QUARMBY. ROUND 6.

FINAL 4/1/2008 10:44:21 PM

PROTECTION FROM ONLINE LIBEL:

A DISCUSSION AND COMPARISON OF
THE LEGAL AND EXTRAJUDICIAL
RECOURSES AVAILABLE TO
INDIVIDUAL AND CORPORATE
PLAINTIFFS

BEN QUARMBY*

INTRODUCTION
Whether by sordid personal allegations or economically harmful
revelations, a minority of Internet users now rely on the relative
anonymity offered by the Internet to attack the reputation of individuals
and business entities. Targets of such attacks need to be aware of their web
profile and understand the potential consequences of unchecked online
libel. This Article will set out the legal and extrajudicial measures available
to those seeking to repair the damage to their reputation and protect
themselves against further attacks, and will argue that libel victims may
often meet with greater success by forgoing the court system and relying
exclusively on alternative approaches.1

1. Individuals and Business Entities as Targets of Online Libel

With the advent of blogs and discussion groups, Internet users now
have access to a multitude of forums in which to post written material,
often anonymously. A significant minority of users, however, see this

* Mr. Quarmby is a 2004 graduate of Duke Law School. He is currently clerking for
the Honorable Garrett E. Brown, Jr., Chief Judge for the District of New Jersey, and will be
joining the firm of Quinn Emanuel Urquhart Oliver & Hedges LLP in the Fall of 2008. The
views expressed herein do not reflect those of the court.
1. This Article is intended as a roadmap to a potential plaintiff assessing his or her
options in countering online attack speech, and will not delve into the public policy interests
behind allowing online attack speech.

275
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276 NEW ENGLAND LAW REVIEW [Vol. 42:275

online anonymity and the no-censorship policies adopted by many forums

as an opportunity to unduly attack the reputations of individuals and
business entities.2 Two recent cases help illustrate the scope of the problem.
In Does I and II v. Ciolli, two female students from the Yale Law
School sued the administrator of AutoAdmit.com (AutoAdmit), a hugely
popular Internet discussion forum for issues related to law schools.3
AutoAdmit, like many other online discussion forums, allowed user
comments to be posted online anonymously and ensured that such
comments were accessible to any visitor to the website. Comments posted
on the website could also be retrieved by search engines such as Google,
and were thus readily accessible to anyone running specific Internet
searches.4
While the AutoAdmit website was no doubt initially intended as a
valuable resource for prospective law students, it was quickly hijacked by a
small number of posters for other purposes entirely. Indeed, starting in
2005, a minority of AutoAdmit users began discussion threads apparently
aimed solely at defaming the aforementioned Yale students. The content of
the posted comments included professed desires to rape the plaintiffs,
allegations that they carried sexually transmitted diseases, and suggestions
that at least one of the plaintiffs had obtained admission to the prestigious
Yale Law school in spite of low test scores by engaging in an affair with
the married dean of admissions. All told, the allegedly defamatory posts
numbered in the hundreds.
Upon discovery of this online activity, the plaintiffs requested that the
websites administrator remove the offending posts. That request was
ignored.5 Calls to Google demanding that its search engine filter out the

2. See Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999)
(With the rise of the Internet has come the ability to commit certain tortious acts, such as
defamation, copyright infringement, and trademark infringement, entirely on-line. . . .
Parties who have been injured by these acts are likely to find themselves chasing the
tortfeasor from Internet Service Provider (ISP) to ISP, with little or no hope of actually
discovering the identity of the tortfeasor.) (citation omitted).
3. Complaint paras. 6-7, Does I & II v. Ciolli, No. 07-909 (D. Conn. June 8, 2007)
[hereinafter AutoAdmit Complaint], available at http://www.citmedialaw.org/
sites/citmedialaw.org/files/AutoAdmitComplaint.pdf.
The administrators of the website estimated at the time that between 800,000 and
1,000,000 visitors per month frequented the website. See id. para. 16; see also Ellen
Nakashima, Harsh Words Die Hard on the Web: Law Students Feel Lasting Effects of
Anonymous Attacks, WASH. POST, Mar. 7, 2007, at A1, available at http://
www.washingtonpost.com/wpdyn/content/article/2007/03/06/AR2007030602705.html.
4. See Nakashima, supra note 3 (To the targets dismay, the comments bubble up
through the Internet into the public domain via Googles powerful search engine.).
5. See Posting of Amir Efrati to WSJ.com Law Blog, http://blogs.wsj.com/
QUARMBY. FINAL 4/1/2008 10:44:21 PM

2008] PROTECTION FROM ONLINE LIBEL 277

comments at issue to prevent their wider distribution were similarly

denied.6 Having failed to obtain relief through extrajudicial means,
plaintiffs turned to the courts. There they alleged, inter alia, that the career
prospects of one of the plaintiffs had suffered a significant blow as a result
of the AutoAdmit posts, since potential employers were bound to encounter
the AutoAdmit character attacks while performing routine background
checks.7
The types of online attacks endured by the AutoAdmit plaintiffs are
not the sole concern of individualsmany business entities find themselves
targeted too. In Dendrite International, Inc. v. John Doe No. 3,8 for
example, an anonymous poster was taken to court for suggesting on an
Internet bulletin board that purported changes in Dendrites revenue
recognition accounting practices reflected an attempt to mask the
companys lack of competitiveness.9 The wrongdoing suggested by the
poster was allegedly intended to allow Dendrites management to boost the
companys value in anticipation of an imminent takeover.10 Dendrite
submitted to the court that the information contained in the post was
unfounded and had caused significant financial harm, not only to its
business reputation, but also to its stock price.11
The existence and widespread distribution of online attacks on
individuals and business entities is beyond dispute.12 Some, however,

law/2007/06/12/students-file-suit-against-AutoAdmit-director-others/ (June 12, 2007, 11:42

AM).
6. Nakashima, supra note 3. Google allegedly cited its policy that the Web sites
administrator must remove the material to clear out the search results. Id.; see also
Google.com, How can I prevent content from being indexed or remove content from
Google's index?, http://www.google.com/support/webmasters/bin/answer.py?answer=35301
&topic=8459 (setting forth Googles recommendations for shielding online content from its
search engine) (last visited Mar. 26, 2008).
7. See AutoAdmit Complaint, supra note 3, at paras. 29-33.
8. 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
9. Id. at 763.
10. See id.
11. Id. at 769-70.
12. See Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in
Cyberspace, 49 DUKE L.J. 855, 863 (2000) (Hyperbole and exaggeration are common, and
venting is at least as common as careful and considered argumentation. The fact that many
Internet speakers employ online pseudonyms tends to heighten this sense that anything
goes, and some commentators have likened cyberspace to a frontier society free from the
conventions and constraints that limit discourse in the real world.) (internal citations
omitted); see also Posting of Dave Hoffman to Concurring Opinions,
http://www.concurringopinions.com/archives/2006/10/xoxohth_civilit_1.html (Oct. 30,
2006) (discussing AutoAdmits sister site and commenting that [a]mong many legal
scholars and administrators, there is a shared impression that discussion at XO is overrun by
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278 NEW ENGLAND LAW REVIEW [Vol. 42:275

question whether such attacks really have the kind of impact alleged by the
plaintiffs in the AutoAdmit and Dendrite cases.

2. The Impact of Online Libel on Individuals and Business

Entities
Indeed, one of the arguments set forth by critics of suits for online
libel is that the comments or posts in question simply do not have sufficient
real-world consequences to justify taking measures to curtail such speech.
Many of the posts at issue in the AutoAdmit case, for example, are wildly
and intentionally offensive, and most importantly, are found on a website
whose content and presentation suggest that it should not be taken too
seriously. No clear-thinking individual, the argument goes, would rely on
information from such a source.13
Applying this reasoning to the AutoAdmit plaintiffs, no reasonable
law firm performing an online background check of the law students would
give any weight to the comments found on AutoAdmit in assessing whether
to employ them. Similarly, one would argue that no sophisticated business
entity considering a take-over of Dendrite Corporation would put much
faith in the typo-ridden rant of an anonymous poster on an online message
board.
This line of argument, however, ignores the fact that even reasonable
and sophisticated employers and investors, among others, do take into
consideration information found on such boards, however dubious the
source. In the case of individuals targeted by online character attacks, for
example, the emergence of a negative Internet profile in connection with
their name is very likely to impact their careers and job prospects. Indeed,
[e]mployers, including law firms, frequently do Google searches
as part of due diligence checks on prospective employees.
According to a December survey by the Ponemon Institute, a
privacy research organization, roughly half of U.S. hiring
officials use the Internet in vetting job applications. About one-
third of the searches yielded content used to deny a job, the

sexist, racist, anti-semitic, and just plain foolish talk.); Posting of Brian Leiter to Leiter
Report: A Philosophy Blog, http://leiterreports.typepad.com/blog/2005/03/penn
_law_studen.html (Mar. 11, 2005, 6:12 PM) (documenting incidences of racist and anti-
Semitic speech on AutoAdmit.com).
13. See, e.g., Posting of Erik Schmidt to Mac Law Students,
http://maclawstudents.com/blog/not-mac-specific/AutoAdmit-online-defamation (June 20,
2007) (Does any potential employer really take anything written on AutoAdmit seriously? .
. . Theres a huge amount of random lip-flapping going on, and I truly wonder about the
sanity of any potential employer that would take into account comments found on
AutoAdmit when vetting a potential employee.).
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2008] PROTECTION FROM ONLINE LIBEL 279

survey said. 14
In a competitive field, with multiple highly qualified candidates vying
for a limited number of positions, even a barely coherent and unfounded
attack on a candidates character may be enough to rule out that
candidate.15
One should also beware of underestimating the impact of libelous
speech on the financial prospects of business entities. The apparent lack of
cohesion or structure of the attacks posted online should not mask the fact
that these opinions will have a significant impact on a targeted business.
Indeed, online discussion boards focused on financial and business matters
are increasingly being relied upon as sources of business information.16
Discussion boards are not without merit, however, as one commentator
explained:
This is not to say that the speech of anonymous John Does is as
important a source of financial information as, say, the Wall
Street Journal or CNBC. The typical John Doe is not a financial
journalist, and the boards are often cluttered with pointless
ramblings. Yet, to the extent that participants in online
discussions learn more information about a corporation through a
message board, it is still a valuable, albeit flawed, source of

14. Nakashima, supra note 3.

15. See, e.g., Nakashima, supra note 3 (The legal hiring market is very competitive.
What could tip the balance is the appearance that a candidate is a lightning rod for
controversy, said Mark Rasch, a Washington lawyer and consultant who specializes in
Internet issues.); Anna Badkhen, Web Can Ruin Reputation With a Stroke of a Key, S.F.
CHRON., May 6, 2007, at A1, available at 2007 WLNR 8579266 (One in 4 hiring managers
use online search engines like Google to screen job candidates . . . . Because it is often hard
to tell fiction from fact, employers sometimes unwittingly allow falsehoods posted on the
Internet to inform their decisions about prospective employees . . . .).
The corollary, of course, is that employers such as law firms may also suffer the
consequences of a bad online profile when it comes to recruiting. See T. Colpan & L.R.
Skibell, Managing Risk to Reputation: The Challenge of the Internet for Legal Recruiting,
2005 STAN. TECH. L. REV. 2, 28 (2005) ([A] law firm's reputation can greatly affect its
success in recruiting the law students it wants to fill the firm's classes of associates. It is just
as important for laws [sic] firms to protect their reputation with law students as it is for them
to protect their reputation with clients.).
16. See, e.g., Market Thoughts Discussion Forum,
http://www.marketthoughts.com/forum/index.php (last visited Mar. 26, 2008); Motley Fool
Community Discussion Boards, http://boards.fool.com/?source=ifltnvpnv0000001 (last
visited Mar. 26, 2008); Raging Bull, http://ragingbull.quote.com/cgi-
bin/static.cgi/a=index.txt&d=mainpages (last visited Mar. 26, 2008); Superior Investor,
http://www.superiorinvestor.net/ (last visited Mar. 26, 2008); Trader-Talk Online,
http://www.wwfn.com/investor-chat.html (last visited Mar. 26, 2008). Value Forum,
http://www.valueforum.com/ (last visited Mar. 26, 2008);
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280 NEW ENGLAND LAW REVIEW [Vol. 42:275

specialized financial information.17

As reliance on these boards increases, the credibility of online posters
becomes an important issue. This presents its own set of problems, insofar
as it is often difficult to evaluate the reliability of the posted information.18
For a business entity to rely on the ability of investors and other market
players to separate the wheat from the chaff in navigating online financial
discussion boardsdistinguishing valid financial information from
unfounded attacks aimed at harming a targeted entityis an unnecessary
gamble.19
The consequences of unchecked libelous comments on individuals
and business entities are all the more important since the widespread
distribution of said comments over the Internet confers upon them a far
greater potential impact than if they were aired on television or even
printed in a national newspaper. Indeed, as the Supreme Court explained in
Reno v. ACLU, the Internet
provides relatively unlimited, low-cost capacity for
communication of all kinds. . . . Through the use of chat rooms,
any person . . . can become a town crier with a voice that
resonates farther than it could from any soapbox. Through the

17. Lidsky, supra note 12, at 900 (internal citations omitted).

18. See Nancy Toross, Double-Click on This: Keeping Pace with On-Line Market
Manipulation, 32 LOY. L.A. L. REV. 1399, 1417 (1999) (describing efforts by investors to
manipulate the market by ensuring widespread dissemination of falsified financial
information on chat rooms, Web-based discussion forums, newsgroups, and other news
forums sponsored by on-line service providers).
19. This concern is not shared by all commentators. See, e.g., Lidsky, supra note 12, at
899 (Nevertheless, the boards are not useless as a source of information. If one lurks
around long enough on a message board, observing the ongoing, rambunctious, and often
disjointed dialogue over a period of time, one can become adept at judging the credibility of
individual participants based on the quality and tone of a participant's remarks and the
interaction between that participant and others.) (internal citations omitted); see also
Jennifer OBrien, Note, Putting a Face to a (Screen) Name: The First Amendment
Implications of Compelling ISPs to Reveal the Identities of Anonymous Internet Speakers in
Online Defamation Cases, 70 FORDHAM L. REV. 2745, 2775 (2002) ([A]n allegedly
defamatory communication must be read and construed in the sense in which the readers to
whom it is addressed would ordinarily understand it. . . . In light of these principles, it
seems unrealistic to assume that a plaintiff will suffer the same damage to his reputation on
a common ISP bulletin board as he would in a more traditional publication that is subject to
a stringent level of editorial control, as most readers will realize that many of the postings
on the board are not meant to be taken seriously.) (quoting Wash. Post Co. v. Chaloner,
250 U.S. 290, 293 (1919)). The claim that regular visitors to online financial information
websites will be able to discern between worthless rants and worthwhile information seems
to this author to be of little comfort to companies whose performance is unfairly thrashed on
these boards.
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2008] PROTECTION FROM ONLINE LIBEL 281

use of Web pages, mail exploders, and newsgroups, the same

individual can become a pamphleteer. 20
The conclusion is obvious: if your reputation is being harmed online,
you must take action, particularly since credence will be given to attacks on
your reputation, and the widespread dissemination of such attacks over the
Internet will ensure that they have an impact on your personal or business
prospects. There are two ways to fight backthrough the courts, or by
extrajudicial means. After a brief overview of the law of libel, each
approach will be discussed in turn below.

3. Online LibelAn Overview of the Legal Landscape

The tort of libel can be broadly defined as:
(a) A [written] false and defamatory statement concerning
another;

(b) An unprivileged publication to a third party;

(c) Fault amounting at least to negligence on the part of the

publisher; and

(d) Either actionability of the statement irrespective of special

harm or the existence of special harm caused by the
publication.21

The tort therefore appears fully applicable to online speech. A target

of online libel, however, would do well to keep in mind certain
constitutional and statutory limitations that may narrow (but not rule out)
its legal options.

20. 521 U.S. 844, 870 (1997); see also Jay Krasovec, Comment, Cyberspace: The Final
Frontier, for Regulation?, 31 AKRON L. REV. 101, 124 (1997) ([T]he Internet provides for
the greatest and quickest dissemination of information ever imagined . . . .); Melissa
Troiano, Comment, The New Journalism? Why Traditional Defamation Laws Should Apply
to Internet Blogs, 55 AM. U. L. REV. 1447, 1466 (2006) (If someone posts a defamatory
statement somewhere on the Internet, that statement can be instantly read by others, copied
and pasted somewhere else on the Internet, and then read by thousands more.).
21. ROBERT D. SACK, SACK ON DEFAMATION: LIBEL, SLANDER, AND RELATED PROBLEMS
2.1 (3d. ed. 2007) (quoting RESTATEMENT (SECOND) OF TORTS 558 (1977)) (describing
elements of defamation); see id. 2.3 (Libel is written . . . defamation.). But see id.
2.1.4 (Simple statements about the law of libel . . . should . . . be approached with caution.
With the overlay of constitutional interpretation on the common law, things are rarely
simple.).
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282 NEW ENGLAND LAW REVIEW [Vol. 42:275

a. Statutory LimitationSection 230 of the Communications

and Decency Act
Section 230 of the Communications and Decency Act (CDA), states
that [n]o provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another
information content provider.22 Moreover, the Act ensures that:
[n]o provider or user of an interactive computer service shall be
held liable on account of

(A) any action voluntarily taken in good faith to restrict access to

or availability of material that the provider or user considers to
be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such
material is constitutionally protected; or

(B) any action taken to enable or make available to information

content providers or others the technical means to restrict access
to material described in paragraph (1).23
In effect, Section 230 shields Internet Service Providers (ISPs) and
administrators of online discussion boards from liability for publishing or
refusing to remove libelous material created by a third party, while
allowing them to remove such material in their discretion.24 Section 230
thus likely prevents the AutoAdmit plaintiffs from suing the administrator
of the website,25 and bars any suit by Dendrite against Yahoo, the host of

22. 47 U.S.C. 230(c)(1) (2000).

23. Id. 230(c)(2).
24. Section 230 of the CDA has been consistently applied in such a way. See, e.g., Fair
Hous. Council v. Roommates.com, LLC, 489 F.3d 921, 925 (9th Cir. 2007) (holding
defendant, an interactive computer service, immune so long as it merely publishes
information provided by its members); Universal Commcn. Sys. v. Lycos, Inc., 478 F.3d
413, 419 (1st Cir. 2007) (interpreting broadly Section 230 immunity to bar suit against
operator of an Internet messaging board); Zeran v. Am. Online, Inc., 129 F.3d 327, 330-31
(4th Cir. 1997) (holding that Section 230 immunized computer service providers from
liability for information that originated with third parties); Blumenthal v. Drudge, 992 F.
Supp. 44, 52-53 (D.D.C. 1998) (finding ISP immune from suit for defamatory material
posted by third party); Doe v. Am. Online, Inc., 783 So. 2d 1010, 1018 (Fla. 2001) (holding
a tort action against ISP barred under Section 230); see also Troiano, supra note 20, at 1457
(Following the enactment of the CDA, ISPs and other Internet users and providers have
received almost complete immunity from suit for third-party defamatory postings.).
25. Mr. Ciolli has since been dropped from the case. See Posting of Amir Efrati,
AutoAdmit Lawsuit Update: Ciolli Dropped to WSJ.com Law Blog,
http://blogs.wsj.com/law/2007/11/09/autoadmit-lawsuit-update-ciolli-dropped/ (Nov. 9,
2007, 11:50 AM).
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2008] PROTECTION FROM ONLINE LIBEL 283

the discussion board.26

b. First Amendment Limitations on Libel

A plaintiffs ability to sue for online libel is also significantly
constrained by the First Amendment as interpreted by the courts. While the
analysis of every aspect of the First Amendments impact on libel is
beyond the scope of this Article, it is necessary to address some of the
constitutional obstacles that a plaintiff is likely to have to overcome in
order to prevail in court.

i. The Private/Public Entity Distinction

Of primary importance in an online libel action is the threshold
determination of whether the plaintiff is a private or a public entity.27
Indeed, public plaintiffs may have to prove malice on the part of the
online poster to establish libelin some cases, a significant hurdle.28 Judge
Sack, describing the requirements enumerated in New York Times v.
Sullivan, explained that the determination of malice should amount to an
assessment of whether the defendant published a falsehood either knowing
it to be false or with a high degree of awareness of its probable falsity, that
is, while in fact entertaining serious doubts as to the truth of the
publication.29 Private plaintiffs, on the other hand, may (depending on

26. Provided, of course, that neither Mr. Ciolli nor Yahoo posted any of the statements
at issue themselves.
27. This is a crucial determination, as:
The entire course of a libel or slander suit is determined by whether the
plaintiff is a public official or public figure and whether plaintiff must
therefore meet the actual malice standard in order to prevail. Thus, for
example, whether the defendant will seek to discover or present at trial
evidence sufficient to establish the truth of the communication at
issuean effort which, depending on the subject matter of the
communication, can be enormousmay rest on that determination. If
actual malice is the standard, the defendant may focus instead on
more accessible proof that he or she believed the communication to be
true, a complete protection under that test.
SACK, supra note 21, 5.4.2.
28. This higher standard is justified on the grounds that a person who comes
prominently forward in any way and becomes a public or a quasi-public figure . . . invites
free expression of public opinion, including criticism, such criticism being privileged so
long as the privilege is not abused. See id. 4.4.4 (quoting Edmonds v. Delta Democrat
Publg Co., 93 So. 2d 171, 173 (Miss. 1957) (alteration in original).
29. Id. 5.5.2; N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (defining
actual malice as knowledge that [the statement] was false or with reckless disregard of
whether it was false or not.).
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284 NEW ENGLAND LAW REVIEW [Vol. 42:275

the jurisdiction) be able to establish libel with only a showing of negligence

on the posters part, or some other standard between negligence and
malice.30
While the courts have provided guidelines to be relied upon in
drawing the public/private entity distinction, they have not established any
bright line rules. The Supreme Court in Gertz v. Robert Welch, Inc., for
example, explained only that:
[the public figure] designation may rest on either of two
alternative bases. In some instances an individual may achieve
such pervasive fame or notoriety that he becomes a public figure
for all purposes and in all contexts. More commonly, an
individual voluntarily injects himself or is drawn into a particular
public controversy and thereby becomes a public figure for a
limited range of issues. In either case such persons assume
special prominence in the resolution of public questions.31
Unfortunately for potential corporate plaintiffs assessing their
litigation prospects, the Supreme Court has offered little guidance on the
issue of business entities public status.32 Some commentators have

30. Private figures suing for speech on a matter of public concern must prove falsity and
negligence (at least) on the part of the defendant in order to recover. See Dun & Bradstreet,
Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 766 (1985) (citing Gertz v. Robert Welch,
Inc., 418 U.S. 323, 347 (1974)); see also SACK, supra note 21, 6.1 (For cases of
defamation of private plaintiffs, the Supreme Court in Gertz required the states to abandon
the common-law rule of strict liability; they may adopt any standard of conduct so long as it
does not provide for liability without fault. Although the language of Gertz seems to
permit courts to determine liability simply by instructing the jury to decide whether the
defendant was at fault with respect to a defamatory falsehood, it is generally agreed,
expressly or tacitly, that no standard less than negligence will suffice.).
In addition, potential online defamation plaintiffs may have to consider whether the
speech at issue relates to a matter of public concern. Indeed, as the Supreme Court stated in
Dun & Bradstreet:
[W]e have long recognized that not all speech is of equal First
Amendment importance. It is speech on matters of public concern
that is at the heart of the First Amendments protection. As we stated
in Connick v. Myers, this special concern [for speech on public issues]
is no mystery . . . .
472 U.S. at 758-59 (citations omitted).
31. Gertz, 418 U.S. at 351; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246
n.3 (1986) (classifying lobbyists as limited purpose public figures); Time, Inc. v. Firestone,
424 U.S. 448, 453-54 (1976) (holding that being a member of the Palm Beach society does
not make one a public figure, and that a divorce proceeding is not a public controversy).
32. See SACK, supra note 21, 5.3.7 (Corporations are, in general terms, a subset of
businesses, which receive mixed treatment as public figures. The lack of clarity and
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2008] PROTECTION FROM ONLINE LIBEL 285

suggested that business entities should be deemed per se public figures,33 a

tack that some courts have already adopted.34 As a general rule, however,
courts have given business entities a mixed treatment.35

ii. The Opinion Privilege

A second important constitutional limitation on the tort of online libel
is the privilege of opinion. As explained by the Supreme Court in Gertz v.
Robert Welch, Inc.:

uniformity in application of public-figure concepts is particularly evident here.); see also

Lidsky, supra note 12, at 908 (Although this distinction is important, the Supreme Court
has given only limited guidance on how to distinguish public from private figures,
especially when the plaintiff is a corporation.); Arthur Pinto, Control and Responsibility of
Credit Rating Agencies in the United States, 54 AM. J. COMP. L. 341, 353 n.67 (Supp. 2006)
(Courts are split on whether corporations are public figures.); Sarah Mayhew Schlosser,
Note, The High Price of (Criticizing) Coffee: The Chilling Effect of the Federal Trademark
Dilution Act on Corporate Parody, 43 ARIZ. L. REV. 931, 958 (2001) (Relying on the
volitional element of public figure, some courts have deemed corporations to be public
figures in certain circumstances . . . .).
33. See, e.g., SACK, supra note 21, 5.3.7 (Decisions holding that any publicly held
corporation is a public figure for purposes of commentary about its corporate affairs are
persuasive.); Lidsky, supra note 12, at 908 (A strong argument can be made that the
typical corporate plaintiff in a John Doe libel case will be a public figure. The typical
plaintiff is a publicly held corporation listed on a national stock exchange; a publicly held
corporation by definition avails itself of the capital markets to raise funds from investors.).
34. Reliance Ins. Co. v. Barrons, 442 F. Supp. 1341, 1348 (S.D.N.Y. 1977) (We find
that plaintiff is indeed a public figure. It is a large corporation with more than a billion
dollars in assets. Nearly all of its common stock is owned . . . by . . . a publicly held
company whose shares are traded on the New York Stock Exchange.); Fotochrome, Inc. v.
N.Y. Herald Tribune, 305 N.Y.S.2d 168, 172 (N.Y. Sup. Ct. 1969) (holding that publicly
held corporation was a public figure, on the grounds that [t]here is no less interest in, nor
less of a need for information concerning, the stock market in general or the successes,
failures or manipulations of specific corporations in which thousands of people have
invested their personal fortunes, than there is in basketball, football, crime or public
health.); see Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F. Supp. 947, 955
(D.D.C. 1976) ([A] libel action brought on behalf of a corporation does not involve the
essential dignity and worth of every human being and, thus, is not at the root of any decent
system of ordered liberty. Consequently, a corporate libel action is not a basic of our
constitutional system, and need not force the first amendment to yield as far as it would in a
private libel action.); see also SACK, supra note 21, 5.3.7 (discussing disagreement
among courts regarding corporations as public figures for the purposes of proving libel).
35. SACK, supra note 21, 5.3.7. Compare Schiavone Constr. Co. v. Time, Inc., 619 F.
Supp. 684, 702-07 (D.N.J. 1985) (finding a corporation to be a public figure), and Reliance,
442 F. Supp. at 1349 (publicly traded corporation a public figure), with Natl Life Ins. Co. v.
Philips Publg, Inc., 793 F. Supp. 627, 635-39 (D. Md. 1992) (noting that a corporation is
not a public figure), and Bank of Or. v. Indep. News, Inc., 693 P.2d 35, 42-43 (Or. 1985)
(finding that neither corporation nor its president were public figures).
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286 NEW ENGLAND LAW REVIEW [Vol. 42:275

Under the First Amendment there is no such thing as a false idea.

However pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on the
competition of other ideas. But there is no constitutional value in
false statements of fact.36
The Court clarified in Milkovich v. Lorain Journal Co. that this
passage from Gertz was [not] intended to create a wholesale [libel]
exemption for anything that might be labeled opinion.37 The opinion
privilege should instead be understood to provide[] protection for
statements that cannot reasonably [be] interpreted as stating actual facts
about an individual,38 thus ensuring that public debate will not suffer for
lack of imaginative expression or the rhetorical hyperbole which has
traditionally added much to the discourse of our Nation.39
In assessing whether a statement warrants First Amendment
protection under the opinion privilege, courts will thus look to the nature
and the context of the statement. Indeed, [i]f a statement appears in a place
usually devoted to, or in a manner usually thought of as representing,
personal viewpoints, it is . . . likely to be understoodand deemed by a
courtto be nonactionable opinion.40 Furthermore, where potentially
[libelous] statements are published in a . . . setting in which the audience
may anticipate . . . [the] use of epithets, fiery rhetoric or hyperbole,
language which generally might be considered as statements of fact may
well assume the character of statements of opinion.41 Under such
circumstances, courts will be reluctant to view allegedly libelous comments
as assertions of fact, and will instead understand those to be, under
Milkovich, mere rhetorical hyperbole, vigorous epithets, and loose,
figurative language . . . protected from state libel actions.42
Since a significant share of the material posted on chat rooms and
blogs can be accurately described as exaggeration, fiery rhetoric, or
hyperbole, the opinion privilege can prove to be quite an obstacle for an
online libel plaintiff to overcome. Most posts on AutoAdmit.com, for
example, relate to the law school entrance prospects of various posters and
the relative merits of each law school, which is consistent with the
websites avowed goal. But a significant proportion of other posts,

36. 418 U.S. at 339-40.

37. 497 U.S. 1, 18 (1990) (internal quotation marks omitted).
38. Id. at 20 (quoting Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988)) (alteration in
original).
39. Id. (citing Falwell, 485 U.S. at 53-55).
40. SACK, supra note 21, 4.3.1.1.
41. Id. (quoting Gregory v. McDonnell Douglas Corp., 552 P.2d 425, 430 (Cal. 1976)).
42. Id. 4.3.3 (citing Milkovich, 497 U.S. at 20).
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2008] PROTECTION FROM ONLINE LIBEL 287

however, are only tangentially related to law schools, and in fact amount to
nothing more than gratuitous (and often racist, misogynistic and anti-
Semitic) attacks on particular individuals or schools.
An online libel plaintiff will therefore likely have to establish to the
courts satisfaction that the speech at issue in his or her case could
reasonably be interpreted as a statement of fact even though it is to be
found among a slew of wildly exaggerated, hyperbolic or offensive
messages. Of course, the difficulty of the task will depend on the nature of
the discussion board. It may, for example, be rather trickier in the
AutoAdmit case (given the wealth of clearly incoherent and intentionally
rabid content on the forum) than in the Dendrite case, which related to a
tamer financial discussion board.43
In spite of these statutory and constitutional limitations on the libel
cause of action, targets of online libelous speech need not feel helplessa
variety of legal and extrajudicial recourses remain available to them.

4. Fighting Online Libel Through the Courts

The right of a man to the protection of his own reputation from

unjustified invasion and wrongful hurt reflects no more than our
basic concept of the essential dignity and worth of every human
beinga concept at the root of any decent system of ordered
liberty.44
A plaintiff seeking to obtain relief from libelous attacks through the
courts may be able to harness the courts subpoena power to meet its
goalsor at least, ensure the viability of its claimsbut may be
disappointed by the remedies likely to be granted by the courts.

a. Suing the Anonymous Commenter

While Section 230 sets limitations on a plaintiffs ability to put forth a

43. See OBrien, supra note 19, at 2774 (Because the context of a statement impacts its
potentially defamatory import, it is necessary to view allegedly defamatory statements
published on the Internet within the broader framework on which they appear, taking into
account both the tenor of the chat room or message board in which they are posted, and the
language of the statements.); see also McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir.
1987) (adopting an approach that analyzes the alleged defamation in the context of the
article in which it appears along with the larger social context to which it relates); Joseph
H. King, Jr., Defining the Internal Context for Communications Containing Allegedly
Defamatory Headline Language, 71 U. CIN. L. REV. 863, 876 (2003) (Whether the
language of a headline conveys a defamatory meaning depends, just as it does for the
meaning of any allegedly defamatory communication, on the context in which it appears.).
44. Milkovich, 497 U.S. at 22 (quoting Rosenblatt v. Baer, 383 U.S. 75, 92 (1966)
(Stewart, J., concurring)).
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288 NEW ENGLAND LAW REVIEW [Vol. 42:275

libel claim against the host or administrator of a website, it does not

deprive a plaintiff of the right to sue. Indeed, even if the defamatory speech
was uttered by an anonymous poster, the plaintiff may sue the poster and
subpoena the administrator of the forum or the relevant ISP to obtain said
posters identifying information.45 In the AutoAdmit case, for example,
plaintiffs named as defendants Pauliewalnuts, neoprag, and
STANFORDtrollthe online monikers under which some of the posters
published the allegedly libelous comments.
The ability to subpoena the individual to reveal his or her identity
confers a lot of power upon the plaintiff. Indeed, by enforcing a subpoena
against ISPs or administrators, the court effectively allows the plaintiff to
lift the veil of anonymity behind which its attackers lurked.46 Once the
posters identities have been revealed, a plaintiffs libel suit can proceed as
any other.47
While obtaining the identity of the posters may not remove the
offending material from display on the Internet, it does likely ensure that its
authors will refrain from posting libelous comments against a given
plaintiff in the future. In addition, it guarantees that other posters will be
more reluctant to carelessly defame such a plaintiff. As pointed out by at
least one commentator in reference to the AutoAdmit case,
[t]he posters actions are pretty disgusting and unprofessional;
they violate codes of basic decency endorsed by most of society,
left, center, and right. If their identities are disclosed, they are
likely to lose their jobs (or job offers), lose friends, and be set
back for many years and many hundreds of thousands of dollars
in their careers.48
Requests for the necessary subpoenas will not, however, necessarily
be granted by the courts. Indeed, courts may express reluctance to allow
such subpoenas, on the understandable grounds that they could have an

45. In general, such identifying information includes the posters IP address.

46. See Jacqui Cheng, Testing the Limits of Forum Bashing: Two Law Students Sue
Over Personal Attacks, ARSTECHNICA,
June 18, 2007, http://arstechnica.com/news.ars/post/20070618-testing-the-limits-of-forum-
bashing-two-law-students-sue-over-personal-attacks.html (noting that the identities of the
AutoAdmit posters could be revealed through the e-mail addresses used to open their
AutoAdmit accounts).
47. It is worth noting that at least one of the defendants named in the Autoadmit case
has moved to quash the subpoena sought by plaintiffs. Posting of Amir Efrati to WSJ.com
Law Blog, http://blogs.wsj.com/law/2008/02/28/autoadmit-suit-update-defendant-ak47-
responds/ (Feb. 28, 2008, 12:58 PM).
48. Posting of Eugene Volokh to The Volokh Conspiracy, http://volokh.com/
posts/1181709221.shtml (June 13, 2007, 12:33 AM).
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2008] PROTECTION FROM ONLINE LIBEL 289

impermissible chilling effect on free speech.49 Courts have in particular

been wary of corporate plaintiffs turning to the courts to unmask their
attackers and then imposing their own extrajudicial retribution.50 An online
libel plaintiff will therefore have to prove to the court that its need to
identify the posters outweighs their right to maintain anonymity. Courts
have adopted various approaches to the issue,51 but a representative and
enduring standard is that adopted by the court in Dendrite, which held that
a trial court should:
[1] [R]equire the plaintiff to undertake efforts to notify the
anonymous posters that they are the subject of a subpoena or
application for an order of disclosure . . . .

[2] [R]equire the plaintiff to identify and set forth the exact
statements purportedly made by each anonymous poster that
plaintiff alleges constitutes actionable speech. . . .

[3] [C]arefully review[] [the complaint and all information

provided to the court] to determine whether plaintiff has set forth
a prima facie cause of action against the fictitiously-named
anonymous defendants. . . .

[4] [B]alance the defendants First Amendment right of

anonymous free speech against the strength of the prima facie
case presented and the necessity for the disclosure of the

49. See Doe v. 2themart.com Inc., 140 F. Supp. 2d 1088, 1093 (W.D. Wash. 2001) (If
Internet users could be stripped of that anonymity by a civil subpoena enforced under the
liberal rules of civil discovery, this would have a significant chilling effect on Internet
communications and thus on basic First Amendment rights.); Lidsky, supra note 12, at 889
([T]hese new libel suits may chill simply by threatening to reveal the identities of those
who speak their minds online.).
50. See infra Part 5.
51. Some courts, indeed, have shown less concern about unmasking anonymous posters.
See OBrien, supra note 19, at 2762-63 (citing Motion to Quash, Xircom, Inc. v. Doe, No.
Civ. 188724 (Cal. Super. Ct. Ventura County May 5, 1999) and Motion to Quash, Hvide v.
Does, No. 99-22831 (Fla. Cir. Ct. Sept. 30, 1999), cert. denied 770 So. 2d 1237 (Fla. Dist.
Ct. App. 2000)). Those courts granted subpoenas aimed at uncovering the identity of alleged
Internet defamers on the grounds that there is no right to free speech to defame and an
anonymous critic is not entitled to any special privilege that would prevent or delay his
unmasking in a lawsuit just because his comments were posted on the Internet,
respectively. See Rebecca Fairley Raney, Judge Rejects Online Critics Efforts to Remain
Anonymous, N.Y. TIMES ON THE WEB, June 15, 1999, http://
www.nytimes.com/library/tech/99/06/cyber/articles/15identity.html (discussing Xircom
case); John A. Walker, Cybersmears, CYBERSPACE LAW, July-Aug. 2001, at 10 & n.2
(discussing Hvide case).
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290 NEW ENGLAND LAW REVIEW [Vol. 42:275

anonymous defendants identity to allow the plaintiff to properly

proceed.52
In a similar vein, plaintiffs will have to ensure that their actions are
not barred by state anti-SLAPP statutes,53 which have been adopted by at
least twenty states.54 SLAPPS (Strategic Lawsuits Against Public

52. Dendrite Intl, Inc. v. Doe No. 3, 775 A.2d 756, 760-61 (N.J. Super. Ct. App. Div.
2001). By way of comparison, the court in In re Subpoena Duces Tecum to America Online,
Inc., 52 Va. Cir. 26 (Va. Cir. Ct. 2000), available at 2000 WL 1210372, adopted an
equivalent test, holding that a non-party ISP such as AOL would be required to disclose the
identity of anonymous posters:
(1) when the court is satisfied by the pleadings or evidence supplied to
that court (2) that the party requesting the subpoena has a legitimate,
good faith basis to contend that it may be the victim of conduct
actionable in the jurisdiction where suit was filed and (3) the
subpoenaed identity information is centrally needed to advance that
claim.
Id. at *8. Similarly, the court in Columbia Insurance Co. v. Seescandy.com held that:
[1] [T]he plaintiff should identify the missing party with sufficient
specificity such that the Court can determine that defendant is a real
person or entity who could be sued in federal court. . . .
[2] [T]he party should identify all previous steps taken to locate the
elusive defendant. . . .
[3] [The] plaintiff should establish to the Courts satisfaction that
plaintiffs suit against defendant could withstand a motion to dismiss. . .
.
[4] the plaintiff should file a request for discovery with the Court, along
with a statement of reasons justifying the specific discovery requested as
well as identification of a limited number of persons or entities on
whom discovery process might be served and for which there is a
reasonable likelihood that the discovery process will lead to identifying
information about defendant that would make service of process
possible.
185 F.R.D. 573, 578-80 (N.D. Cal. 1999).
53. SACK, supra note 21, 10.11.2 (SLAPP suits have been characterized as generally
meritless suits brought by large private interests to deter common citizens from exercising
their political or legal rights or to punish them for doing so. Typically, the [anti-SLAPP]
statutes provide for an early means of testing the bona fides of the plaintiffs claim and for
some combination of costs, legal fees and damages to be awarded to the defendant for the
plaintiffs initiation of groundless litigation.) (internal quotation marks omitted).
54. Victoria Smith Ekstrand, Unmasking Jane and John Doe: Online Anonymity and the
First Amendment, 8 COMM. L. & POLY 405, 416 (2003) (At least twenty states have anti-
SLAPP laws that prohibit plaintiffs from using the legal system to silence opposition and
chill free speech.). According to the California Anti-Slapp Project, states or territories with
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2008] PROTECTION FROM ONLINE LIBEL 291

Participation) are lawsuits that masquerade as ordinary lawsuits but are

brought to deter common citizens from exercising their political or legal
rights or to punish them for doing so.55 In California, for example, the
anti-SLAPP statute requires that plaintiff establish to the courts
satisfaction that it has a probability of succeeding on the merits of the
claim before it can be allowed to initiate discovery.56
In addition to these legal obstacles, a potential plaintiff may also have
to overcome a purely technological hurdle. Indeed, software has been
developed and commercialized to allow users to hide (or in the alternative,
continuously change) their IP addresses through reliance on proxy servers
or by other means.57 As reliance on such software becomes more
widespread, the value to a plaintiff of a court subpoena to uncover the

anti-SLAPP statutes include: Arkansas, California, Delaware, Florida, Georgia, Guam,

Hawaii, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri,
Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode
Island, Tennessee, Utah, and Washington. See California Anti-SLAPP Project,
http://www.casp.net (follow Statutes hyperlink, then follow Other States hyperlink)
(last visited Apr. 1, 2008).
55. Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003) (quoting Wilcox v. Superior
Court, 33 Cal. Rptr. 2d 446, 450 (Cal. Ct. App. 1994), overruled on other grounds by
Equilon Enter. v. Consumer Cause, Inc., 52 P.3d 685, 694 n.5 (Cal. 2002)).
56. See CAL. CIV. PROC. CODE 425.16 (West 2007).
(b) (1) A cause of action against a person arising from any act of that
person in furtherance of the persons right of petition or free speech
under the United States or California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.
(2) In making its determination, the court shall consider the pleadings,
and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.
(3) If the court determines that the plaintiff has established a probability
that he or she will prevail on the claim, neither that determination nor
the fact of that determination shall be admissible in evidence at any later
stage of the case, or in any subsequent action, and no burden of proof or
degree of proof otherwise applicable shall be affected by that
determination in any later stage of the case or in any subsequent
proceeding.
Id.
57. See, e.g., Hide My IP Software, http://www.hidemyip.net (last visited Mar. 12,
2008). Port 80 Software, Complete Stealth and Better Security with ServerMask ip100 and
IP1000, http://www.port80software.com/products/servermask/tcpipmasking (last visited
Mar. 12, 2008); PrivateNavigator, http://www.privatenavigator.com (last visited Mar. 12,
2008);
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292 NEW ENGLAND LAW REVIEW [Vol. 42:275

identity of posters hiding behind IP addresses may well decrease.

Needless to say, the Dendrite test (and its equivalents), the applicable
anti-SLAPP statutes, and the aforementioned technological advances
impose significant restrictions on a plaintiffs ability to combat online libel
through the courts. Nevertheless, the subpoena of anonymous posters
remains, for now, a powerful weapon in a libel victims arsenal.

b. Remedies Sought
A potential plaintiff must initially consider what types of potential
relief to seek, in addition to assessing his or her chances of unmasking the
posters and setting forth viable claims against them. Most online libel
victims seeking redress through the court will request (i) an order from the
court compelling the removal of the offensive material, (ii) compensatory
and punitive damages, and sometimes (iii) a public apology. Each of these
remedies suffer from significant drawbacks.
First, and as explained above, the speed at which offensive material
can be disseminated across the Internet and reposted time and time again
means that the removal of material from one website under court injunction
may in some cases be an exercise in futility. Indeed, if the offensive posts
have been republished on a dozen other websites, the removal of the
original form of the post on one website will do little to lessen the harm
suffered by the target of such an attack. Such a remedy may best be suited
to cases in which the offensive material has been identified shortly after
being posted, and where a party can hope to obtain its removal before it is
disseminated widely. This rapid reaction time can only be achieved with
the kind of day-to-day monitoring of ones Internet profile touched upon
earlier in this Article, and is perhaps incompatible with the extended wait
period a request for court intervention might entail.
As for monetary damages, they are appealing but elusive. Indeed,
potential plaintiffs must be aware that the odds of actually obtaining a libel
verdict in any amount are slim, as [s]tatistics show that only 13% of
plaintiffs ultimately prevail in libel litigation.58 [T]he average success
rate is very, very small. That reflects the fact that there are very substantial
hurdles to the successful prosecution of a defamation case.59 Moreover,
many call into question the adequacy of monetary damages in defamation
cases, as [d]efamation is a dignitary tort; attempting to reduce it to a
remedy for economic loss would be historically unfaithful, doctrinally

58. Lidksy, supra note 12, at 875.

59. David Boies, The Chilling Effect of Libel Defamation Costs: The Problem and
Possible Solution, 39 ST. LOUIS U. L.J. 1207, 1207 (1995).
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2008] PROTECTION FROM ONLINE LIBEL 293

radical, and destructive of important cultural values.60

Monetary damages are rare. That is not to say that they are
insignificant when awarded. Indeed, many courts and juries have not
hesitated to award significant sumsoften reaching six-figure verdicts
when they deem appropriate.61 But again, such statistics cloud the picture.
One commentator noted:
We did a survey to find out what percentage litigation expenses
(legal fees and disbursements) represented the total amount of
transfer payments resulting from defamation lawsuits. What we
found is that if you add up all the litigation costs and the money
that is actually paid to plaintiffsif you add up all the money
that both the plaintiff and the defendant have thus spent as a
result of the litigationsomewhere between 3.5% and 8% of
that goes to the plaintiff, and over 90% (maybe well over 95%
because there are real problems of collecting the data) go to legal
fees and expenses.62
Finally, requests for apologies as remedies leave much to be desired.
Because the resulting damage inflicted upon the defamed person or entity
cannot be contained in one area on the Internet, issuing an effective reply
or retraction statement [is] nearly impossible . . . .63 It is, however, a
remedy that is still often sought, sometimes successfully. Indeed, [i]n past
cybersmear cases, plaintiffs have . . . been willing to dismiss litigation in
exchange for a number of remedies, including public apologies or
retraction statements on the same boards as the original statements
appeared, or the payment of damages or attorneys fees.64
Victims of online libel therefore have the opportunity to defend
themselves through the courts, but will have to overcome significant
statutory and constitutional obstacles and may well be left unsatisfied by
the legal remedies available to them. Such individuals or business entities
may consider it to be to their advantage to forego the expense and hassle of

60. David A. Anderson, Rethinking Defamation, 48 ARIZ. L. REV. 1047, 1047 (2006);
see also Rosenblatt v. Baer, 383 U.S. 75, 93 (1966) (Stewart, J., concurring) (noting that
[t]he destruction that defamatory falsehood can bring is, to be sure, often beyond the
capacity of the law to redeem and deeming actions for damages in such a context
imperfect).
61. See, e.g., Varian Med. Sys., Inc. v. Delfino, 106 P.3d 958, 963 (Cal. 2005)
(awarding the plaintiffs $350,000 in punitive damages on remand from federal court based
on the malice of the defendants); Graham v. Oppenheimer, No. 38-2280, 2000 WL
33381418 (E.D. Va. Oct. 2000).
62. Boies, supra note 59, at 1207.
63. Troiano, supra note 20, at 1466.
64. OBrien, supra note 19, at 2771.
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294 NEW ENGLAND LAW REVIEW [Vol. 42:275

relying on the court system and seek redress through extrajudicial means.

5. The Extrajudicial Recourses Available to Victims of Online

Libel

a. Responding to Attacks Through Public Statements

A victim of online libel may seek to publicly respond to libelous
attacks, through press releases or otherwise. While such tactics draw
attention to allegations that the victim might wish to keep secret,
advertising these comments, paradoxically, offers significant advantages
for the victim.
First, revealing oneself as a victim of online libel and advertising an
intent (real or otherwise) to bring suit to obtain redress may convince
administrators, ISPs, or posters themselves that the removal of the
offending material may be in their best interest. Indeed, such a move would
allow them to avoid litigation against an individual or business entity that
has shown itself ready to fight online libel. Victims of online libel could
thus obtain the sought-after results without incurring the expense of legal
representation.65
Second, it allows business entities to address the libelous allegations
and thus reassure investors and other market players of the falsity of the
posted comments. Doing so at a very early stage reduces the risk that
anyone might rely on such posts to the detriment of the business entity.
Business entities may also seek to respond to defamatory material
online by posting contradictory material (sometimes anonymously) on the
same blogs and discussion forums. Indeed, it is an already common
business practice for large corporations to monitor their profile in online
discussion groups and forums.66 If material a company deems libelous is
posted on an open forum accessible to the public, it is within the
companys rights to post a rebuttal to such material. In doing so, the target
may be able to call into question the veracity of the offensive material, and
limit the damage done to its name and reputation.

65. See id. at 2770-71 (Giving defendants notice of potential legal action may also
result in behavior that placates the plaintiff without revealing the defendants identity. In
some instances, warning defendants may encourage them to cease their allegedly
defamatory anonymous postings in order to avoid the revelation of their identities.).
66. See, e.g., Daniel Terdiman, Why Companies Monitor Blogs, CNET NEWS.COM,
Jan. 3, 2006, http://news.com.com/Why+companies+monitor+blogs/2100-1030_3-
6006102.html; Posting of Joe Co to Lithium Blog, http://talk.lithium.com/lithium/
blog/article?message.uid=95 (Dec. 19, 2006, 10:02 PM); Posting of Duncan to Blog Herald,
http://www.blogherald.com/2005/06/24/companies-charged-100k-per-year-to-monitor-blogs
(June 24, 2005).
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2008] PROTECTION FROM ONLINE LIBEL 295

The additional advantage of posting a rebuttal in a discussion thread

containing the offensive material is that it increases the chance that the
offensive material, if disseminated, will be spread in tandem with the
rebuttal. Common sense rules apply, of courseany post sticking too
closely to the company public relations line will be sure to be identified as
a public relations post by other members of the online community, and,
accordingly, disregarded.

b. Third Party Pressure on Administrators and ISPs

In the alternative, victims of online libel may simply seek to fight fire
with firei.e., use the libelous material against those who seek to keep it
posted online. Given the often shameful nature of the speech at issue,
victims of libel may bring said speech to the attention of friends or
employers of the administrators, or even reveal this material to advertisers
and sponsors of their websites, in the hope that those third parties will exert
pressure on the administrators (or the ISPs) to remove the offensive
material. The impact of such tactics is undeniable, as Mr. Ciolli, one of the
AutoAdmit.com administrators, can attest.
At the time of the events at issue in the AutoAdmit suit, Mr. Ciolli
was a law student about to join a prestigious Boston law firm. Mr. Ciolli
who by then had turned down plaintiffs request to have the offensive
material removed from view on his websitecould thus reasonably look
forward to the start of a promising legal career. When plaintiffs filed their
complaint and the nature of the allegedly defamatory comments was made
public, however, the law firm was compelled to retract its offer of
employment and distance itself immediately from Mr. Ciolli.67 The public
offline revelation of the offensive material thus had a devastating impact on
Mr. Ciollis professional prospects.68
Using personal leverage (through contacts with friends or employers)
or financial leverage (through advertisers and sponsors) thus confers at
least as much power upon a victim of libel in its fight against
administrators and ISPs as the courts subpoena power did for plaintiffs
against anonymous posters. Moreover, it may allow for far quicker results,
as a victim need only pick up the phone and contact third parties rather than
file a complaint and go through the process of obtaining a subpoena. The

67. See Efrati, supra note 5; Posting of Amir Efrati to WSJ.com Law Blog,
http://blogs.wsj.com/law/2007/05/03/law-firm-rescinds-offer-to-ex-AutoAdmit-director/
(May 3, 2007, 11:02 AM).
68. Interestingly enough, Mr. Ciolli has now filed his own complaint against, among
others, the AutoAdmit plaintiffs. See Posting of Dan Slater to WSJ.com Law Blog,
http://blogs.wsj.com/law/2008/03/05/ciolli-sues-yale-law-students-in-autoadmit-scandal/
(March 5, 2008, 2:25 PM).
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296 NEW ENGLAND LAW REVIEW [Vol. 42:275

speed at which the material is removed is critically important, as an

immediate take-down of the libelous material lessens the risk of its
dissemination. Of course, the amount of leverage that can be exerted
through third parties will depend on the nature of the posted material. The
administrators of the website in the Dendrite case, for example, are
unlikely to feel much pressure to remove the material when it is, on its
face, fairly innocuous. Moreover, such tactics should be approached with
caution. The potential public relations damage that could arise if a business
entity was seen to strong-arm an innocent administrator might well
outweigh any harm done as a result of the original comments.

c. Private Internet Watchdogs

Finally, a target of libel may turn to private companies to take on the
task of cleaning its Internet profile. A number of these have emerged over
the last few years.69 Their client base, broadly speaking, can be divided in
two categories: (i) individuals or business entities seeking to have
particular items or comments removed from their online profile; and (ii)
individuals who hire the firms to act as watchdogsto monitor their
electronic profile and ensure that any damaging material is immediately
brought to their attention. One such company is ReputationDefender,
created, in its own words, [t]o DESTROY, at your command, all
inaccurate, inappropriate, hurtful, and slanderous information about you
and/or your child using our proprietary in-house methodology.70
Mr. Fertik, founder of the company, explains that the growth
experienced by his business has been exponentiala reflection, perhaps, of
the increasing importance accorded to preserving ones Internet profile free
of any damaging material.71 Companies such as ReputationDefender offer a
number of approaches to clients seeking to have damaging online material
removed, all of which share a common aimto limit the online distribution
of the offensive material at an early stage and to compel administrators and
posters to remove that material from public view.72 In general, the process
begins with the watchdog organization contacting the host or administrators
of websites on which the targeted material is made available. Through

69. See, e.g., ComplaintRemover.com, http://complaintremover.com/ (last visited Mar.

12, 2008); ReputationDefender, http://www.reputationdefender.com (last visited Mar. 12,
2008); David Whelan, Google Me Not, FORBES, Aug. 16, 2004, at 102, available at
http://www.forbes.com/free_forbes/2004/0816/102.html.
70. ReputationDefender, http://www.reputationdefender.com/company (last visited Feb.
13, 2008). The company does not, at this point, take on corporate clients.
71. Telephone Interview with Michael Fertik, CEO, ReputationDefender (July 24,
2007).
72. Id.
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2008] PROTECTION FROM ONLINE LIBEL 297

negotiations with such individuals, Mr. Fertik claims to be able to obtain

the removal of the offensive material in the vast majority of cases.73
As Mr. Fertik himself admits, however, there is a small minority of
cases in which the firm is unable to obtain removal of the offensive
material from all online sources.74 The focus then turns to reducing the
visibility of the offensive material. In general, this entails taking steps to
guarantee that the comments at issue do not get listed as top hits by
search engines such as Google. For example, the watchdog will ensure that
an offensive post retrieved by running a Google search for a given client
appears as Googles fiftieth best result instead of appearing among its top
five results. In the AutoAdmit case, such an effort might have significantly
lessened any impact of the offensive posts on plaintiffs career prospects,
by decreasing the likelihood of potential employers running background
searches on candidates encountering the damaging material.75
Many of these companies are still in their early years, and
unfortunately, their long-term success rate is still difficult to assess. But if
their customer feedback is anything as positive as Mr. Fertik suggests,
reliance on private Internet watchdogs may prove a very worthwhile
alternative to court proceedings.

CONCLUSION
In sum, victims of online libel can turn to the courts to seek redress,
but are likely to find the path strewn with significant obstacles, such as
Section 230 of the CDA and the opinion privilege. Increasingly, however,
such victims are discovering that similar results can be obtained through
extrajudicial means, be it by publicly addressing the libelous allegations,
compelling third parties to force administrators and ISPs to remove the
objectionable material, or relying on private companies such as
ReputationDefender to do the arm-twisting. With courts understandably
concerned with the chilling effect that their actions on behalf of alleged
victims of libel may have on free speech, and with the chances of obtaining
financial compensation through the courts slim, it is not surprising that
victims are increasingly choosing to rely on extrajudicial means to obtain
redress for their perceived harms.

73. Id.
74. Id.
75. See Marziah Karch, Top 10 Google Donts-Things You Should Never Do for Search
Engine Optimization, ABOUT.COM, http://google.about.com/od/searchengineoptimization/tp/
badseo.htm (last visited Mar. 12, 2008) (discussing methods of lowering Google rank).