In-House Counsel Guidebook: How to Handle Internet Defamation and Online Reputation Attacks August 2014 | Page 17

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Sending cease and desist letters: These letters can be highly effective
– if there is a good legal basis. Once the identity of the person
who posted harmful information is known, in-house counsel can
contact them by letter, requesting removal of the information and
making them aware that the company is prepared to file a lawsuit
(attaching a draft complaint) if they do not stop their attacks of the
company online. But there should be legal grounds for threatening
to bring a lawsuit, or it could create a public relations nightmare.
Legal counsel should ask how the company would be perceived in
the court of public opinion – as a bully or as a victim?
Bringing a Lawsuit: In many instances, especially when the harm
from an attack is significant, a lawsuit may be the most effective
solution. Again, many attacks are anonymous, so lawsuits – often
brought under state law – may be initiated as “John Doe” suits.
Once the attacker’s identity is revealed, they can be named as a
defendant. As mentioned, be mindful of the statute of limitations,
and it is important to be aware of the different claims – and their
respective elements – in the states in which the lawsuit is filed. The
elements of defamation claims are similar in all states, but vary
some by jurisdiction. The statute of limitations for defamation
claims in the vast majority of states is one or two years, but for
some it is three years (and just six months for slander cases only in
Tennessee). Meanwhile, some states, such as California, have trade
libel claims. Again, in-house counsel should be aware of filing a
lawsuit (or a premature letter) that can cause more harm than good.
This relates to the “Streisand effect” concept, referring to Barbara
Streisand’s 2003 efforts to suppress photos of her Malibu beach
home that backfired and led to even greater publicity.

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