Wednesday, June 03, 2020

So You've Been Sued for Defamation. Now What?

By Hayley Cutler


I recently worked on a case in which I was defending a client who was sued because of a business review he posted to an online blog. This article outlines things I learned defending this case that may not be common knowledge and that may assist those sued for defamation or their attorneys. The tips below are largely directed toward online posts, as that is the most likely source of defamatory statements in today’s world. These tips are also intended to be a starting point only. Special consideration should be given to the characteristics of each case.

 

First Questions to Ask

When you are first served with a defamation lawsuit, ask yourself the following questions:


1. Has it been more than a year since you made your allegedly defamatory post?

In Texas, the statute of limitation for a defamation cause of action is one year. The statute begins to run on the date the defamatory post or statement is first made. If you are properly served with a petition, ensure that the petition was filed within one year of the time you made your post. If the lawsuit was filed more than a year after you made your post, the lawsuit should be dismissed.

2. Did the person suing you make a demand for you to retract, clarify or correct your statement?

Texas has a set of laws called the Defamation Mitigation Act (Texas Civil Practice and Remedies Code § 73.051 et seq.) that requires would-be plaintiffs to timely and sufficiently demand a statement’s correction, clarification, or retraction as a prerequisite to filing a defamation lawsuit. The demand must be made within the limitations period (1 year from the day the statement was made). The demand must also meet certain requirements:

(A) written and signed by the would-be plaintiff;
(B) served on the publisher of the statement;
(C) describe the allegedly defamatory statement with particularity; and
(D) allege the defamatory meaning of the statement.

 

Next Steps

What do you do if you receive a written demand that meets the above requirements?

Within 30 days of receiving the demand, you should make your retraction. Retractions should be published in the same manner as the original defamatory statement and designed to reach the same audience as the original statement. It must also

  1. acknowledge that the prior statement is erroneous;
  2. be an allegation that the allegedly defamatory meaning of the original statement arises from other than the language of the publication and that you, the publisher, disclaim an intent to communicate that meaning or to assert its truth;
  3. state that the original statement is attributed to another person, whom you identify, and disclaim an intent to assert the truth of the statement; or
  4. state that the retraction is a publication of the would-be plaintiff’s statement of the facts, set forth in the would-be plaintiff’s demand, or a fair summary of the statement, exclusive of any defamatory portion.

 

What happens if the would-be plaintiff does not make a sufficient demand?

Should the case go all the way to trial, the plaintiff will not be able to seek exemplary damages. This drastically lowers the amount of damages that you may be liable for. On the other hand, if the would-be plaintiff sends a timely demand and you timely comply, the would-be plaintiff is not barred from bringing suit, nor does it make the plaintiff’s case moot. Instead, the fact that the plaintiff made the demand and you timely retracted or removed the statement may be considered as mitigation of damages.

 

Should You Remove the Post?

The above is the legal process by which most defamation cases should arise. In reality, what often happens is the would-be plaintiff, before doing research or retaining counsel to tell him the above information, reaches out to the would-be defendant and informally asks that the statement be removed from the website. Should you decide that you want to comply with the would-be plaintiff’s request, it can be tricky to navigate the post-removal process.

So what should you do?

First, see if there is a way that you can edit or remove your own post. Some websites allow posters to edit their own content indefinitely or for a certain amount of time. If you are unable to remove your own post, reach out to the administrator or moderator of the website on which you posted your statement. If the post is relatively new, some websites will edit or remove the post without much fuss. The difficulty arises when the post has been on the website for a long time or if the websites have strict rules regarding removing the posts. For example, some websites will not remove a post if third parties have commented on the post.

If the website administrator refuses to remove your post, the next step is to reach out to the website’s operator and request that the post be removed. Some websites will include in their Terms of Use or Privacy Policies instructions for contacting the operator and requesting removal. Website operators, however, are not terribly responsive. In the event you are unable to remove the post and the website refuses to remove the post voluntarily, the only remaining option I have found is to obtain a court order that declares your post was defamatory and requires you to have the post removed or to have the post’s URL removed from Google and other search engines’ search indices. Once you have this court order,  the website should remove the post in compliance with the court’s order. Further, search engines such as Google have a policy to remove defamatory posts from their search indices when presented with a court order.

How does this work? Say you posted a nasty review about John Doe Business, Inc. on a website that includes crowd-sourced reviews (think Yelp). Before your post’s URL is removed from Google’s search index, it would appear as a result if anyone searched Google for “John,” “Doe,” “John Doe,” “John Doe Business,” or “John Doe Business, Inc.” thereby making your post visible to potentially millions of viewers every day. If your post’s URL is removed from Google’s search index, it will no longer appear when someone enters the above search terms. Thus, your post will only be viewable to those who happen to visit the website on which you posted. Having your post removed from the major search engine indices is an incredibly effective way to minimize the number of people who view your post and could go a long way towards mitigating Plaintiff’s damages.

To summarize, if you receive a removal/recant demand from someone or are even sued for defamation, do not despair. Ask yourself:

  1. is there a way I can avoid a lawsuit by removing the post myself or by contacting the website on which I posted?;
  2. did the person suing me send me a removal or recant demand prior to filing suit?; and
  3. did the person suing me file their lawsuit against me within one year from the day that I made the post?

If you examine these questions, you may very well be able to save yourself (or your client) the time and expense of litigating a case through trial.

 

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