In the world of business and relationship-building, reputation is critical. Whereas reputation used to be based on word of mouth, it is now mostly powered by search engines and databases. Online reviews can make or break a business from getting new clients or opportunities. An employee prospect can be derailed when a Google search reveals negative information or an embarrassing information.
While our Constitution protects freedom of speech, speech has its limits. This post explores how a person or business can take action against defamatory online content.
Is it freedom of speech or defamation?
Most information and opinions that are posted online are protected under the First Amendment, including speech that is made anonymously (such as a blog post or comment made under a username). However, if the speech runs afoul of Texas defamation laws or interferes with a business contract or trade secret, you might be able to sue for damages and to get the content removed from the Internet.
In Texas, someone is liable for online defamation if they publish false information about you that damages your reputation or causes material harm. The action must have at least been negligently made. Publication can include putting a damaging statement on social media, comment section, blog post, or an online review.
Although defamation usually requires proof of damages, there are certain statements that are so inherently bad that you don’t need prove damages. These include false statements involving:
- Someone’s business or profession;
- Someone’s criminal history;
- Someone’s contraction of a loathsome disease;
- Someone engaging in sexual misconduct.
It’s important to know that there are different defenses one can use against a defamation claim, and the legal requirements change if the victim is a public figure.
What Can I Do?
Act Fast
If you think someone has posted defamatory content against you online, you only have 1 year in Texas to file a lawsuit. Moreover, because there are services out there that archive webpages or “scrape” and aggregate content from all over the internet, the longer the content is online, the more likely it is to spread to different locations.
Non-Litigation Solutions
Before filing a lawsuit, see if:
- The defamatory content violates the terms of use of the website it’s on. Sometimes websites will remove content if it is brought to their attention.
- The person will take down the content on their own.
- A lawyer can send a cease and desist letter to get the person to remove the content.
Although many have tried, suing the website hosting the content will get you nowhere. This is because websites are protected under the federal Communications Decency Act. If you’re going to sue for online defamation, it has to be against the person.
Identify Anonymous Posters
What if the person who defamed you online used a fake or anonymous profile? Thankfully, there are ways to unmask anonymous posters online. This process requires filing a “John Doe” lawsuit and several subpoenas, which means that a lawyer will need to be involved.
Get a Court Order
Once you win your defamation lawsuit, you can take a court order to the website so they can remove the content. You can also take the court order to a search engine, such as Google, to scrub it from their search results.
written by Alexis Guadarrama
