for the Internet speaker's unlawful speech.

REPORTING THE DEFAMATION

Among the most useful administrative law tactics for curbing Internet defamation is reporting an Internet speaker's Internet service provider, e-mail provider and/or a Web site provider to the Federal Trade Commission for the deceptive trade practice of publishing one thing on their terms of use agreement and doing another with respect to unlawful Internet speech.

An Internet speaker may use content owned by another. In that case, the takedown provisions of the Digital Millennium Copyright Act may be employed. In particular, if an Internet service provider has registered for indemnification afforded by Digital Millennium Copyright Act as tens of thousands have, then administrative action is available. When a copyright owner discovers allegedly infringing material on a provider's service, it has the right to send a notice to the provider demanding the removal of that material. If the notice is proper, the provider must promptly comply or face administrative law liability.

The essence of a deceptive trade practice is simply saying one thing and doing another. The enforcement of the prohibition of such practices is generally the jurisdiction of state consumer affairs departments. Thus, another administrative tactics which has been successful for curbing defamatory speech is to request that a state consumer affairs department take action against the Internet service provider, e-mail provider and/or a Web site provider for have a Web site or an e-mail service whose terms of use include barring unlawful acts and who permit such acts due to their facilitation of unlawful Internet speech.