(Continued from part one. As in part one, nothing herein should be construed as legal advice.)
First things first: take screenshots, create pdfs, or save offline copies of the web pages where the libel occurred. Be sure to note the URLs and bookmark them; you’ll need to share these with others later. Also retain copies of any emails, phone calls, faxes, instant messages, or other communications you send or receive pertaining to the matter going forward.
Identify The Site Hosting Company
Go to the Network Solutions WHOIS Search page and enter the domain name of the site where the defamatory material appears. For example, if you were investigating Google, you’d enter “google.com”. The WHOIS record will show in whose name the domain is registered, and will also list the Domain Name Servers (DNS) on which the site is hosted. The DNS entries will follow this format:
[server ID].[host company name].com
Now that you know the host company name, go to their website by typing www.[host company name].com into your browser. If that doesn’t get you to their site, do a Google search on the company name to find it.
Once on the hosting company’s site, look up their ToU/AUP. You may have to hunt around a bit to find it, and may have to click a link to a page where the company’s hosting services are being offered for sale, but the document you need will definitely be somewhere on that site. Find the paragraph in it which specifically prohibits defamation, libel, or ‘any other illegal activity’, which should read something like this.
[must not] encourage, allow or participate in any form of illegal or unsuitable activity, including but not restricted to the exchange of threatening, obscene or offensive messages, spreading computer viruses, breach of copyright and/or proprietary rights or publishing defamatory material;
If the document is very lengthy, you can use your browser’s Find > On This Page option to speed up your search. When you find the paragraph, make a note of the paragraph number or letter and save the entire document as a pdf, screenshot file, or offline web page for later reference. Even if you don’t find the paragraph, the fact that the host company operates in a country with libel laws gives you ammunition to proceed.
Put The Hosting Company On Notice
Click the host company’s ‘Contact Us’ link and look for the ‘Abuse’ department or email address. Some companies take abuse so seriously that they provide a telephone hotline.
Use the provided email address or phone number to report the incident(s). If you begin with a phone call, follow up with an email to create an electronic paper trail. You can follow this basic format, customized with your details:
Subject: Your Client In Violation Of Your [ToU or AUP]
Dear [Hosting Company Name] Representative:
Your client is using a website hosted on your server to make libelous statements about [me/my work/my business]. Your client’s statements are illegal and in violation of your own [ToU/AUP], [provide paragraph number or letter]. In allowing your client to utilize your hosting service for such use you may be held liable as the publisher of the libelous statements if you are made aware of them and fail to take action to remove them. Here are links to the offending content:
I am taking this very seriously, and if I do not receive notice that you are taking action to remove the offending material I will pursue legal action against your company in the matter.
– [your name]
– [your contact info]
School The Hosting Company
You may luck out and score a win with your first contact, but it’s more likely that the person on the receiving end will be ignorant of the law and respond with some boilerplate message about protecting the company’s clients’ right to free speech. So, you’ll need to take him to school. Respond with an email patterned after this one (including links):
You seem to believe your client’s defamatory material is protected free speech, but you are mistaken.
ACCORDING TO NPR’S "ON THE MEDIA": "The Media Law Resource Center, which tracks these cases, reports that there’s been over $16 million in [libel] judgments against bloggers."
ACCORDING TO ATTORNEY SEAN EGAN, OF LAWFIRM BATES, WELLS AND BRAITHWAITE: "The law of defamation prohibits defamatory statements being made and defendants may include the original author, a person publishing or editing the statement. Libel is making defamatory statements in writing. In principle therefore whoever hosts a webpage will be liable for any defamatory statement and will be considered to have published the statement."
[Host company name] is the publisher of the defamatory and libelous statements being made by your client on [his/her] site, and your company became complicit in the libel from the moment your company was made aware of the offending material and did not act to remove it or have it removed.
[If you found a paragraph prohibiting defamation, libel or other illegal activity in the host’s ToU/AUP, include the following paragraph as well:]
[Furthermore, I am advised that if you refuse to enforce your [ToA/AUP] in this instance, given all the documentation of that fact, you are establishing a precedent which any of your other clients may use to prevent you from enforcing said [ToU/AUP] in the event any of those clients violate your terms or policies. Selective enforcement is typically deemed no enforcement at all by the courts.]
Please provide your legal counsel’s full name, address, phone number, fax and email so I will know where to direct a Cease and Desist letter.
– [your name]
– [your contact info]
In the great majority of cases this second contact will spur the host company to action, if for no other reason than the fact that they must pay their legal counsel his or her usual hourly rate just to read your Cease and Desist letter and reply to it—even if the reply is nothing more than a legal-ese version of, “Get lost, we’re not doing jack.” Allowing a C&D letter to get through to their attorney also puts the attorney on notice that the company is potentially in legal trouble, and in publicly-held companies this sets a chain of notification requirements in motion: senior management must be notified immediately, followed by board members and shareholders if the matter isn’t resolved quickly.
It’s a whole lot cheaper and easier for the host company’s Abuse department to send a notice to their client advising him or her of the ToU/AUP violation and asking the client to remove the offending material on pain of having his or her site shut down with no refund of hosting fees. It also keeps the Abuse department manager from getting chewed out by the higher-ups.
The Cease And Desist Letter
If the second contact doesn’t work, your next step is to obtain a Cease and Desist (C&D) letter from an attorney and send it to the host company’s lawyer. If you Google “internet defamation” you should be able to find plenty of attorneys who specialize in these matters, and the letter should only cost you around US$100. While that’s a considerable chunk of change, it may just be worth it if the libel is hurting your sales, your standing as an author, your reputation among your peers or your reputation within the publishing industry.
Many communities and colleges with a law school sponsor low-cost legal clinics, so those are other avenues to try if you feel the libel is very serious but you can’t afford to hire an attorney at regular rates. Contact your local city hall, community center or universities to inquire about available low-cost legal clinics.
A Third Act Plot Twist For U.S.-Based Hosting Companies
Here’s where things get a little more interesting for defamation victims dealing with U.S.-based hosting companies. Here, in addition to charges of defamation, you can charge misappropriation of your name, likeness or trade name for profit, intentional interference with economic relations, and more. This sample C&D letter from the Chilling Effects website includes several charges. Your C&D letter should include as many charges as can reasonably be applied, per the opinion of the attorney preparing the letter.
A Common U.S. Defense Tactic: The Digital Millenium Copyright Act
Attorneys for U.S.-based software companies, internet service providers, hosting companies and similar are used to summarily rejecting any defamation claims levied against their clients’ end-users on the basis that their client is protected by the Digital Millenium Copyright Act; Google it if you want to know the particulars of that piece of legislation. In a nutshell, it’s intended to protect those providers from the illegal actions of people who use their software or services. In most cases it’s a more or less bulletproof defense. Does this mean our hero (you) is ruined? Not necessarily.
If the plaintiff can show that the provider has access to edit, block or delete its clients’ content, and has previously done so for any reason, the provider will have a hard time proving it does not act as the publisher of its clients’ content. Nevertheless, this can be tough to prove and therefore more likely to result in a legal battle than a speedy, out-of-court resolution.
Misappropriation: The Charge Most Likely To Get Fast Results In The U.S.
A charge of misappropriation of a person’s name, likeness or trade name for profit isn’t so easily dodged, and violation of this U.S. law is readily apparent to anyone viewing the pages with the defamatory material. If the page with defamatory material also contains advertising, or links to buy products being offered for sale by the site, host, blog author, etc., then the page content qualifies as content being used for a commercial (money-making) purpose. See this blog post from Internet Law Attorney Erik Syverson, and this one from Internet Defamation Attorney Adrianos Facchetti for more information, and specifics on how the same concept can be applied to defamatory online reviews.
How I Prevailed
In my situation, the defamer’s hosting company is based in the U.S. I put the company on notice with a first email as suggested in this article, which was answered with the expected ‘freedom of speech’ boilerplate. I followed up with the suggested second email, in which I reiterated the defamation charge and also added the bit about the risks of selective enforcement of the company’s ToS/AUP. I was truly prepared to go the full distance to clear my name and protect my reputation, and I made that fact very clear.
I can’t say whether it was the defamation schooling, the selective enforcement schooling, or the request for their legal counsel’s contact information that finally got the company to take action, but within 36 hours one of the offending posts was deleted and the other was marked as ‘deleted or locked’. A ‘locked’ post on the site is still visible to registered site members, but the site’s registered membership is a low number so I’m not terribly concerned about it. What mattered to me was having the post removed from public view and Google search results on searches of my name, site names, etc.
What About Retaliation?
The sort of person who would attempt to maliciously defame another is not the sort of person to graciously accept censorship. You may find that in winning the first battle, you’ve touched off a war in which the defamer takes to spreading his or her damaging lies about you on other sites.
No worries! So long as 1) the site carries advertising, or 2) the site, hosting company or corporate owner of the site is refusing to enforce its own ToU/AUP, or 3) the hosting company or corporate owner of the site is based in the U.S., U.K., or any other country with libel laws, I know how to get defamatory material removed.
And now, so do you!