defamation-flyerPete Kusdel was walking his dog through his neighborhood one morning when he saw papers strewn all over one of the streets—it looked like a recycling truck had lost its load!  Mad as heck and ready to call the local garbage company, he soon realized that each piece of paper had a picture of his neighbor, Sally McFly, on it. Pete picked up one of the pieces of paper and was shocked by what he read: “Sally McFly, 4001 Polka Drive. You’re no Christian! Leave my husband alone!” He picked up another piece of paper and it was exactly the same. Pete thought to himself, “Man, I can’t wait for my wife to share more details on the neighborhood gossip. This is the biggest scandal in years!” Sure enough, rumors began spreading that Cynthia Senhan made the flyers because she thought Sally was sleeping with her husband. Now, Sally is furious because the rumor is false. Does she have a good defamation claim against Cynthia?

Defamation Primer. 

We’ve written a number of articles on defamation over the years. Basically, defamation involves a false statement of fact about a person that is published to a third party and tends to injure the person’s reputation. Assuming Sally is telling the truth, it’s pretty obvious that Cynthia’s fliers are defamatory.

But does Sally really have a good lawsuit?  Maybe. The law divides defamatory statements into two groups: (1) statements that are defamatory per se; and (2) statements that are defamatory per quod. Defamatory per se statements are typically statements that unambiguously charge someone with committing a crime, being dishonest, engaging in fraud, rascality or general depravity.  All other statements are defamatory per quod.  Some courts have recognized that statements claiming a person engaged in an extramarital affair are defamatory per se.

What’s the effect of a defamatory per se statement?  The law presumes a plaintiff, such as Sally, suffered loss of reputation damages without proof of actual injury. If the defamatory statement is not per se, the plaintiff must present proof that the statement caused a loss of reputation, and how those damages are calculated, to recover.

Are Cynthia’s fliers protected “free speech” communications?  Highly doubtful. We’ve  written about free speech and defamation on a couple of occasions, but it’s worth revisiting.  If Sally sues Cynthia, the Texas Citizens Participation Act probably won’t protect her fliers because they were not a matter of public concern—that is, until Cynthia decided to make it known to the public. Had Sally been a public official, it might be a different story.

Tilting the Scales in Your Favor.

Remember the Golden Rule: if you don’t have something nice to say about someone, don’t say it. But if that doesn’t stop you, (we’ve talked about this before) you better have evidence to back up your statement if you’re going to accuse someone of engaging in reprehensible conduct. Otherwise, it’s probably best to not make the statement, especially in today’s age where everything posted online is forever memorialized. If you’re sued for defamation, one of the first things you should do is contact your homeowner’s insurance company because you probably have coverage for those statements.

Internet DefamationArriving at his warehouse last week Knott Faire, owner of Faire Carpet Cleaning, discovered yet another complaining critique posted on WELP: “Lots of hype, a mediocre cleaning and a hassle at the end. Don’t get tied up with Knott!” In over 75 previous reviews only 3 were slightly negative. Since the “hype” complaint, another dozen scathing complaints were logged. Believing that the negative reviews are from a competitor, not his customers, Knott called his trusty lawyer Icahn Ficksit for help. Icahn issued WELP a subpoena demanding production of identifying information and ISP (Internet Service Provider) addresses for the dozen offenders. Can Ficksit successfully subpoena the documents? What should Knott Faire do about his on-line reputation?

Ficksit may well not get the documents he wants. In Texas, probably not. Texas courts require a defamation plaintiff to submit sufficient evidence of a prima facie case on each essential element of the claim (see Cahill and Dendrite) to subpoena the documents sought. Just saying the postings are tortious or illegal is not enough. Texas businesses seeking personal details about website users must lay out actual facts to support the subpoena. For example, if the reviewer was a customer and the posted review was based on personal experience, defamation is not likely. If the statement is false and the reviewer was never a customer, then the review is not an opinion and may well be based on a false, defamatory statement.

Internet Crisis Control for Knott Faire?

Faire probably should focus more carefully on fixing his internet reputation. How can Knott Faire best get this done?

Be Proactive.  “Nip it in the bud.” Release your side of negative information first, by putting your most favorable spin on the facts. If it is reasonable, it will be believed.

Be Upfront.  Consider contacting and offering to meet with the online poster if the negative comments have already been posted. Be conciliatory.

Apologize if Necessary.  Consider ‘fessing up to your mistakes. A quick apology is less painful and less costly than years of litigation, and is likely to put you in a better light rather than appearing to be clueless and defiant.

Negotiate to Get the Post Down.  Consider the cost to get it down. Words are forgotten. Even newsprint fades. The permanence of the web creates a major branding challenge.

Own Your SEO (Search Engine Optimization).  Consider creating your own content and drive the bad stuff down in search engine rankings. Only your worst enemy will look for dirt on you past the first Google search page. See Reputation Repair below.

And, know that there are those who believe that any company that sues over online reviews someone makes is clearly a company not worth doing business with, since they might, potentially, sue you over any bad review you write online about them.

Tilting the Scales in Your Favor.

Our advice on this subject of almost two years ago is the same today. Consider undertaking internet reputation repair. Managing your internet reputation is not a new idea. In fact, Gray Reed regularly works with some of our clients on crisis communications and dealing with damaging or misinformation on the internet. There are also internet service providers and websites like Reputation Changer, Reputation Management Consultants, Integrity Defenders,and Online Reputation Management that promote their ability to clear negative search results arising from an internet search engine. And by the way, consumer-review websites—whether Yelp, Angie’s List, Google + Local, Yahoo Local Listings, or—are shielded from liability for defamation claims stemming from user comments under the Communications Decency Act of 1996.

Prior Tilting Articles.

Also check out: Defamation Law: The Basics