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Fighting back against cybersmear

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Good, honest and loyal employees are the greatest asset of any company. Unfortunately not all employees are great. Some employees are dishonest and others are vindictive. Not surprisingly, ex-employees who are discharged due to dishonesty are the most likely ones to post a defamatory blog about their former employer.

The Internet creates ideal opportunities for disgruntled former employees to anonymously attack ex-employers, destroy reputations and spread lies. The Internet is extremely effective when used for this wicked purpose. After all, the Internet is the world’s largest publication. As the United States Supreme Court observed in Reno v. ACLU, with the Internet “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.”

What should employers do about cyberlibel? It may depend on when the libel occurred. The National Labor Relations Board has taken the position that employees who make comments about common workplace issues on the Internet are engaging in protected, concerted activity. If the Internet posts were made by the employee before the employment relationship ended, they may be protected, depending on the nature and veracity of the statements. If the statements were made after employment terminated, the protections of the National Labor Relations Act should not apply. So, the employer may have more freedom in how it chooses to respond.

Employers dealing with post-termination cybersmear may consider filing a civil action for defamation or trade disparagement. Employers who pursue this path must overcome legal hurdles. For instance, many cybersmearers do their damage on the Internet anonymously. Consequently, employers may need to subpoena the Internet service provider to identify the blogger. This process can be difficult. In Krinsky v. Doe 6, the California Court of Appeal held a plaintiff must make a prima facie showing that she has a valid claim against the anonymous defendant before she can even discover the defendant’s identity.

Even if the identity of the blogger is known, cybersmearers can use California’s Anti-SLAPP statute to counter defamation claims. That statute allows defamation defendants to file special motions to strike if the case concerns an “act in furtherance of right of petition or free speech under the United States or California Constitution in connection with a public issue.” If successful on such a motion, the lawsuit will be dismissed and the cybersmearers can recover their attorney fees and costs. To succesfully oppose an Anti-SLAPP motion, an employer must provide evidence to establish it has a "probability of prevailing" on the merits of its causes of action. This is different than a traditional lawsuit where proof issues are reserved for trial.

Furthermore, the Communications Decency Act provides Internet service providers with immunity from lawsuits regarding the content of publications made by others. Thus, an employer is generally prohibited from suing the Internet service provider as a means of stopping the cybersmear campaign.

In light of these and other issues, it may be difficult to pursue defamation claims against former employees who engage in cybersmear. However, it is not impossible. When the false publication involves a provably false statement of fact, the employer can generally overcome objections to subpoenas and Anti-SLAPP motions. Employers should also consider filing alternative claims. Unfair competition claims may be pursued when the ex-employee is trying to compete unfairly against the employer’s business by spreading lies and falsehoods. Trademark, copyright infringement, and trade secret claims may be available when the blogger makes reference to confidential or proprietary information in her cybersmear campaign. Furthermore, all 50 states have laws that prohibit electronic forms of stalking, harassment or cyberbullying. There are a variety of other potential claims that may be considered. All told, an employer needs to be educated, prepared, and creative when combating cybersmear by former employees.

-Submitted by Spencer C. Skeen and Timothy L. Johnson, Fisher & Phillips, LLP.

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