chain of causation

a series of events in the life of a lawyer

Cyber-SLAPP… or trying to be reasonable?

Recently (according to Overlawyered) two blogs, Confessions of a Pediatric Practice Consultant and Chilmark Research were sent letters requesting the removal of offensive material, the disclosure of the email/IP/other identifying information of the poster, and records preservation of  such material. The initial reaction of both blogs was to ridicule the letter and the attorney who drafted it – after all by the time the letter had been received by both blogs the information was most likely widely replicated by Google’s caching feature and possibly repeated worldwide by other individuals. In fact, many experts advise that the last thing one would do in order to keep information private is to post it on the Internet at all as there is no recall feature once information leaks out. As to the identifying information, there is a strong presumption at least in the Internet community that the First Amendment protects anonymous posters and that their identifying information should only be disclosed if at all pursuant to a legal order. The mere attempt to resolve this by letter has invoked outcry from the blogs’ respective communities and has increased attention towards the remark in another example of the Streisand effect.
So, to play devil’s advocate, what is someone supposed to do when they find defamatory information on the Internet?

  • Ignore it?
  • Sue, and as part of the discovery process, get subpoenas for identifying information as well as a preliminary injunction?
  • Send a letter such as the ones quoted above?

Ignoring It

This has the obvious benefit of not invoking the problems produced by the Streisand effect. However, ignoring it may not be a viable option. For starters, it is hard to keep clients happy when you tell them that ignoring it may be the best option when they came to you explicitly to get the information removed. Second, if the material really is defamatory, it is causing harm for as long as it remains available. Especially for reputation-reliant people and businesses, the longer misinformation exists, the greater the potential for that misconception to settle in others minds as the truth and stay that way despite reliable information to the contrary. As the saying goes, it takes a long time to build trust but only a second to destroy it. In such a situation, a plaintiff would want relief as soon as possible. A cost-conscious plaintiff would prefer to resolve the matter without resorting to a lawsuit, a subsequent temporary restraining order (TRO) or preliminary/permanent injunction, and their attendant costs.

Lawsuit

Lawsuits are nontrivial undertakings, cost time and money to prosecute, are rife with jurisdictional challenges as to both the ISP for the alleged defamer and the ISP of the blog itself nevermind the blog’s owner. However, there are few options as powerful as the temporary restraining order and the preliminary injunction for forcing material offline – at least until a full adjudication on the merits can be had. The drawback though is that this near-nuclear option can only be exercised in the most egregious of circumstances as it is cost-prohibitive and the difficulty in locating the alleged defamer to recover costs, even with the information provided by subpoena.

Letter

This brings us to the middle ground which was so vehemently denounced as censorship and an attack on the First Amendment. A letter does not carry the force of law nor the power of contempt of court behind it. On the otherhand, it does communicate to the individuals in the best position to act the stance of the putative plaintiff with respect to that information. It is less expensive to send a letter than it is to file and prosecute a lawsuit. It may also be more effective in achieving the desired result as people tend to take letters better than they do legal process.
The failure of the above letters to achieve their intended results stems from what I believe is a failure to communicate. Although lawyers are trained to be extremely precise and talented with their words, the printed word sometimes leaves much to be desired compared to a simple phone conversation. A letter, often when drafted by a lawyer, can have a harsh tone that may not be intended, but because of their training, is part of how lawyers write. The other half is the theatre of client expectations. Clients expect their lawyers to go to bat and play hardball with their opponents – after all, they want to see value for the high fees that are being paid. Lawyers, as a result of client expectations and the adversarial system, sometimes join in this elaborate theatre by being more aggressive, even when it does not achieve the client’s goals in the most effective way.

The Solution

Letters are probably still the most cost-effective solution to removing allegedly defamatory material on the Internet. It allows both sides to evaluate whether they want to go to bat for their respective clients and fight it out in court or whether there is a more amiable resolution available. For plaintiffs this allows them to think about whether it is necessary to incur the costs of litigation should the blog decline to cooperate. For blogs, this allows them to evaluate whether to use their resources to defend against a potential suit or whether alternative options such as providing a forum to respond to the allegedly defamatory material will satisfy the plaintiff. However, the net result is a more efficient resolution for all parties given that both communicate effectively with each other and don’t fly off the handle as the first response.
Is sending a letter a SLAPP? To be fair, the line between a SLAPP and a genuinely harmed defamed plaintiff can be a rather thin one. Sending a letter, in good faith, and communicating effectively with the other side should both avoid the Streisand effect and provide information to evaluate options if negotiation does not come to an acceptable conclusion.

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Written by Vincent Kan

March 18, 2009 at 10:00 am

Posted in Random

Tagged with , , ,

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