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Brian Tinkham: Social networking on the Internet and defamation claims

It's The Law

Posted: March 4, 2010 10:42 p.m.
Updated: March 5, 2010 4:55 a.m.
 
In the past, businesses and individuals relied in part on word-of-mouth from existing clients in order to market their products or services. If you had a problem, you would ask a friend and he would say, "You need to go to so-and-so for that problem, product or service."

However, as the Internet has evolved, marketing plans have changed. Now, a prospective client only needs to perform a basic Internet search on an individual, business, product or service and a whole host of information is at that client's fingertips.

However, in the age of Facebook, Twitter, MySpace or other social networking sites, what does a business or individual do if the information posted is not true, is harmful to their reputation or if that defamatory information is one of the first things that "pops up" on a Google search?

The big question that businesses and individuals need to ask themselves in these situations is, "What are my damages?"

The damages that you would have to prove in your case are that there has been an injury to your reputation, and that the injury has resulted in a measurable loss.

A bruised ego is probably not worth taking someone to court, as lawsuits can be long, arduous and costly.

If you do elect to go forward with a lawsuit, an additional question is whether you can successfully sue a social networking site such as Facebook, MySpace or Twitter for the blogger's comments. The answer to that question is, "not likely."

The Communications Decency Act of 1996 (CDA) is a federal law that is extremely protective of online speech. The CDA specifically states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

In general, this statement means that a plaintiff cannot sue the operator of a site for defamatory comments made by a third party. For example, if a person leaves a defamatory statement and the social network posts it, the CDA will shield the social network from liability.

However, if the social network alters the meaning of a comment in a significant way, a court may determine that the social network is an "information content provider," which means it wouldn't be protected under the CDA.

Either way, it still is very hard to hold a social networking site liable for a defamatory comment posted by another person against you, which in turn leads back to the first question, "What are my damages?"

Outside the CDA, you could sue the person who posted the blog - that is, if you can identify the poster. In some cases, you may be able to collect your damages, provided that the person has the financial ability to satisfy the judgment.

However, what do you do if the blogger doesn't have the funds or assets to satisfy the judgment? Is it worth investing thousands of dollars in attorneys' fees and court costs just to have a piece of paper saying you won? Probably not.

Similarly, attempting to take down the defamatory blog may be equally expensive and may not stop other defamatory comments from appearing on the Internet, which again leads to the question, "What are my damages?"

So what can you do? In many of these cases, a good offense is the best defense against defamatory comments. In general, Google.com and other search engines currently position their Web sites in each search based on the popularity of a Web page, the position and size of the search terms within the page and the proximity of the search terms to one another on the page.

Thus, businesses and individuals should design their Web pages to ensure that their pages come up first in an Internet search.

Although this is not a perfect defense to defamatory comments, it may be the best option for your business. As each case and defamatory comment differ, contact your attorney for further advice regarding defamatory comments on the Internet.

Brian Tinkham is a member of the law firm of Poole & Shaffery, LLP, a law firm that provides general counsel and litigation services to businesses and management personnel. He can be reached at (661) 290-2991 or by e-mail at info@pooleshaffery.com. His column reflects his own views and not necessarily those of The Signal. "It's the Law" appears Fridays and rotates between members of the Santa Clarita Valley Bar Association.

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