Trashed Online: Should You Sue?

If you have ever Googled yourself, or your client, and been horrified to see the first page of the results is a review website where you are being trashed you may have wondered what to do. If this hasn't happened yet- count your blessings and hope for the best, but prepare for the worst. Sometimes, the review becomes a personal attack that could seriously harm your business reputation.

You have three choices. You can sue, you can hire someone to help “manage” your online reputation, or take a middle ground and ask nicely for the offending material to be removed.

WHY NOT TO SUE

1. Figuring out who to sue -

Most review websites are protected from defamation and related claims through Section 230 of the Communications Decency Act.

Many critics post anonymously. Therefore, you have to subpoena the website or ISP just to try and figure out the identity of your critic. Most states follow the rule in Cahill v. Doe which held the person seeking to unmask the poster must articulate the basic elements of a defamation claim before the court will allow it.

2. Truth is a defense

Even assuming the claim is not true, if there is a lawsuit, the person who made the comment will be allowed to ask you all kinds of questions related to the substance of the comment that you will have answer under oath.

3. The cost

It’s expensive. You could spend $30,000 just to figure out the identity of the online critic. Then, you have to really start spending money to sue that person. I often have to tell clients you can pay me $100,000 and I will get you a piece of paper that says the other side has to pay you hundreds of thousands of dollars. But, if they don’t have the money, I can’t force it out of them. Will the person sitting in the dark in his boxers making up defamatory comments about you online at 12:30 at night with the handle darknightreviewer@yahoo.com have any money to pay?

4. The Streisand Effect.

Basically, a lawsuit, if interesting enough, will only create more attention to the damaging post. Yes, the post is infuriating, but you might be able to get it removed through other means. If you file suit, it may be the talk of the town when the suit is filed. Then, discussed again when there is a hearing on whether the identity of the poster should be revealed. Then again when the trial starts. Then again when the judgment is rendered. Then again when the issue is up on appeal. Without the suit, it would not have garnered much attention at all.

WHEN TO SUE

1. A repeat offender or a competitor and you need to fight back.

2. The story is already in the public and you need to publicly defend yourself.

3. A victory will be seen as vindication.

4. You need to set the standard so others do not try and do the same thing.

5. The poster has a lot of money so it may be worth it.

More Monday about when to hire an online reputation consultant and when not to.