Curbing Internet Defamation

The “e” world at times seems lawless still, but the truth is that the long arm of the law stretches into the ether to right wrongs and police against wrongdoings before they're committed.

Take speech, for instance ' an activity that a bit more than a decade ago seemed wide open and unruled on the Internet. The truth is that an identifiable Internet speaker who sends an unlawful e-mail or who posts an unlawful Internet message is subject to traditional litigation tactics ' a fact and strategy touch point that all e-commerce counsel are well advised to keep in mind, and of which to remind their clients on a regular basis.

However, countless Internet speakers are not effortlessly identifiable, and hence, novel litigation, technical and administrative-law tactics are advantageous for successfully curbing Internet defamation.

Three Novel Attack Strategies

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 provider or Web site provider, or both.

The primary objective of each of these tactics is to identify the Internet speaker. Once that 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 or Web site provider, or both, is to force these parties to remove the speaker's content from the Internet.

Typically, in lawsuits against either an identifiable or an unidentifiable Internet speaker, allegations that interference with business relationships, defamation or intentional infliction of emotional distress ' or combinations of these ' occurred is employed. Litigation against other parties, such as the Internet speaker's ISP, and the Internet speaker's e-mail or Web site provider, or both, usually involves similar allegations, because each repetition of a defamatory remark is a new injury.

Non-Litigation Strategies

Because the Internet is based on a set of mutually agreed-on technical protocols, counsel should keep in mind that 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 to show their untruthfulness or unreasonableness, and perhaps to provide countercontent refuting the offending posting or postings;
• Self-help action against the Internet speaker's ISP, 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 in response, but the average unidentifiable Internet speaker normally lacks the motivation, with this lack of motivation based in part on the person's desire to remain anonymous, and unidentifiable. The lack of motivation may also be economic. Commonly, the cost of initiating a lawsuit is more than the cost of self-help solutions, and the risk of a countersuit is substantial, and so, 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:

• Reporting an Internet speaker's ISP, e-mail provider or Web site provider, or all, to the Federal Trade Commission (“FTC”) for the deceptive trade practice of the provider publishing one thing in its terms-of-use agreement and doing another with respect to unlawful Internet speech;
• Using the take-down provisions of the Digital Millennium Copyright Act (“DMCA”);
• Using state consumer-affairs departments to take action against an ISP, e-mail provider and/or Web site provider for the unlawful acts; and
• Reporting an Internet speaker's unlawful speech to the Securities and Exchange Commission (“SEC”), which may act on speech that is material misinformation about firms under the agency's control.

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. Thus, by suing defendants called John Doe, 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 itself be enough to stop the alleged defamer from posting more 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 with 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 supposed fact.

The Publicity Tactic

As previously suggested, technical tactics, including publicizing the Internet speaker's bad acts via Internet postings, have been useful for curbing Internet defamation. Such publicity is usually, however, accompanied by 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 a decision to sue those who have spoken ill of the plaintiffs 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. These alternatives may be particularly attractive to e-commerce firms, because online posting offer “proximity” to these firms and their clients and market base ' on the Internet, where it's reasonable to assume the firms' customers are likely to see the defamatory content.

The Self-Help Tactic

Self-help action against the Internet speaker's ISP, e-mail provider and/or Web site provider is 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. But courts would rather enforce remedies, and, 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.

Following are some self-help strategies, all of which, under proper conditions, have been judged to be lawfully implemented.

• Impersonate the unlawful speaker on a third party's Internet site and retract the defamatory content or post content favorable to your company or yourself, and that refutes the defamatory content.
• Impersonate a third party on the unlawful speaker's Internet site and engage in similar tactics described in the first point above.
• Use spoofing technology to send bogus e-mail on the unlawful speaker's behalf.
• Use viral software to disable some or all of an unlawful speaker's
  Internet site, or the site of an ISP or mailer supporting the distribution of 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 on prior requests.

Robot Internet software is available to find speech that is egregious to a particular party and to send requests for Internet information in such a way as to move the egregious speech site returns so far down on the hit rankings that most Internet users won't find the offending speech.

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 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 ISP, e-mail provider and/or a Web site provider to the FTC for the deceptive trade practice of publishing one thing in the provider's terms-of-use agreement, and doing another thing with respect to unlawful Internet speech.

An Internet speaker may also use content owned by another. In that case, the take-down provisions of the DMCA may be employed. In particular, if an ISP has registered for indemnification afforded by the 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, then 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 Internet service provider, e-mail provider and/or Web site provider for having a Web site or an e-mail service whose terms of use include barring unlawful acts but that permitted such acts due to facilitation of unlawful Internet speech.

It's not the Wild West anymore.

The “e” world at times seems lawless still, but the truth is that the long arm of the law stretches into the ether to right wrongs and police against wrongdoings before they're committed.

Take speech, for instance ' an activity that a bit more than a decade ago seemed wide open and unruled on the Internet. The truth is that an identifiable Internet speaker who sends an unlawful e-mail or who posts an unlawful Internet message is subject to traditional litigation tactics ' a fact and strategy touch point that all e-commerce counsel are well advised to keep in mind, and of which to remind their clients on a regular basis.

However, countless Internet speakers are not effortlessly identifiable, and hence, novel litigation, technical and administrative-law tactics are advantageous for successfully curbing Internet defamation.

Three Novel Attack Strategies

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 provider or Web site provider, or both.

The primary objective of each of these tactics is to identify the Internet speaker. Once that 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 or Web site provider, or both, is to force these parties to remove the speaker's content from the Internet.

Typically, in lawsuits against either an identifiable or an unidentifiable Internet speaker, allegations that interference with business relationships, defamation or intentional infliction of emotional distress ' or combinations of these ' occurred is employed. Litigation against other parties, such as the Internet speaker's ISP, and the Internet speaker's e-mail or Web site provider, or both, usually involves similar allegations, because each repetition of a defamatory remark is a new injury.

Non-Litigation Strategies

Because the Internet is based on a set of mutually agreed-on technical protocols, counsel should keep in mind that 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 to show their untruthfulness or unreasonableness, and perhaps to provide countercontent refuting the offending posting or postings;
• Self-help action against the Internet speaker's ISP, 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 in response, but the average unidentifiable Internet speaker normally lacks the motivation, with this lack of motivation based in part on the person's desire to remain anonymous, and unidentifiable. The lack of motivation may also be economic. Commonly, the cost of initiating a lawsuit is more than the cost of self-help solutions, and the risk of a countersuit is substantial, and so, 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:

• Reporting an Internet speaker's ISP, e-mail provider or Web site provider, or all, to the Federal Trade Commission (“FTC”) for the deceptive trade practice of the provider publishing one thing in its terms-of-use agreement and doing another with respect to unlawful Internet speech;
• Using the take-down provisions of the Digital Millennium Copyright Act (“DMCA”);
• Using state consumer-affairs departments to take action against an ISP, e-mail provider and/or Web site provider for the unlawful acts; and
• Reporting an Internet speaker's unlawful speech to the Securities and Exchange Commission (“SEC”), which may act on speech that is material misinformation about firms under the agency's control.

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. Thus, by suing defendants called John Doe, 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 itself be enough to stop the alleged defamer from posting more 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 with 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 supposed fact.

The Publicity Tactic

As previously suggested, technical tactics, including publicizing the Internet speaker's bad acts via Internet postings, have been useful for curbing Internet defamation. Such publicity is usually, however, accompanied by 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 a decision to sue those who have spoken ill of the plaintiffs 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. These alternatives may be particularly attractive to e-commerce firms, because online posting offer “proximity” to these firms and their clients and market base ' on the Internet, where it's reasonable to assume the firms' customers are likely to see the defamatory content.

The Self-Help Tactic

Self-help action against the Internet speaker's ISP, e-mail provider and/or Web site provider is 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. But courts would rather enforce remedies, and, 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.

Following are some self-help strategies, all of which, under proper conditions, have been judged to be lawfully implemented.

• Impersonate the unlawful speaker on a third party's Internet site and retract the defamatory content or post content favorable to your company or yourself, and that refutes the defamatory content.
• Impersonate a third party on the unlawful speaker's Internet site and engage in similar tactics described in the first point above.
• Use spoofing technology to send bogus e-mail on the unlawful speaker's behalf.
• Use viral software to disable some or all of an unlawful speaker's
  Internet site, or the site of an ISP or mailer supporting the distribution of 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 on prior requests.

Robot Internet software is available to find speech that is egregious to a particular party and to send requests for Internet information in such a way as to move the egregious speech site returns so far down on the hit rankings that most Internet users won't find the offending speech.

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 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 ISP, e-mail provider and/or a Web site provider to the FTC for the deceptive trade practice of publishing one thing in the provider's terms-of-use agreement, and doing another thing with respect to unlawful Internet speech.

An Internet speaker may also use content owned by another. In that case, the take-down provisions of the DMCA may be employed. In particular, if an ISP has registered for indemnification afforded by the 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, then 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 Internet service provider, e-mail provider and/or Web site provider for having a Web site or an e-mail service whose terms of use include barring unlawful acts but that permitted such acts due to facilitation of unlawful Internet speech.

It's not the Wild West anymore.