One question that we get all the time is do people actually win an Internet slander or an Internet defamation lawsuit? For example, we’ll get a call by a potential client whose business is getting attacked on the Internet. Since we are not attorneys, we obviously cannot provide legal advice. Given the volume of work that we do for some of the best lawyers in the country that deal with Internet defamation, then we can tell you certain characteristics that we see that often lead to successful Internet defamation cases. Again, don’t consider this legal advice but just our observations over time.
First, let’s just clean up some terminology a bit. Slander, as generally used by attorneys, is generally reserved for fleeting items, specifically often reserved for the spoken word. According to Wikipedia, slander is a communication of a statement that makes a claim expressly stated or implied to be factual that may give an individual, business, product, group, government, religion, or nation a negative or inferior image and again, it’s usually transitory in nature. On many of the Internet lawsuit cases where we have gathered evidence, what we see mostly is not actually libel but tends to fall under the broader defamation category.
Cyber Investigation Services often participates in many of these cases to help investigate and develop sufficient evidence for the attorneys, especially when the victim is dealing with anonymous postings. From what we have seen working with these attorneys across the country, then there seems to be two direct indications of success in an Internet defamation lawsuit. One is the strength of the case and the second is the skill of the legal and the investigative team that is behind it.
Strength of case is a very gray area that deals with, how defamatory is the material, and obviously this is an attorney-type of issue to decide. As an example, we see some requests for assistance where a real customer of a business really lets the business have it in a review, maybe even the customer crossed the line in the eyes of an attorney. For example, let’s say you owned a restaurant and somebody had a bad meal and then stated that in a review, but then maybe they even fudged a little bit and said the manager cursed at everybody at the table. And let’s suppose that this last statement is not even true. Ultimately, the attorney will have to decide but what we typically see is that is a difficult case for them to pursue, since you’re dealing with a real client and for the most part, the material of concern is mostly their opinion of what happened.
In contrast, what we often see is very malicious attacks implemented by ex-employees or even competitors. In some cases, everything that we see written online about a client is just an absolute lie and often the person was never a customer of our client. For example, maybe they accuse a proprietor of a business of drug use, or stealing from clients, or something that’s just very horrible statement and just totally untrue. That’s going to a much easier case for your legal team to handle, typically because the person is not voicing their “opinion”. In actuality, they are stating something in a factual way but yet the statement is false.
The second major determining factor of success of an Internet defamation lawsuit is very much set by the strength by your legal, and sometimes the investigation, team. In concept, many of these cases appear like they’re fairly simple to handle, so we see attorneys jump in that don’t have a lot of experience; often we see them end up very much over their head. In practice, the experienced attorneys see many complexities arise during their cases specifically as it relates to either legal challenges based on First Amendment rights, or investigative challenges, where it’s very difficult to prove who’s doing certain things on the internet.
For example, your attorney may understand the basics about how to implement a John Doe lawsuit to potentially uncover the poster of defamatory material, however, they can rapidly hit a dead end. Case in point, let’s say that the anonymous person starts fighting the ability of the attorney to obtain their information via a subpoena. This ends up in a legal fight of specific motions in court and it just gets very difficult for inexperienced attorneys.
Similarly, in many cases attorneys find out that when the subpoena the records of a John Doe poster, that the poster went to a place like Starbucks and posted the material; consequently they become uncatchable. Many times, however, some early investigative work would have resulted in identification of the residence, cell phone, or work location of the attacker. So, in short, we have seen is that if you’ve got a strong team and you have a strong case, then internet defamation lawsuits tend to be successful.
