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The Truth About Internet Defamation

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You don’t have to have your name or face attached to your online activity. That illusion of anonymity sometimes makes people feel comfortable posting lies, false statements, and private information. These posts, known as internet defamation, can impact the life and livelihood of both individuals and businesses. But you’re not at the mercy of anyone who feels like lying on the internet. Something can be done about it.



See Internet Defamation with Kenton Hutcherson for a complete transcript of the Easy Prey podcast episode.

Kenton Hutcherson is an “internet attorney” and owner of Hutcherson Law, PLCC. His team focuses on a very specific type of law: Helping people and businesses who have been attached on the internet. But he didn’t set out to be an internet attorney. In fact, he got his start doing high-stakes commercial litigation. When he started his own practice, he advertised himself as a tech-focus law firm. His very first client had an internet defamation problem. It ended up being a big case, and Kenton had some success with it. The word got out that he was the person to go to if you have that kind of problem. Now he and his team handle cases all over the country.

What an Internet Lawyer Does

Kenton works in a few different areas. One is copyright infringement, where people steal copyrighted content and post it on the internet. Another is invasion of privacy, especially “revenge porn,” where a partner who feels jilted after a breakup posts the other partner’s intimate images online to get back at them. But the largest is internet defamation. It happens all the time. Behind a keyboard, looking at lines of text instead of another human being, makes people feel secure and hard to catch. We say things on the internet we would never say in real life – and it causes tons of problems.

People, when they’re behind a keyboard, think that they’re invincible and they’ll never be caught.

Kenton Hutcherson

Libel, Slander, Defamation – What’s the Difference?

Many people have heard the terms “libel,” “slander,” and “defamation.” Sometimes they’re used interchangeably to mean “lying about someone in some way.” But they actually have similar but distinct definitions.

“Defamation” covers the entire category. It refers to making a false statement about someone that damaged their reputation or caused them some kind of damage, often financial. Libel and slander are subcategories of defamation. These defamatory statements are called libel if they’re written and slander if they’re spoken. Most internet defamation is libel.

Laws haven't yet caught up with internet defamation, which makes it challenging.

Most of the laws that we have are focused around slander. They were written in an era when libel was largely in magazines and newspapers with a short shelf life. The statute of limitations on libel is very short – often a year – because nobody really cares what a newspaper said a year ago. The lawmakers didn’t count on internet defamation. On the internet, libel can last forever and do damage for years or decades. Laws need to catch up to the new reality of defamation online.

Bringing Internet Defamation to Court

Kenton gets calls every day from people who had someone else say something untrue about themselves or their business online. But just because someone lied about you on the internet doesn’t mean you can successfully sue them. Internet defamation is almost always upsetting. But it has to cause some sort of harm, such as lost sales or losing a job, if you want to win in the courtroom.

The biggest thing is, how much damage is it causing you or will it likely cause you?

Kenton Hutcherson

One type of defamation is called “defamation per se.” That’s where the defamer untruthfully accuses the defamed of committing crimes, having a loathsome disease, or committing some sexual impropriety. In these cases, the law presumes you have been damaged so you don’t have to prove it. If the defamation isn’t considered defamation per se, you have to prove some kind of damage. If you can’t prove that the defamation hurt your finances, lost you sales, caused you to lose your business, or something similar, your claim will fail.

It’s also important to do a cost-benefit analysis if you’re considering taking internet defamation to court. To go to court, you will need to hire a lawyer. That will cost tens of thousands of dollars. How much damage is that defamatory statement really doing, and is it worth the cost? Sometimes the answer is yes. Doctors, lawyers, and many small businesses rely on their reputation, so defamation may have a severe effect on their livelihood. But in other cases, the lost business isn’t worth the cost of the court case.

The Goal of Going to Court

The goal of going to court over internet defamation varies depending on the case. In many cases, the goal is to “stop the bleeding” and get the defamatory content off the internet. If the defendant has money or assets, the goal might also include some monetary damages.

If it’s a business bringing the defamation case and the defendant is a competing company, that changes the game. It happens more often than you’d think. In that case, there is value in trying to get some money out of the company spreading lies. When another company is spreading lies about you to make your customers come to them, they’re making money off the lies they’re telling about you. You should be able to get some of that money back in a court judgment.

What Puts Businesses at Risk of Internet Defamation

In business, there’s a saying that the customer is always right. That can be abused. Some people make outlandish demands on businesses, then claim they were ripped off. From that perspective, we need to understand that we’re in a vastly different world than we were in even twenty years ago. It’s very easy for anyone to go online and say whatever they want. And if a lie gets enough attention, it can do some real damage. Before the internet, individual customers didn’t have a way to cause that much damage. But these days, reputations are much more fragile than they used to be.

It’s very easy for anybody out there to go online and cause some real damage to a company.

Kenton Hutcherson

Another risk of defamation is when someone is hard to get along with. They may get defamed because people just don’t like them. When someone is unhappy with how they’ve been treated because a person is personally difficult, they may go beyond what actually happened and start spreading libel. Being nice to people and treating them with respect can go a long way towards reducing this risk.

Finally, some people are what the legal profession calls “judgment-proof.” They just don’t have money. You may have a great case, go to court, prove damages, and win a million dollar judgment from the person who defamed you. But if that person only has $500 to their name, you’ve spent all that money on a court battle to win money you’ll never be able to collect. It’s important to consider if it’s worth it from that perspective, as well.

Extortion by Defamation

Another threat businesses may face is called extortion by defamation. An unhappy customer goes to the company and demands money, free products, or something else. If they don’t give it, they threaten to defame the business online. Unfortunately, it happens, and there’s not a lot you an do. Once they do post defamation on the internet, you can go after them.

In an age of internet defamation, nobody should take the position that the customer is always right. Sometimes the customer is wrong, and sometimes the customer is trying to take advantage of you. Always agreeing to customer demands put you at risk of extortion and, ironically, more defamation.

You shouldn’t take the position that … the customer is always right because that opens to door to abuse, to defamation, and to extortion.

Kenton Hutcherson

Internet Defamation and Review Sites

The Communications Decency Act from the 1990s is a federal law that protects review sites. It says that if you’re a website and someone else posts content on it, you’re not liable for the things other people post. If someone posts internet defamation on a website, the website can’t be sued for defamation. However, if the website was involved in creating the content itself, then they can be held liable.

There have been many lawsuits against review sites. Most have failed because unless you can prove that the site itself was involved in creating the defamation, they can’t be held liable. You’re left going after the individual themselves.

Review sites are protected from liability for internet defamation in user-posted reviews.

When Kenton started his firm in 2007, there were websites that would refuse to remove any review, even ones that a court determined were false and defamatory. The way to deal with that turned out to be getting a copy of the court order and sending it to Google. Google would honor the court order and remove that page from their search results. Since search results are where a lot of the damage happens, this was fairly effective. Recently, Google has decided that if websites refuse to remove illegal content, they’re not going to show up in search results anymore. A lot of websites changed their policy, which is great.

How Defamatory Reviews Get Taken Down

As a disclaimer, Kenton represented Yelp in the past – he worked with their in-house legal counsel as local counsel for a small matter in Dallas. But he will be using Yelp as an example here. Say someone left a defamatory review on Yelp. The business went to court and got a court order for the reviewer to take the review down. Yelp’s position is that the court order is against the person who wrote that review. If they don’t comply and take it down, you can have them held in contempt of court and thrown in jail or fined. They don’t want to say they won’t remove the review. But since the order is against the person who wrote it, they’re the ones who need to comply, not Yelp.

If the person doesn’t take down their review, generally all you’re left with is holding them in contempt of court. Your lawyer files a motion with the court, and they could be jailed, fined, or both until they remove it. That becomes a challenge when they created the account they used to post the review with a temporary email account and forgot the password. Yes, they created it, but the credentials are gone and the password reset goes to an email that doesn’t exist.

Unfortunately, the Communications Decency Act gives platforms strong immunity in these situations. The victim doesn’t really have much they can do about it. The only other option at that point is doing what they can to bury the defamatory review. That’s called reputation management, and there are lots of reputation management companies who will help you promote positive things to bury internet defamation.

The Most Unusual Case Kenton can Talk About

Kenton and his associates have seen a lot of crazy things in their time working on internet defamation cases. But one case was particularly noteworthy. The client was a medium-sized business. They weren’t a household name, but what they sold was expensive, so their reputation was extremely important.

They were also investing a lot in online marketing. So they hired a guy who promised he could do a lot to improve their marketing and reputation. After a few months, he told them that he knew how important their reputation was, so they had to pay him a lot more money or he would go online and destroy it. When they contacted Kenton, he realized he knew of that guy, and he really could destroy a business online, basically overnight.

At first, the business paid him. When he demanded more money, they got the FBI involved, and he got arrested. He ended up with a deal where he’d spend a few years in prison. Within a year, he got out of prison and into house arrest, where he immediately defamed the business. They lost millions. The FBI arrested him again and he was sentenced to seven years. Just a month later, he broke out of prison. Kenton had to tell his employees to be careful of their safety because he might be coming after them.

Luckily, he was quickly re-captured. And Kenton eventually got almost all of his defamation off the internet. There was over 2,000 pages of it. He knew what he was doing and made a lot of effort. But not all cases are that successful. He has had clients who have had to change the name of their business and start over.

How to Not Commit Internet Defamation

If you have a terrible experience with a business, it’s easy to want to lash out. But if you want to express your displeasure, you need to make sure you’re not stating anything false. Sticking to stating opinions and not stating facts at all is even safer. If a business comes to Kenton and gives him your statement, he asks where is the false statement of fact. If there are no false assertions of fact, then the business doesn’t have a case.

You need to express your displeasure without making a false assertion of fact.

Kenton Hutcherson

When people are writing a negative review, they’re typically not thinking about the legal implications. But not doing so could leave you open to a lawsuit. Anything you say must be completely true. And it’s best to stick to opinions instead of stating fact. Even if the fact is true, if the business is inclined to sue, now you have to go through a lawsuit. Even if you don’t lose, it’s scary, stressful, and expensive, and can be very damaging.

If someone does sue you for defamation and you lose, any financial judgment can’t be discharged in bankruptcy. Defamation is what’s called an intentional tort, and intentional torts follow you even through bankruptcy. It will follow you until you pay it off. Think carefully before you post. Wait until you’re less angry if necessary. Just don’t defame people.

Learn more about Kenton Hutcherson and his work at hutchersonlaw.com.

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