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What to do if you are a victim of cyberbullying or cyberlibel – Part 2

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In May 2013, I provided parents of children who are being cyberbullied with tips on how to deal with the cyberbullying from a lawyer’s perspective. In this posting, I will provide tips to adults and businesses that are being cyber-libelled. Anyone can be made a target of online defamation, with devastating consequences to one’s personal and professional reputation. Indeed, at its worst, cyber-libel can bring an individual or business to the brink of bankruptcy.

Tip #1 Send take-down requests to the Internet Service Providers

As soon as you become aware of the cyberlibel, take steps to identify the companies that host or control the websites on which the libel is posted, often referred to as Internet Service Providers (“ISPs”). Usually, you can do so by running some online searches. Sometime, it is obvious who the ISP is (Facebook or Twitter for example). If it is not obvious, you may need to get help from an IT Professional.

Once you identify the ISP, send them a letter (by email should suffice) with a “take-down” request. In your letter, specify the following:

  • Your name and business name;
  • Identify the URL (the web address) where the libel content is posted;
  • State that the URL is controlled / hosted by the ISP you are writing to;
  • State that the URL contains information that cyberbullys you/defames you/harasses you/is untrue/invades your privacy/impersonates you, etc.
  • State that it is causing serious harm to your or your business’s reputation;
  • State that the content violates the ISP’s Terms and Conditions of Use or Policies (most ISPs will post these policies on their website);
  • Ask that the content be removed from the web immediately;
  • State that all the information in your letter is true to the best of your knowledge and belief;
  • Ask that the ISP disclose the identifying information of the person who made the posting, including IP addresses; and
  • If the ISP will not disclose the identifying information (which it will often not do for privacy reasons), ask that it preserve the identifying information until a formal court order can be obtained.

In some cases, the ISPs will comply and remove the information from the web. That does not end the process. Once the ISPs remove the offending content, it will likely still appear in Google’s (and other search engines’) search results, because the search engine “caches” those results for a certain period of time (essentially, it copies the contents of the URL into its own database). You should therefore submit a take-down request to the search engines, by requesting that the “cached” site be removed from search results. Each search engine has a mechanism for submitting such request (for example, click here for Google removal requests).

I also recommend running regular Google searches of you or your business name (in various formats) in case the content has been reposted or has migrated to other websites, and repeating the process as needed.

Tip #2, identifying the perpetrator

In some cases, such as when the ISP is located outside of Canada (in particular, the United States, where ISPs enjoy legal immunity from defamation), the ISP may refuse to remove the defamatory content. Even if the ISP removes the content, it may not end the cyberlibel, because the person posting the libel will still be out there, posting new content. The only effective way to bring an end to the problem is by identifying the perpetrator.

In order to identify the perpetrator, you will need to apply to the Canadian courts for a disclosure order. The order will be made against the ISP that controls the website, and will order the ISP to disclose identifying information about the person behind the postings.

In some cases, one order will be sufficient to uncover the information necessary to identify the cyberbully. In other cases, this process may need to be repeated a number of times until the culprit is identified. However, it is likely that the Court application will proceed unopposed, as most ISPs will not respond to the application, but simply await you serving them with the issued order.

Tip #3, commence a defamation action

Once the perpetrator is identified, you must serve him or her with a letter demanding he/she remove the content from the web. If the demand is not complied with, you can commence an action for defamation in Canada against the perpetrator seeking damages and injunctive relief.

Because online defamation can have a significant detrimental impact on professional and personal reputation, Canadian courts have been issuing increasing damages awards. In recent cases, for example, defendants have been ordered to pay damages in excess of $100,000 to victims of online defamation (as a comparison, damages for defamation published in other forms of media are often within the Small Claims Courts’ jurisdiction). Furthermore, in Canada, the ISPs may be named as Defendants and may be held liable for defamation, if they had been notified of the defamation and they failed to diligently remove it.
If the defamation is clear, egregious and overt, a plaintiff may apply to the court for an interim order requiring the ISPs to remove the defamatory content and restraining the defendants from posting further defamation.

Tip #4, bring a John Doe action

If you have tried but failed in identifying your perpetrator, there is recourse available to you in the Canadian Courts. You may sue the perpetrator using the pseudonym “John Doe”, seeking damages and injunctive relief. If you are able to show that the lawsuit had been brought to the attention of John Doe (i.e., served on his/her through such means as online postings or emails), and John/Jane Doe failed to defend it, you may be able to obtain default judgment against the perpetrator. Even though you cannot enforce it against someone whose identity is unknown, you can send a copy of the Judgment to the ISP, and it is likely that the ISP will then remove the defamation from the web.

Tip #5, contact an online defamation lawyer

The legal and technical issues involved with online defamation are relatively complex. If you need legal advice, contact a lawyer with experience in the area.

Maanit Zemel
Partner
Miller Thomson LLP

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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.
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