First Reference company logo

Inside Internal Controls

News and discussion on implementing risk management

machine cogs image

Help! I have been defamed online: Practical tips – Part I

Anyone who has been defamed online knows how devastating such experience could be to a person’s professional and social reputation. Indeed, even years later, some victims are still afraid to “google” their names, not wanting to discover an obscure link that contains the defamation.

Image taken from: www.switched.com

Image: www.switched.com

The case of the defamatory blog

Consider the following hypothetical scenario:

Someone who does not like you posts comments about you, anonymously, which are untrue and defamatory. Within minutes of their posting, they are picked up by other websites. Worse yet, search engines such as Google pick them up so that, if someone runs a search under your name, the results contain the defamatory comments.

What should you do?

Time is of the essence

You must move very quickly. The longer you wait to respond, not only is irreparable harm being done to you and your reputation, but the defamatory statements are likely spreading rapidly all over the web, and your task of removing them from cyberspace is becoming more and more difficult.

Consult a lawyer with expertise in Internet defamation

Because the field of internet defamation is technical and complex, you need a lawyer who can quickly respond to the practical and legal aspects of the problem.

Locate the website operator and Internet Service Providers

If the posting is made anonymously, one of the first things your lawyer will attempt to do is identify and locate the contact information of the relevant internet service providers (“ISPs”). If you are lucky, this might be a relatively simple task. In some cases, however, it may require the services of a computer forensic expert.

Identifying the blogger

Because the blogger is anonymous, you should consider bringing an application to a Canadian court for an order that the ISP reveal the contact information of the anonymous blogger (for more information, see Angry Bloggers Beware! – Your Anonymity is not Guaranteed ). This is particularly useful if the person who is defaming you is someone you know. Once they are faced with the possibility of being discovered and sued, they might decide to take down the posting themselves.

Notice to the website operator or ISP

In Canada, a website operator or ISP that continues to publish defamatory content on the internet after receiving notice of the defamation, may be held liable for publishing it (for more details, see Cyberlibel – Why Your Interactive Website Might Expose you to Liability ).

You should, therefore, send a formal notice to the website operator or ISP, advising them of the defamation and demanding the immediate removal of the defamatory content. The website operator and ISP might respond positively by removing the content voluntarily. If they do not respond, however, legal action should be considered, including the option of bringing an application to a court for an order to remove the content.

Depending on where in Canada the parties are located, there might be strict timelines for serving notice or commencing legal action against the website operator or ISP. That is another reason why you should consult with an experienced lawyer as soon as you discover the defamation. If you wait too long, you might miss an important deadline that could be fatal to your case.

For more information on how to deal with American ISPs and Search Engines, see next months’ postings.

Maanit Zemel, Associate
Miller Thomson LLP

Follow me

Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security. Read more.
Follow me
Send to Kindle

, , , , , , , , , , , , , , ,

Comments are currently closed.

6 thoughts on “Help! I have been defamed online: Practical tips – Part I
  • Maanit Zemel says:

    In certain circumstances, ‘all of the above’ (i.e., the newspaper, editor and writer) may be liable for defamation. For more information, please see my posting entitled “Cyberlibel – Why Your Interactive Website Might Expose You to Liability” http://blog.firstreference.com/2010/07/12/cyberlibel-%e2%80%93-why-your-interactive-website-might-expose-you-to-liability/

  • Sujata says:

    People write letters all the time about their bad experiences with someone or something.
    Is a newspaper required to screen the content of ‘letters to the editor’?
    Who is liable (the newspaper, the editor, or letter writer) if a defamation suit resulted.

    With most newspapers being available in online format these days, the information and damage could spread pretty fast.

  • Maanit Zemel says:

    That is an interesting scenario and should be dealt with by YVille with caution. Accusing someone of fraud is very serious.
    In the hypothetical scenario above, the fact that John had been involved in fraudulant activity previously does not necessarily mean that his current business is also fraudulant.
    Since the fraud conviction in XVille is a matter of public record, the YVille Star could publish an article about it, but must be careful in its choice of words. While the YVille Star can publish information about his previous conviction and activities in XVille (by, for example, quoting from the article in XVille’s newspaper), it should be careful not to suggest that John is also invovled in current fraud, unless it has investigated the matter and has proof that he is currently invovled in fraud. If the latter is the case (i.e., it has done its due diligence and has uncovered some evidence of current fraud activities), the Star might still be risking being sued for defamation, but may have a number of defences that it can rely upon in responding to the lawsuit.

  • Sujata says:

    Hypothetical situation: A few years ago, John and his ABC company were convicted of fraud by the town of XVille and Jane’s family was a victim of that fraud. The details of the conviction were published in XVille’s local newspaper and resulted in John having to leave town.
    John has now set up shop in YVille under a different company name and is indulging in similar fraudulent activities.
    Is it legal for Jane or other intersted parties to alert YVille residents by publishing details of John’s prior convictions in the YVille Star?

  • Maanit Zemel says:

    Dear Sujata,

    That is a very good point.
    On proper notice, search engines have the ability to clear caches. That is one of the recommended steps following the removal of the defamatory statements from the original website.
    For more information on how to deal with search engines, please see part III of my article, coming out in November 2010.
    Maanit

  • Sujata says:

    Hello Maanit,
    I have noticed that google searches show the current page and also a ‘cache’. If an offensive piece of information is removed, it still stays in the cache until the web crawler goes through that page and does the next update. In some cases, it can take more than a month for the cache to refresh.

    I wonder if search engines administrators can do anything to clear the caches too when a request is made to remove offensive material from a web page.