The Internet and social media have empowered us to communicate like never before. Unfortunately, cyberspace also has a dark side, because it provides a platform for Internet users to anonymously publish false information that can be professionally and personally devastating. Whether it is a calculated attack by a competitor or former employee or a spontaneous rant by a disgruntled customer or personal enemy, online anonymous defamation can cause serious harm to a business or person resulting in massive financial losses and permanent reputational injury. Since Internet postings can be accessed by individuals all over the world and most postings remain online permanently, how do you restore your reputation after you have been the victim of online anonymous defamation?
Defamation is a publication that is false, derogatory, unprivileged and that has a natural tendency to cause injury or special damage. Despite the feelings of keyboard courage or anonymity that embolden some Internet posters, under the law anonymous statements made online can constitute defamation. The core issue is whether a statement asserts, either explicitly or implicitly, a provably false statement of fact. Mere statements of opinion (e.g., an expression of a person's feelings that cannot be proven true or false) are generally not actionable under defamation law. The more a statement implies a definitive act that can be proven to be true or false the more likely it is to be a statement of fact which could potentially qualify as defamation.
By filing a defamation/libel lawsuit against "John Doe" you will obtain subpoena power. Subpoenas should be immediately served on the ISPs to obtain the registrant information used to make each posting and, more importantly, the IP address. While it is nearly impossible to trace a posting to a particular individual, it is often possible to trace it to a particular computer and then use circumstantial evidence to establish the identity of the individual or entity responsible for the posting.
Each IP address on the Internet is administered by one of five Regional Internet Registries ("RIR") and the applicable RIR reveals the owner or host of a particular IP address. Confirm the ISP for the IP address at issue and then serve a subpoena to learn the legal name and physical address of the individual using that IP address on the date in question.
After the identity of the owner of the IP address is confirmed, amend the lawsuit to add the responsible individual and his or her company as named defendants in the lawsuit. Immediately seek records that will establish that the culprit was "in town" when the postings were made (e.g., credit card charges, bank records, etc.).
Many ISPs maintain customer analytic records showing the IP addresses that viewed particular postings on their website. Woopra is a leading company providing this service. This data is often maintained to allow a website to sell advertising space by telling an ad buyer that they have a certain number of visitors to their website each day and the location of the visitors.
Although defamation and libel may carry "presumed" damages, jury instructions in many states advise juries that the amount of such damages is solely within their discretion and they may determine that $1 is sufficient. Therefore, you must be prepared to prove causation and damages even if the postings constitute clear libel or even libel per se.
Most internet search engines such as Google, Bing and Yahoo have policies stating that they will only de-index (i.e., remove from search results) a posting or uniform resource locator ("URL") after being presented with a court order that determines the content to be false and defamatory. Seek such a stipulated court order in connection with any settlement or ask for it as part of a judgment if the case proceeds to trial.
In conclusion, even though the Internet makes it remarkably easy to anonymously defame an individual or company, a properly handled legal action can help you restore your reputation and pursue monetary damages if you are the victim of an online attack.
