Pub. 12 2013-2014 Issue 1

N e w J e r s e y C o a l i t i o n O f A u t o m o t i v e R e t a i l e r s 25 new jersey auto retailer w w w . n j c a r . o r g In order to assert a claim, the identity of the speaker must be known. Many online forums are enabled for anonymous postings or use of screen names without readily iden- tifiable contact information for the speaker. While the website operator may be immune from the underlying liability for defama- tory statements, they must still respond to subpoenas requesting information about anonymous posters. While First Amend- ment rights protect anonymous speech in general, when the speech is defamatory, courts will compel disclosure of informa- tion which can lead to the identity of the online speaker. It is important to know that falsehood is a necessary element for the defamation claim. If the statement is merely negative (but not inaccurate), or is an expression of a personal opinion which cannot be objec- tively tested for truth, then the defamation will not give grounds for removal of post- ings. When faced with negative comments about your business online, a legal review can be conducted to see whether a cause of actionmay exist for defamation. If not, there may be grounds for requesting removal of the post in any event if it violates the website’s content guidelines or terms of use. Aside from legal recourse, companies can pursue public relations responses for reputation management online. Recently, cyber bullying legislation has been passed in various jurisdictions, which is not as relevant to businesses but may give recourse to individuals targeted by online speech that is hateful, discriminatory or harassing. From an employer’s perspective, it is important to have an acceptable Internet and Social Media Usage Policy in place, co- ordinated with company policies outlawing discrimination and harassment, to insulate the company from liability for online speech by employees that is unlawful or violates the rights of others. Enforcement of contract rights is an- other means courts have used to unmask anonymous online posters and to require the removal of certain statements on the Internet about a business or its customers. These situ- ations occur when information posted online is proprietary business information which a party can show is subject to obligations of non-disclosure. Thus, companies need to be proactive in protecting their confidential information and trade secrets. This can be accomplished through a comprehensive ap- proach to business practices and agreements, including adopting appropriate policies for employees addressing confidentiality, en- tering into nondisclosure agreements with service providers and business partners, and implementing physical and network security to protect sensitive data. Ideally, written contracts can provide a basis for a demand letter to take down postings which include confidential information and, upon failure of the website to promptly respond, may give grounds for immediate action by the courts in the form of injunctive relief. Sometimes a business is faced with the challenge of removing information on- line which is unauthorized use of their own content. Copyright and trademark infringement on the Internet are rampant given the ease (technologically) to copy and repost content online. However, just because a party puts their information online does not mean they abandon their intellectual property rights. In fact, such rights are expressly protected under federal legislation known as the Digital Millen- nium Copyright Act (DMCA). The DMCA grants online service providers an exemption from liability for copyright infringement by users of the online forum as long as the website provider meets certain conditions, including not exercis- ing editorial control over content, having no actual or constructive knowledge of the infringement and responding to notices of infringing material being posted on the network. Such notice is referred to as a DMCA takedown notice and is a criti- cal tool which can be used by a company when its information is misappropriated online. Such notice identifies work that is infringed and the legal grounds of owner- ship and typically results in prompt removal of the material by the website. Enhanced remedies are available to pursue infringers online if a company registers and protects its trademarks. This article has discussed situations when a company may pursue legal avenues to re- move information online which is defama- tory content, confidential information or protected intellectual property assets. But the principles need to be kept in mind for companies as publishers themselves online. Even though your business is not likely to operate an online bulletin board, if your company has a website or a social media presence, any content posted can be chal- lenged by others as defamatory or violating contract or intellectual property rights. As such, companies should monitor their own online venues (including their website, Facebook page and Twitter account), in- clude proper disclaimers for online content and provide employees with guidelines as to appropriate Internet and social media activities on behalf of the company. Brett R. Harris is a corporate transactional attorney and shareholder with Wilentz, Goldman & Spitzer, P.A. in Woodbridge, NJ. She can be reached at 732.855.6122, via email at bharris@wilentz.com or on Twitter at @ BrettHarrisEsq. In a situation where defamatory statements are published online, while a defamation suit can be pursued against the maker of the statement, there are limitations on pursuing the website operator itself where the statement is posted.