Online Defamation – Troll Hunting to Protect Your Business

29 May 2015

In today's world, trolls seemed to have upped roots and left the bridges of fable and have found their way onto the internet, which seems to pervade almost all aspects of modern life and business. It is hard to find a week of media coverage that does not to refer to some form of abuse received online by a public figure or celebrity. False statements posted about your business, whether they are a result of the internet troll or a have more sinister raison d'etre, can and often will have a damaging effect on your business. Regardless of who makes a false comment or where it is posted, your legal remedies remain the same and do offer a degree of protection and recompense.

There are a number of actions that can be taken by a business that finds itself in the above position. False internet comments are likely to fall under the law of Defamation, which is the act of damaging someone's reputation (that someone can be a business) by the use of either spoken (slander) or written words (libel). Therefore if the identity of the person making the comments is known a claim can be brought against them.

It is important to act quickly as the Defamation Act 2013 provides a one year limitation date on claims of this nature.  This means that you only have one year from the date that the statement was posted to bring a claim.

There are a number of common concerns that clients have when deciding whether to bring a defamation action regarding online comments, which are:

– We don't know the identity of the person making the statement (e.g. they post under a pseudonym or avatar);

– The person making the statement has no money and so what will I recover;

– How do I get these comments removed and will suing the person achieve this?

If a person (or business) making the false statement has no money or assets and the statements have caused significant financial loss to your business, there are other avenues that can be pursued to recover damages and offset those losses. Those liable for defamation include not just the author of the comments but the editor and publisher too. It can therefore be the case that there might be other liable parties, who are financially worth pursuing in the author's place.

It can be difficult to tell a person's identity when posting online, especially when they do so via a forum under a registered name. Bringing legal proceedings against a person of unknown identity is extremely difficult. There is however, a legal tool that can be used in this scenario called a 'Norwich Pharmacal Order'.  This allows a Claimant to ask the Court to Order a third party (in this case possibly the site owner) to disclose the identity of the person that appears to have caused you harm, if known. It is worth noting that these types of request have been used successfully against major websites such as Facebook and can be an important tool in combating defamatory comments.

It is also important to ensure the removal of the injurious comment.  Under European legislation, an Internet Service Provider (ISP) that is made aware of potential defamatory comments posted on its server can be held liable as a publisher. This will often mean that once lawyers have informed an ISP of a potential claim, the ISP will usually take a 'safety first' approach and remove the comments unilaterally in order to avoid this potential liability. This can therefore be a strong tool for getting potential defamatory comments removed quickly, circumventing any need to engage the author in protracted legal arguments.

If you are having issues with defamatory comments posted online or are involved in hosting websites and are concerned about your liability regarding the above, please do not hesitate to contact the commercial litigation team, who will be happy to help you.