In The News

Anonymous Online Defamation: Fighting Back to Protect Yourself & Your Business



With the explosion of social media, businesses and individuals are becoming daily victims of anonymous online defamation. With tools like Twitter and Topix, now everyone has a megaphone to say whatever they want to the widest possible audience. Many say this is freedom of speech at its best. But as with anything, this freedom comes at a high price.

Putting bloggers on equal footing with traditional journalism has many upsides, but now we are beginning to see the downsides, as well. Online reviews of restaurants and movies, for example, are often helpful. Generally, those reviews state opinions rather than facts, such as: “This movie was terrible,” or “This restaurant has the best food.” Opinion cannot constitute defamation. But websites today also allow patients to review doctors, students to review teachers, and customers to review everything from iPads to car repair service. When these reviews include untrue facts, they may constitute defamation. For example, a review expressing a diner’s opinion about how food tastes is mere opinion and does not constitute defamation, but a review claiming that a restaurant had a health department rating of 65 when the actual rating was 97 is an untrue fact that likely could serve as the basis of a defamation claim.

Sometimes the negative comments are minor and the best advice is to brush them off. But other times the comments are serious and deserve a stronger response, such as when they indicate you committed scandalous or criminal conduct, that you are untrustworthy, or that you have committed malpractice. These comments can damage your reputation and harm you economically if they steer business away from you. When that happens, especially if it happens more than once from the same person, you may have grounds to assert a claim of business interference, and not just defamation.

One of the biggest challenges with the Web 2.0 is the fact that most online reviews and comments are made anonymously. If that’s the case, how can you protect yourself? How can you even find out the identity of the poster?

Fortunately, victims are not without recourse. Most people think that they can say whatever they want online and that no one will ever know who said it. This is incorrect. There are ways to find out the identity of online posters, but you need to act quickly since Internet service providers (ISPs) often destroy records of online activity after 180 days.

If you find that you are the victim of disparaging comments made online, you won’t get very far suing the website that hosts the comments (known as user generated comment or “UGC”). Hosting websites are immune from liability related to UGC under Section 230 of the Communications Decency Act. But you can have your attorney send a cease & desist letter to the website demanding that the comments be removed. Sometimes websites comply; other times their terms & conditions do not allow them to comply without a court order.

When you want to find the identity of the anonymous poster, and not just have the comments removed, you can also file a “John Doe” lawsuit against unknown defendants, empowering you to subpoena the host website for the IP address of the person posting the comments. From there, you can determine the ISP. Because the Cable Communications Policy Act of 1984 prohibits ISPs from disclosing personally identifying information about Internet users to non-governmental entities without a court order, the next step is to obtain a court order allowing you to subpoena the ISP for the identity of the poster. Recently, a court in Nashville refused to allow an anonymous poster to hide his identity, and allowed the victim to move forward with its subpoena of the ISP.

Finally, responding to anonymous online defamation often requires a multi-faceted approach. Recently, one of my business clients found several comments online that accused its employee of criminal and scandalous conduct. Given the context, the client needed legal advice on not just the social media issues, above, but also with employment law issues. If defamatory comments are made that threaten to damage your reputation and your business, don’t just sit back and take it. Instead, consider your options in fighting back.
© Stephen J. Zralek 2011

10th Annual Fellowship Breakfast Honoring Dr. Martin Luther King, Jr.

On Monday, January 17, 2011, over 450 people joined Bone McAllester Norton at our tenth annual Fellowship Breakfast to celebrate the memory and legacy of Dr. Martin Luther King, Jr.


 The celebration was held at the Hutton Hotel in Nashville and featured the Fisk Jubilee Singers as our entertainment.


Bone McAllester Norton's annual Fellowship Breakfast is the firm's most honored tradition.  We founded Bone McAllester Norton in 2002 as a new firm, to put into practice a set of core principles and values to which we are unfailingly committed. We adopted the phrase “Law – Life – Passion” as a shorthand way of expressing those principles. One value about which the firm is passionate is diversity.  We believe that we have created a law firm that reflects the diversity of our clients – people of different idealistic, socioeconomic, educational, ethnic, racial and religious backgrounds - and which reflects the core commitments firm founders Charles W. Bone and Stacey A. Garrett made on the day the firm was created.  Rather than simply closing our offices on the MLK holiday, we decided to honor Dr. King’s memory by inviting a few family members, friends and clients to join us for breakfast.  We spend this time together to reflect upon Dr. King, his legacy, and the contributions he made to our world and to each of us personally.


This year, we were honored to have the two time Grammy-Nominated Fisk Jubilee Singers as our entertainment. In 1871, the original Jubilee Singers introduced "slave songs" to the world. Today, the Fisk Jubilee Singers continue the tradition of singing the Negro spiritual around the world sharing this rich culture while preserving this unique music.


Following the Fisk Jubilee Singers, we opened the floor and encouraged comments by anyone who wished to talk about Dr. King's legacy.  Previous Fellowship Breakfasts have featured prominent civil rights champions Dr. E. Rip Patton, Diane Nash, John Seigenthaler and Mike Cody.


We invite you to view:
About the Fisk Jubilee Singers
Video of the Life and Legacy of Dr. King
Slideshow of our 2011 Fellowship Breakfast


 

Paz Haynes Participates in Nationally Recognized Law Day Program

To commemorate Law Day in 2010, the Nashville Bar Association (NBA) produced a program commemorating the 50th Anniversary of the Nashville Student Movement's lunch counter Sit-Ins.


  These Sit-Ins were a seminal event in the advancement of the Nashville community, and the civil rights movement nationwide.  The NBA's presentation honored the "Counsel for the Children" -- the local lawyers who defended the student demonstrators during the Sit-Ins -- with a mock trial involving several distinguished members of the Nashville bench and bar.

Paz Haynes was one of the producers of the program, and served as moderator for a panel discussion after the mock trial.  Two of the "Counsel for the Children," retired Tennessee Supreme Court justice Adolpho A. Birch and trial lawyer George E. ("Citizen") Barrett, shared their experiences and reflections on the Sit-Ins, the trials, and the lawyers and judges involved in these historic events.  The event was filmed to be shared and enjoyed by generations of lawyers.  The "Counsel for the Children" program recently received national acclaim when the NBA received a 2010 Law Day Outstanding Activity Award from the American Bar Association.

Bone McAllester Norton was a sponsor of the "Counsel for the Children" program.  "I was honored to participate in such a memorable and important program for the Nashville Bar,” said Paz. “Through its sponsorship of 'Counsel for the Children', our Firm has ensured that the program will be preserved and appreciated for years to come."


 

Will Cheek Quoted on Whiskey Distilleries in Tennessee

In 2010, Legislature passed a law allowing 43 Tennessee counties to manufacture whiskey.  This law was passed in hopes that new distilleries will work in conjunction with the established brands to create a draw for tourists to Tennessee.


Will Cheek told Westview, "It was seen as being a really strong barrier to starting up, particularly for a microdistillery where you really don't want to spend that much money and you don't have that many people,"


"Any changes to the state liquor laws are going to be very difficult," he said.


"What is happening now really lays the foundation for a whiskey trail that is similar to the bourbon trail that Kentucky has," Cheek said. "The bourbon trail is fairly successful, but what the bourbon trail lacks is an international brand. We know Maker's Mark and we know Wild Turkey, but those aren't big brands in Europe or China or Japan.”


"We've got Jack Daniel's and that might be the best-known brand of spirits worldwide. We have a real marquee that draws people, and if we could have a number of micro-distilleries that are available for touring and marketed properly, it could be really neat."


This story was picked up and repeated in papers like The Leaf Chronicle, The Daily Herald and other papers by the Associated Press.


 

"Anonymous Online Defamation: Fighting Back to Protect Yourself and Your Business"

With the explosion of social media, businesses and individuals are becoming daily victims of anonymous online defamation.

With tools like Twitter and Topix, now everyone has a megaphone to say whatever they want to the widest possible audience.  Many say this is freedom of speech at its best.  But as with anything, this freedom comes at a high price.

Putting bloggers on equal footing with traditional journalism has many upsides, but now we are beginning to see the downsides, as well. Online reviews of restaurants and movies, for example, are often helpful. Generally, those reviews state opinions rather than facts, such as: “This movie was terrible,” or “This restaurant has the best food.”  Opinion cannot constitute defamation. But websites today also allow patients to review doctors, students to review teachers, and customers to review everything from iPads to car repair service. When these reviews include untrue facts, they may constitute defamation.  For example, a review expressing a diner’s opinion about how food tastes is mere opinion and does not constitute defamation, but a review claiming that a restaurant had a health department rating of 65 when the actual rating was 97 is an untrue fact that likely could serve as the basis of a defamation claim.

Sometimes the negative comments are minor and the best advice is to brush them off.  But other times the comments are serious and deserve a stronger response, such as when they indicate you committed scandalous or criminal conduct, that you are untrustworthy, or that you have committed malpractice. These comments can damage your reputation and harm you economically if they steer business away from you.  When that happens, especially if it happens more than once from the same person, you may have grounds to assert a claim of business interference, and not just defamation.

One of the biggest challenges with the Web 2.0 is the fact that most online reviews and comments are made anonymously.  If that’s the case, how can you protect yourself?  How can you even find out the identity of the poster?

Fortunately, victims are not without recourse.  Most people think that they can say whatever they want online and that no one will ever know who said it.  This is incorrect.  There are ways to find out the identity of online posters, but you need to act quickly since Internet service providers (ISPs) often destroy records of online activity after 180 days.

If you find that you are the victim of disparaging comments made online, you won’t get very far suing the website that hosts the comments (known as user generated comment or “UGC”).  Hosting websites are immune from liability related to UGC under Section 230 of the Communications Decency Act.  But you can have your attorney send a cease and desist letter to the website demanding that the comments be removed.  Sometimes websites comply; other times their terms and conditions do not allow them to comply without a court order.

When you want to find the identity of the anonymous poster, and not just have the comments removed, you can also file a “John Doe” lawsuit against unknown defendants, empowering you to subpoena the host website for the IP address of the person posting the comments.  From there, you can determine the ISP.  Because the Cable Communications Policy Act of 1984 prohibits ISPs from disclosing personally identifying information about Internet users to non-governmental entities without a court order, the next step is to obtain a court order allowing you to subpoena the ISP for the identity of the poster.  Recently, a court in Nashville refused to allow an anonymous poster to hide his identity, and allowed the victim to move forward with its subpoena of the ISP.

Finally, responding to anonymous online defamation often requires a multi-faceted approach. Recently, one of my business clients found several comments online that accused its employee of criminal and scandalous conduct. Given the context, the client needed legal advice on not just the social media issues, above, but also with employment law issues.  If defamatory comments are made that threaten to damage your reputation and your business, don’t just sit back and take it.  Instead, consider your options in fighting back.


 

Marty Cook Goes “Back to School”

Marty Cook and Bone McAllester Norton have partnered with Nannie Berry Elementary School in Hendersonville, Tennessee and our client “COMPASS” (Community Outreach Making Partners At Sumner Schools) for several years.


 COMPASS’ emphasis is to develop partnerships between the business community and Sumner County Public Schools to improve student success.


Marty served as President of the COMPASS Board of Directors and has led Bone McAllester Norton’s involvement at Nannie Berry Elementary School in many different ways. Recently, Bone McAllester Norton participated in the “School Back Pack” program which provided food for less fortunate students at Nannie Berry Elementary over the holidays.  Bone McAllester Norton has also led COMPASS’ school supply drive at the start of each school year and provided tutors in classrooms. We are pleased to have been involved in several incentive programs for the students at Nannie Berry, where prizes such as bikes and buckets of gifts were presented to students who exhibited excellent character. Bone McAllester Norton provides and prepares academic certificates at the end of the school year acknowledging students for their accomplishments over the past year. Marty has been influential in encouraging other businesses in the Hendersonville area to partner in these endeavors.


 

Marty Cook Goes “Back to School”

Marty Cook and Bone McAllester Norton have partnered with Nannie Berry Elementary School in Hendersonville, Tennessee and our client “COMPASS” (Community Outreach Making Partners At Sumner Schools) for several years.

 COMPASS’ emphasis is to develop partnerships between the business community and Sumner County Public Schools to improve student success.

Marty served as President of the COMPASS Board of Directors and has led Bone McAllester Norton’s involvement at Nannie Berry Elementary School in many different ways. Recently, Bone McAllester Norton participated in the “School Back Pack” program which provided food for less fortunate students at Nannie Berry Elementary over the holidays.  Bone McAllester Norton has also led COMPASS’ school supply drive at the start of each school year and provided tutors in classrooms. We are pleased to have been involved in several incentive programs for the students at Nannie Berry, where prizes such as bikes and buckets of gifts were presented to students who exhibited excellent character. Bone McAllester Norton provides and prepares academic certificates at the end of the school year acknowledging students for their accomplishments over the past year. Marty has been influential in encouraging other businesses in the Hendersonville area to partner in these endeavors.

 

David Anthony’s Blog Featured in the Nashville Business Journal

David Anthony and his legal blog, Creditor’s Rights 101, were featured in the December 24, 2010 edition of the Nashville Business Journal.


 The article, titled “Standing Out on the Web,” discussed the ways companies are using the internet and, in particular, blogs to promote their services and skills.


Mr. Anthony’s blog provides readers with a discussion and explanation of news and trends related to the collection of debt.


Click to read the Nashville Business Journal’s article, “Standing Out on the Web.”  (subscription required)


 

David Anthony’s Blog Featured in the Nashville Business Journal

David Anthony and his legal blog, Creditor’s Rights 101, were featured in the December 24, 2010 edition of the Nashville Business Journal.

 The article, titled “Standing Out on the Web,” discussed the ways companies are using the internet and, in particular, blogs to promote their services and skills.

Mr. Anthony’s blog provides readers with a discussion and explanation of news and trends related to the collection of debt.

Click to read the Nashville Business Journal’s article, “Standing Out on the Web.”  (subscription required)

 

Relaunching TheExpressive Blog to Focus on the Entrepreneurial & Community Spirit of Nashville

What a great Sunday!  Big white flakes of snow are falling outside my window, the Christmas tree is lit and our baby is napping upstairs.  I mention the baby napping for two reasons: first, it's amazing having a baby in my life; and second, it gives my wife and me a few minutes off.

In these few minutes before our baby wakes up, I'm excited to tell you that TheExpressive is re-launching.  Instead of focusing on the law, this blog will highlight the incredible entrepreneurial and community spirit we have in Nashville.

People hear "Nashville" and they think Grand Old Opry, HCA, Vanderbilt/Fisk/Belmont or the Titans.  (Well, they think of the Titans when they're playing well, which isn't lately.)  But that talent is in so many other places, too.  It's in restaurants like Burger Up, the coffee beans of Drew's Brews, the books by Alice Randall, and the businesses like Emma and Griffin Technology.  That spirit is also in our non-profits like Conexion Americas and Community Food Advocates; in our art galleries like Zeitgeist; and our drop-in clinics like United Neighborhood Health Services.

A year and a half a go, I started something called WaterCooler with a friend, Renata Soto.  We meet once a month to hear from young entrepreneurs.  We've had a lot of fun, and met some inspiring people: Chris Ferrell of SouthComm spoke on the changing media landscape; Nashville Captial Network's Sid Chambless spoke on the availability of venture capital funds; Laura Creekmore spoke on social media; Linus Hall gave us a tour of Yazoo Brewery; and Becca Stevens introduced us to two women who graduated from her program at Magdalene House after surviving on the streets as prostitutes.

Tomorrow, we're headed to Olive & Sinclair to tour Nashville's own chocolate factory and hear the story of founder/chocolatier Scott Witherow.  Olive & Sinclair is a great example of all of the above: people with a vision who take a risk, enjoy great success, and benefit their communities in many different ways.  Their stories are inspiring to me and I hope you find them inspiring, too.

Stories like these are the ones I plan to highlight in this blog.  I hope to feature a different entrepreneur or community leader each week.  Hopefully, by finding what inspired and motivated them, we can learn something to apply to our own jobs, neighborhoods and community groups.

I hear the baby -- she's awake and I've had my break.  Back to my most important job and favorite pastime... fatherhood.