Imagine this unfortunate scenario: You log onto your Facebook account and you notice a friend request from someone you don’t recognize. You click their account and are horrified to discover that this account user has published a series of defamatory posts about you. You immediately reach out to Facebook and request that they intervene to assist in removing the defamatory posts. Facebook declines to remove the account or the posts. Unfortunately, this scenario occurs far too often on social media platforms like Facebook, Instagram, Twitter, and TikTok.
If you are being attacked on a social media site, you may wonder what you can do to make the harassment stop. You may even be tempted to file a lawsuit against Facebook or a search engine that indexes the posts in your search results. But because of Section 230 of the Communications Decency Act, you probably won’t be successful suing Facebook or any other social media platform for comments published by its users.
What is Section 230 of the Communications Decency Act?
The Communications Decency Act is a statute that regulates online material. Section 230 specifically insulates Internet Service Providers (ISPs) from liability for content published by third-party users on the ISP’s website. ISPs encompass a wide variety of web platforms including search engines, social media sites, forums sites, and more. Generally, this means that social media platforms are protected from being sued civilly for publications made by site users.
If I Can’t Sue Facebook, What Can I Do to Stop Online Harassment?
If you are being defamed online, you have legal options. Even though you probably can’t sue Facebook or Google for the actions of a third-party user, you can sue the person who published the defamatory content. You may also have other legal claims besides defamation. Often, online defamation also gives rise to privacy torts like publication of private facts, or business torts like interference with a business expectancy. Online defamation can also violate intellectual property rights. An attorney can help you evaluate your potential causes of action.
What If I Don’t Know the Identity of the Person Defaming Me?
People who engage in online harassment and internet defamation often do so under a pseudonym or fake user account profile. Internet users wrongly assume that identifying information is protected from discovery if they don’t list identifying information in their account, but this is not true. A person harassing others online through a pseudonym or fake account can be unmasked through the filing of a John Doe lawsuit.
A John Doe lawsuit is a lawsuit filed against the anonymous user account. By subpoenaing Facebook and the accompanying IP addresses associated with a defamer’s Facebook logins and logouts, an anonymous person can be traced. Once the anonymous defamer is traced and identified, they can be named in the lawsuit, and you can proceed with securing a court order mandating removal of the defamatory posts from Facebook.
Other strategies to remove harmful or defamatory posts from Facebook without a Court Order
Generally, a social media site like Facebook will not get involved in removing defamatory content unless you secure a court order declaring it to be defamatory; however, you may be able to remove harmful content utilizing other creative options in lieu of filing a lawsuit
Community Standards
Every social media platform has terms of use or community standards that site users must abide by to utilize the platform. Although every social media platform has slightly different community guidelines, sites generally have prohibitions against dangerous and hateful content. If you can identify a specific community guideline that a damaging post violates, Facebook may remove the post. For example, Facebook will remove posts that contain hate speech, violate privacy rights, or incite violence. A full list of Facebook’s community standards can be found here.
DMCA Takedowns
Another creative content removal option for removing social media posts involves utilizing the DMCA takedown notice. The Digital Millennium Copyright Act (“DMCA”) is an intellectual property statute that protects copyrighted works. A DMCA request can be utilized as a takedown tool to secure the removal of images or videos that were posted in violation of intellectual property rights. While you do not necessarily own the copyright to all photos containing your image, you do own the copyright for images that you created. For example, if you take a selfie, you are the copyright holder of that image. This means that anyone posting your selfie without your permission is infringing on your copyright rights. A DMCA takedown notice puts a person on notice that he or she is infringing on your copyright rights, and if he or she doesn’t remove the infringing work they may be sued. When a defamatory post also includes the publication of a stolen image, a DMCA request may help you remove the post. While DMCA requests cover videos or photos, and do not cover defamatory text, the submission of a DMCA request can sometimes result in removal of the accompanying text.
The Importance of Preserving Online Defamation as Evidence
If you intend on filing a lawsuit to stop online harassment, it is essential that you document all defamatory posts. If someone defames you and they alter the content, you will lose access to the evidence you need to support your legal claims. Taking screenshots of defamatory publications is paramount to support a defamation lawsuit.
If you are the victim of online defamation and you want to remove the damaging internet content, you have removal options. While you probably can’t sue the underlying website where the defamatory content is posted, you can sue the person who published the content. An internet defamation attorney such as myself can help you weigh your removal options. Feel free to reach me via email at ala@kjk.com.