Curbing Internet Defamation

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 ISP, and the Internet speaker's e-mail and/or Web site provider, is to force these parties to remove the Internet speaker's content from the Internet.

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

Technical Tactics

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 IPS, e-mail or Web site provider; and using services to obscure the Internet speaker's content.

Publicizing the Internet speaker's bad acts via Internet postings has been useful in curbing Internet defamation. Such publicity is usually accompanied with the filing of a defamation action.

Filing a defamation action is merely one tool in a concerted public-relations campaign. These filings are normally an adjunct to press releases announcing the defamed party's decision to sue those who have spoken ill of it 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 and others like him, which may be the ultimate objective.

Self-help action against the Internet speaker's ISP, 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, since courts would rather enforce remedies than promote litigation, they are becoming more amenable to self-help remedies, while careful to avoid unfair results. 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 and cost.

A few examples of self-help remedies are:

• Impersonate the unlawful speaker on a third party's Internet site;
• Impersonate a third party on the unlawful speaker's Internet site;
• Use spoofing technology to send bogus e-mail on the unlawful speaker's behalf; and
• Use viral software to disable some or all of an unlawful speaker's Internet site or the site of an Internet service provider or e-mailer supporting the distribution the unlawful speech.

One way to obscure the Internet speaker's unlawful content is to limit the amount of Web users that view it. 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 software is available to find speech that is egregious to a particular party and send a request for 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 that offer services to obscure the Internet speaker's content also offer to host Internet sites that confuse search engine software and result in fewer readers of the Internet speaker's unlawful speech.

Technical tactics are generally considered legal self-help remedies and may entail legal risk, including litigation. Commonly, the cost of initiating a lawsuit is normally more than the harm caused by the defamatory statements and the risk of a counter-suit is substantial, thus initiating litigation in this instance is likely to cost tens of thousands of dollars, even if the plaintiff prevails. However, the average unidentifiable Internet speaker normally lacks the motivation to initiate litigation;
based on the desire to maintain an unidentifiable status and economics.

Administrative Law Tactics

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. One of the most effective administrative law tactic is reporting an Internet speaker's ISP, e-mail provider and/or Web site provider to the Federal trade Commission (“FTC”) for the deceptive trade practice of publishing one thing on the terms-of-use agreement and doing another with respect to unlawful Internet speech.

If an Internet speaker uses content owned by another, the take-down provisions of the Digital Millennium Copyright Act (“DMCA”) may be employed. In particular, if an Internet service provider has registered for indemnification afforded by the DMCA ' 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 tactic that has been successful for curbing defamatory speech is to request that a state consumer affairs department take action against the ISP, e-mail and/or Web site provider for having a Web site or an e-mail service whose terms-of-use include barring unlawful acts and who permit such acts due to its facilitation of unlawful Internet speech.

Litigation Tactics

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 ISP and/or e-mail provider to uncover the identity of the Internet speaker. 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, ISPs 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 ISPs 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 has neither 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.

In addition, a defamed party can report an Internet speaker's unlawful speech to the Securities and Exchange Commission (“SEC”).

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 technical, administrative law and litigation tactics are advantageous for successfully curbing Internet defamation.

Identifying the Speaker

The three most common novel litigation tactics include initiating actions against: 1) the Internet speaker prior to specifically identifying that person (normally a “John Doe” suit); 2) the Internet speaker's Internet Service Provider (“ISP”); and 3) 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 ISP, and the Internet speaker's e-mail and/or Web site provider, is to force these parties to remove the Internet speaker's content from the Internet.

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

Technical Tactics

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 IPS, e-mail or Web site provider; and using services to obscure the Internet speaker's content.

Publicizing the Internet speaker's bad acts via Internet postings has been useful in curbing Internet defamation. Such publicity is usually accompanied with the filing of a defamation action.

Filing a defamation action is merely one tool in a concerted public-relations campaign. These filings are normally an adjunct to press releases announcing the defamed party's decision to sue those who have spoken ill of it 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 and others like him, which may be the ultimate objective.

Self-help action against the Internet speaker's ISP, 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, since courts would rather enforce remedies than promote litigation, they are becoming more amenable to self-help remedies, while careful to avoid unfair results. 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 and cost.

A few examples of self-help remedies are:

• Impersonate the unlawful speaker on a third party's Internet site;
• Impersonate a third party on the unlawful speaker's Internet site;
• Use spoofing technology to send bogus e-mail on the unlawful speaker's behalf; and
• Use viral software to disable some or all of an unlawful speaker's Internet site or the site of an Internet service provider or e-mailer supporting the distribution the unlawful speech.

One way to obscure the Internet speaker's unlawful content is to limit the amount of Web users that view it. 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 software is available to find speech that is egregious to a particular party and send a request for 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 that offer services to obscure the Internet speaker's content also offer to host Internet sites that confuse search engine software and result in fewer readers of the Internet speaker's unlawful speech.

Technical tactics are generally considered legal self-help remedies and may entail legal risk, including litigation. Commonly, the cost of initiating a lawsuit is normally more than the harm caused by the defamatory statements and the risk of a counter-suit is substantial, thus initiating litigation in this instance is likely to cost tens of thousands of dollars, even if the plaintiff prevails. However, the average unidentifiable Internet speaker normally lacks the motivation to initiate litigation;
based on the desire to maintain an unidentifiable status and economics.

Administrative Law Tactics

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. One of the most effective administrative law tactic is reporting an Internet speaker's ISP, e-mail provider and/or Web site provider to the Federal trade Commission (“FTC”) for the deceptive trade practice of publishing one thing on the terms-of-use agreement and doing another with respect to unlawful Internet speech.

If an Internet speaker uses content owned by another, the take-down provisions of the Digital Millennium Copyright Act (“DMCA”) may be employed. In particular, if an Internet service provider has registered for indemnification afforded by the DMCA ' 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 tactic that has been successful for curbing defamatory speech is to request that a state consumer affairs department take action against the ISP, e-mail and/or Web site provider for having a Web site or an e-mail service whose terms-of-use include barring unlawful acts and who permit such acts due to its facilitation of unlawful Internet speech.

Litigation Tactics

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 ISP and/or e-mail provider to uncover the identity of the Internet speaker. 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, ISPs 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 ISPs 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 has neither 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.

In addition, a defamed party can report an Internet speaker's unlawful speech to the Securities and Exchange Commission (“SEC”).