BY LETA GORMAN
Cyber defamation and online reputation attacks can quickly and easily cause devastating and widespread damage to any business. Attacks from competitors, disgruntled employees, unhappy customers, and extortionists can appear in a variety of forms (tweets, blogs, gripe sites, reviews, false revisions to Wikipedia, social media, etc.). Although any business should expect some legitimate online criticism, false and defamatory statements and attacks do not have to be tolerated. So, how can you and your lawyer respond?
Do Nothing. The first option, of course, is to do nothing. If the online statement appears insignificant, consider letting the statement run a short and quiet course by ignoring it. Drawing attention to an online statement that may not be taken seriously or is relatively benign may only lead to further attention and negative online publicity.
Respond. You can respond online. If the online statement is legitimate criticism, think about publically responding and acknowledging your efforts to correct any problems. Alternatively, you can rebut false or defamatory statements with your own posts. Depending on the nature of the post and the potential damage that could be caused by the false statements, consideration should be given to consulting with online reputation specialists to develop an appropriate public rebuttal or response. You do not want any online response to add fuel to the fire.
Contact the Poster. Send a friendly but firm e-mail or letter to the author asking that they immediately correct, modify, or remove the statement. Perhaps the author didn’t realize the statement was false. The author may be more inclined to cooperate if they hear directly from the company as opposed to the company’s attorney. The drawback here is that the author may not be inclined to remove or correct the statement without the threat of legal action.
Send a Cease and Desist Letter. Have your attorney send a cease and desist letter, demanding that the post be immediately removed, corrected, or modified or legal action against the author will commence. You should move quickly to mitigate as much damage as possible from the false statement. Correspondence with the author could end up online so the letter should be carefully drafted.
File a Lawsuit. An attorney’s help is essential before you decide whether or not to file a lawsuit seeking damages for defamation. If the author is unknown or anonymous, name the poster as John or Jane Doe in the lawsuit. Retain the services of an internet or cyber investigator who can try to determine the internet protocol (IP) address of unknown authors. This information can then be used to issue subpoenas for subscriber information to internet service providers (ISPs). A subpoena for the computer of the suspected author may also be an option so a forensic exam may be performed on it.
Lawsuits are public, so be aware that the filing of your lawsuit will likely draw the attention of the media, which could cause more damage to your company. Make sure the company’s attorney analyzes whether the case can survive a motion to dismiss under Oregon’s anti-SLAPP (Strategic Lawsuit Against Public Participation) laws. These laws protect freedom of speech and prevent lawsuits against those who make statements on public issues. If a lawsuit is filed and then dismissed, the general public may not understand why and assume the defamatory statements were true.
Be prepared to act quickly if your company is the subject of online defamation. Contact an attorney to discuss legal strategies available to your company and consider the use of online reputation experts to develop strategies to mitigate damage to your company. A thoughtful and strategic response is the best way to respond to cyber defamation.