A disgruntled customer has posted an internet entry critical of your dealership. You consider it false and defamatory. You want to take action. What are your rights?
Question: Can I sue the website that posts the statement and the internet service provider that hosts the website? After all, if a newspaper published the false and defamatory statement, I could sue the newspaper for defamation.
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Answer: Unfortunately, the rules applicable to website operators and internet service providers protect them. Congress has passed legislation known as the “Communications Decency Act” that provides that no provider of an interactive computer service shall be considered a publisher or speaker of information provided by another information content provider. Translation: if someone posts a defamatory statement on the internet, it shall not be considered “published” (a key element of a defamation claim) by the website operator or the internet service provider. Consequently, a website operator or an internet service provider cannot be held liable in a defamation action unless it took an active role in creating and developing the defamatory content.
Question: Can I sue the person who posted the statement?
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Question: How difficult is a defamation action?
Answer: Defamation actions are generally expensive, are sometimes difficult to prove, and often yield disappointing results. To prevail, a plaintiff must show that the defendant (1) published (2) an actionable statement, (3) with the requisite intent that (4) caused damage to the plaintiff.
Whether a statement is actionable can be difficult to prove. It cannot be an opinion. It must be a factual statement that can be shown objectively to be false. Moreover, the statement must be one that holds the party defamed up to public scorn or affects the public’s opinion of the person defamed.
Damage can be an equally difficult element to prove. How does one show and quantify the damage suffered from an untrue statement? The fact of damage and the extent of damages are often difficult to prove in a defamation action.
Question: If I want to sue nevertheless, how can I find out who made the statement?
Answer: If you decide to proceed with a defamation action, you may use the regular discovery procedures of a court to find out who made the defamatory statement. Sometimes, the identity of the poster will be so well hidden that even subpoenas may not unearth the person’s identity, but compulsory process often can yield results.
Question: Don’t I have to sue someone to use a court’s discovery process?
Answer: Of course, but you don’t have to know the name of the person you want to sue to file an action. You can file an action suing “John Doe”. This indicates that the plaintiff does not know the identity of the defendant. It establishes a court proceeding so that discovery can be undertaken to learn the identity of the defendant. Using the “John Doe” action, subpoenas can be issued to the website publisher and the internet service provider to disclose the identity of the person who made the statement. Of course, if the website publisher and internet service provider are out of state, there may be issues with service of a subpoenas. It may be necessary to go to the state or states where the website publisher and the internet service provider are headquartered, have the local courts issue subpoenas based upon the subpoenas issued in the state where the action is filed, and pursue those to learn the poster’s identity. You can expect that this will be a costly procedure.
Question: Are you kidding?
Answer: No. Finding the person who posted a defamatory statement and proving that he or she posted it, if it can be done, can be very costly and may yield very little in return.
Question: So what do I do?
Answer: There are several things that a dealer should consider:
- Adopt an internet strategy. All dealers today have a significant presence on the internet. Some use it better than others. However, money that you would apply toward a lawsuit against a disgruntled person making a defamatory statement can be paid to a consultant to help the dealer create a strategy to maximize positive internet results in search engines and raise the position of positive comments while lowering the position of negative comments about the dealership in search engine results.
- Don’t be afraid to tell your story to websites and ISPs. Even though you can’t sue a website provider or internet service provider, it doesn’t mean that you can’t correspond with them to provide information that shows the statements of the disgruntled poster to be false. This may have an impact on the willingness of the website or the ISP to continue to post the statements.
- Answer false charges. A positive response to negative comments may be valuable. Dealers fear that responding to a negative posting will simply give the posting more attention than it deserves. However, a search may disclose the negative posting anyway. A posting that responds to the negative posting and tells the story can go a long way to neutralize it, especially if an internet consultant can help provide a better position for the positive response in search results.