The Legal Option

“Litigation is the pursuit of practical ends, not a game of chess.”

Felix Frankfurter


Litigation signals the end of the line in reputational recovery. When other informal avenues of resolving problems close, the legal option often remains available. Admittedly not the most attractive course of action for dispute resolution, unique considerations present themselves when dealing with reputation. The heart of the matter is words, not deeds; freedom of speech, while not unfettered, is a profound human right. The court process can be costly, lengthy and unpredictable; the results are available for public consumption. Judicial activity may fan the flames, keeping your name and the accusations current in the media.

Yet, sometimes, filing a lawsuit remains the only effective route to refute the allegations and repair the damage to your business or personal reputation. The end goal of instituting legal proceedings is to secure a favorable settlement or a judgment. A court order, public retraction and apology, and other collateral proof of the underlying falsehoods then can be used to disprove similar allegations made by other sources.  But the strident commitment to the truth—and revealing it in the glare of judiciary scrutiny—can be enough of a compelling reason to file a defamation lawsuit. Regardless of the outcome, you have the opportunity to expose published lies and lay down a marker using real facts.

“Who Are You, John Doe?”

Anonymous speech saturates the Internet. Merits about its value aside, hiding behind a screen name is the easiest way to spread false and misleading information. If someone remains anonymous, by definition, he cannot be identified, making it impossible to hold him accountable. Whether an attack is orchestrated or is sloppily recirculated as fact with the passage of time, anonymous defamatory allegations can not only ruin reputation, but leave the victim feeling helpless. How can you react when you don’t even know the source’s identity?

Litigation can be wielded as a sword in an attempt to pierce the shield of anonymity. While the desire to remain anonymous is a well-established aspect of the freedom of speech in the United States, it is not absolute. Issuing a subpoena to third-party websites and Internet service providers to identify an anonymous online attacker can be a useful discovery tool in the reputational recovery effort. Resistance to the subpoena should be expected, and further court action is the norm. While the standards vary by jurisdiction, it is imperative to present the court with evidence that the information is false and defamatory when seeking to compel a third party to provide identifying information about a poster.

“Location, Location, Location”

Once the decision to file a defamation claim is made, the first practical question is where to file. The oft-repeated real estate mantra “location, location, location” immediately comes to mind. Where you file governs critical aspects of your case, such as (1) the deadline to bring a lawsuit, (2) what facts you must prove, (3) how you must establish your evidence and (4) what types of damages you may recover—that is, whether you are limited to money or may obtain an injunction to prohibit publication. And while the evolution from paper to digital communications hasn’t changed the defamation playing field that much, where you might sue someone for defamation has expanded dramatically—and globally.

Back in the day when the reference to “The Gray Lady” was recognized and the removal of newspaper ink stains was a daily annoyance, a libel lawsuit would be filed in the place the publication was written, printed, circulated and read. The physical connection between the publication and proper venue was regional because of commercial and technological limitations. The Internet changed that simplistic structure. Today, the question of where to file a defamation lawsuit covers a multitude of possibilities. You might be able to sue for defamation in a place where the speaker’s only contact with the location is the availability of the electronic posting itself. For digital publishers, authors and bloggers, the reach of potential exposure is staggering. Some critics label forum selection as “libel tourism,” but electronic media’s impact—as any target of false accusations knows too well—recognizes no borders.

Apart from the practical consequences of global information-sharing, a lawyer owes a duty to the client to secure the most favorable result possible. Based on the publication and surrounding facts, this analysis includes identifying the most beneficial substantive and procedural law in the most hospitable forum. In the United States, defamation claims are largely governed by state law, subject to the restrictions imposed by the free speech and press provisions of the First Amendment to the Constitution. A defamation plaintiff faces a challenging environment, since federal courts concluded decades ago that the collateral damage to one person’s reputation is more acceptable than restricting speech for everyone. The fundamental elements and defenses are similar across state lines, although certain factors and burdens of proof may differ, depending on whether the claimant is a public or private figure. Each state also has its own statute of limitations, which must be consulted to determine how quickly you must file a lawsuit. Click here to view the statutes of limitations by state.

Foreign defamation laws, judicial procedures and jurisdictional principles vary widely, including across the European Union. A brief review of special considerations in cross-border defamation cases can be found here. In a number of nations, draconian criminal sanctions still remain, and the extent of freedom of speech is fraught with uncertainty. Given these harsh realities, whether a favorable court order can be enforced in other countries is not always certain. Some foreign judgments and factual findings will be recognized in U.S. courts or, at a minimum, may be accepted by a website’s hosting provider when presented with a demand to remove false and defamatory allegations. Regardless, when fighting to reclaim your good name, a foreign judgment may be better than nothing at all.