Pub. 12 2013-2014 Issue 1

24 How Companies Can Respond to Untruthful Online Postings By Brett R. Harris, Esq. Over the last decade, technology has driven fundamental changes in the way people communicate and become informed about the world around them. The Internet has also revolutionized commercial advertising as it opened up new venues for consumers to learn about businesses and products. Previously, consumers became informed of local businesses through traditional media sources, advertisements paid for by the businesses and local word of mouth. Today, instead of pulling out the telephone book, consumers turn to search engines and online review sites. The main drawback, from a business standpoint, is that there is no editorial board or fact checking on the Internet. Since anyone can create a blog or post comments online, what are the implications when negative information is posted about your business? What legal recourse is available to have information removed from the Internet? In a landmark ruling in 1997, the United States Supreme Court struck down the 1996 Communications Decency Act, a federal law censoring “indecent” online communications. The unanimous Court designated the Internet as a free speech zone, confirming the application of the First Amendment to this venue for public speech. While First Amendment rights are accorded great protections under the law, they are not absolute, and are subject to limitations under traditional legal principles including defamation, contract rights and intellectual property claims. Under New Jersey law, defamation is defined as a false statement about an indi- vidual or business, communicated to a third party and published by the speaker either negligently or with malice, provided that the individual or business which is the subject of the false statement suffers damages. The time limit for bringing a case in New Jersey alleging defamation is one year from publication of the de- famatory statement, and cases have interpreted the time period to run from the date of posting for Internet publications. In a situation where defamatory statements are published online, while a defama- tion suit can be pursued against the maker of the statement, there are limitations on pursuing the website operator itself where the statement is posted. Federal law shields Internet message boards from suit when they do not exercise editorial control over postings. The “Legaleze” of Online: S p r i n g 2 0 1 3 new jersey auto retailer