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Badmouthing on the 'Net

Continued popularity of the Internet has led to "side effects" such as increased use of the web for unlawful and abusive conduct. Because web abuses are limited only by the boundaries of the human imagination, victims of and laws governing such abuses have to adapt quickly to keep pace. Internet abuse is a complex technological and societal problem with no easy solutions. This article will examine one form of abuse involving chat-rooms and computer bulletin boards -- derogatory statements about a person or company -- and to explore the options available for victims.

Various websites have "chat rooms" and bulletin boards which allow someone "entering" the room to communicate with others. (Electronic bulletin boards, which may or may not be part of the Internet, are also common.) Once inside the room, the user can communicate anonymously by responding to messages posted by others in the room or by posting their own. Commonly, chat rooms and bulletin boards cover specialized topics, such as one industry or even a single company.

Entrepreneurs increasingly find themselves drawn to chat rooms and bulletin boards featuring their industry or company. While this may be useful, it can also be a problem if the messages are critical or unpleasant. Such messages can be posted by disgruntled former or current employees, disappointed customers, or dissatisfied shareholders. It often is impossible to identify the source or determine the agenda.

Unfortunately, few legal options are available to redress badmouthing on chat-rooms and bulletin boards. This is because the source usually is anonymous or writes under a pseudonym, and because the message is protected as free speech. The question becomes whether the speech causes an actual damage which can be relieved through litigation. Legal action can be expensive, inconvenient and time-consuming, so the costs and benefits must be carefully weighed.

Most derogatory Internet communications probably cannot be effectively countered by suing Internet service providers (ISP) which published or distributed the messages. The Telecommunications Act of 1996 and the common law of many states prohibit a victim of Internet communications from asserting claims against ISPs who simply were middlemen.

ISPs also can be expected to mount vigorous defenses to such claims, thereby making this type of litigation very costly. As the law has developed, it appears that claims will have the greatest success when brought against the actual author.

Identifying the actual author is difficult, because the policy of most ISPs is to protect the identities of their members in strict confidence. This means that a lawsuit brought against an unknown person may be the only method of identifying the actual author. Once such a case is filed, it should be possible to subpoena the ISP to compel disclosure of the author's identity. Some courts are now requiring the plaintiff in "John Doe" actions to establish certain facts before pursuing this strategy.

There are many obstacles to pursuing legal action against actual authors. It is important to consider the seriousness of the situation before calling your lawyer. When faced with derogatory statements against you or your company, ask yourself a few questions.

  1. Are the contents of the objectionable communication false? (This is important because truth is a defense to a claim of defamation.)
  2. Is the communication factual in nature or does it constitute mere opinion? (The latter is protected free speech even when harmful to one's reputation.)
  3. Has the communication truly caused injury, or is it merely insulting?

In our experience, legal action usually is not found to be warranted. There are other steps to take:

  • Post company messages on electronic bulletin boards advising that you monitor Internet communications and will take appropriate legal action against those who violate the rights of the company and its employees.
  • Reply to Internet communications with the company's version of the story. (This can be effective in some cases but also can create a problem if you generate a higher level of undesirable chatter about the company and its products, services or management.)
  • Simply ignore the activity. (Sometimes it's best not to dignify the derogatory messages with a response.)

By taking some simple steps, you can solidify your Internet strategy, potentially lower the risk that certain negative comments will appear on website chat rooms and electronic bulletin boards, and, in the process, lower your stress level so you can focus on more important issues.

Mr. Harrington is an associate in the Litigation Group, of the Princeton office of the law firm of Buchanan Ingersoll.

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