You discovered an anonymous blog or website posting which defames your company. You want it removed from the website, but the website refuses to delete the posting and you do not know the poster’s identity.
How do you accomplish the removal of the defamatory language? And how do you recover for the damages your company incurred because of the defamation? Do you sue the anonymous poster, the website or both?
Unfortunately, there is no quick fix to this problem. First, the Communications Decency Act provides that “[n]o 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.”
Courts throughout the country have consistently held that websites are immune from suit for this type of defamation. This immunity also includes immunity under related state laws. In a recent Florida case, the court strongly condemned a complaint-posting website and its business practices (e.g., refusing to take down a posting, even when its author asks for it to be removed), but found that it had no choice but to hold that the website was immune from suit by the defamed company.
Since your company probably cannot sue the offending website, how does the company discover the anonymous poster’s identity and sue him? If the offending website is not willing to provide such information voluntarily, the only way is to file suit against John Doe, then proceed with expedited third-party discovery to the offending website for identifying information, e.g., the poster’s name, email address, and/or IP address. In these cases, the courts balanced the right to speak anonymously under the First Amendment with the right to protect oneself from defamation.
The strict standards currently in place are difficult for defamation plaintiffs to meet. The courts have found for the anonymous posters and protected their identities because the plaintiffs are not able to prove prima facie cases of defamation. There is currently no Georgia appellate caselaw regarding standards for obtaining an anonymous website poster’s identity.
Thus, until the Communications Decency Act is amended, your company most likely will not be able to sue the offending website and will have to meet the strict standards of current caselaw before obtaining the identity of the anonymous poster.
Before bringing suit against John Doe, your company should assess the feasibility and probable outcome of such a suit by considering whether it can establish a prima facie case of defamation. Should your company discover the identity of John Doe and hold him liable for defamation, hopefully your company will not only recover damages incurred because of the defamation, but also have the defamatory posting finally removed from the offending website.
Kenneth B. Hodges III, a partner in the law firm of Ashe Rafuse & Hill LLP, writes a periodic column on business law for The Albany Herald. He is the former district attorney for the Dougherty Judicial Circuit. He can be contacted at kenhodges@AsheRafuse.com.