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Strategies for Dealing with Defamation or Trade LibelStrategies for Dealing with Defamation or Trade Libel

Ryan Kaiser

September 21, 2011

2 Min Read
Strategies for Dealing with Defamation or Trade Libel

“How could anyone not like him?” 

Jerry’s mother on the sitcom Seinfeld couldn’t imagine someone disliking her son, let alone defaming him.  Such is the world in which we live.  The Internet compounds the issue by providing a worldwide soapbox where anonymity emboldens the meek.   But how do we know when a mean jab or a less-than-glowing product review crosses the line and becomes something worse, like defamation or trade libel?

Governed by state laws (each with its own nuance), defamation is defined generally as publication of a defamatory statement which the publisher knew or should have known was false.  A statement is “defamatory” if it tends to injure a person’s or business’ reputation, or exposes them to public contempt.  We could fill a law library with the finer points of defamation, but such is beyond the scope of this post.  The general idea is that defamation is a false statement that causes reputational harm.  

So what do you do if you’ve been defamed?   Newton’s third law states that for every action, there is an equal and opposite reaction.  A victim may feel compelled to respond with an equally defamatory statement.  Don’t do it! The defamed can easily become the defamer, facing liability themselves.

 On the Internet, it’s tempting to confront the publisher.  This too should be avoided in most cases.  Engaging the publisher often results in more attention on the original statement than it otherwise would have received (known as the “Streisand effect”). 

The better strategy is to remain calm and objective.  First, evaluate the statement carefully.  Is it true?  Truth is generally a defense to defamation.   If the statement is untrue, take an honest assessment of whether it is actually causing harm.  Some types of statement are so innately harmful that they are defamatory per se.  These are:

  • Attacks that are injurious to business or profession;

  • Allegations that a person is unchaste;

  • Allegations of a loathsome disease; and

  • Allegations of criminal activity.

If a statement is defamatory per se, or otherwise causing tangible harm, contact an attorney.  There are often non-confrontational ways to deal with online defamation.  For example, “reputation management” services can help “de-optimize” defamatory content…in essence, burying the cyber-dirt.  Litigation can also be used as a last resort.  If the case is strong enough, a Temporary Restraining Order can serve to immediately (though temporarily) remove the defamatory comments.

Defamation is no fun.  If it happens to you or your business, it’s important to remember that you have options.  It’s critical that you keep your cool and objectively assess the nature of the statement, and whether it’s causing actual harm.  Your attorney can help evaluate the situation and prescribe a plan of action.   

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