How to remove damaging and defamatory material from the internet – what small businesses need to know

The plethora of conversations on the internet have resulted in a dilemma for businesses – someone, somewhere will say something bad about their company in an attempt to take it down.

This isn’t a paranoid fear. Customers believe online reviews and make purchasing decisions based on what they read online.

A blog post or a Facebook comment may seem harmless, but if it contains damaging or defamatory material, it can mean major losses.

But most businesses don’t have a clue about getting this material removed. Google results don’t discriminate against age – a libelous comment from five years ago could potentially show up on the first page of a Google search.

This morning, SmartCompany attended a seminar at which Ben Patrick, senior associate of dispute resolution at law firm Holding Redlich, informed business owners how to go about removing defamatory or damaging material from the internet.

The bottom line? It’s far easier to go after an individual rather than a huge search giant like Google, which puts up multiple road blocks on the way to court action.

“This is a relatively recent area of law which has accelerated in development over the past two or three years,” he says.

“There are two key themes to this. The first is knowledge…and the second is control. This area of law is all about the person who knows about the information, and the person who controls that information.”

Patrick pointed to several examples of cases which have been brought against Google for damaging material. The cases encapsulate the difficulty of dealing with this kind of material – is a hosting company responsible for damaging comments made on a blog, or the blog itself?

“It’s difficult to take on Google,” he says. “You have to get through all sorts of barriers…but it has been done.”

Patrick profiled a case in which an Australian man, Michael Trkulja, sued both Yahoo! and Google over an article which appeared online that featured a picture of Tony Mokbel instead of his own face.

Trkulja claimed he suffered as a result of the association – people thought he was a gangland figure. He successfully sued both search engines and won damages as a result.

But a key question emerged from the case – was the search engine itself aware of the content that had been posted? And had it been given enough time to fix the problem?

Another case involving Payam Tamiz, a politician in England, gave judges a dilemma. A comment was posted on a blog alleging Tamiz was a terrorist. Google hosted the blog – but was Google responsible for the content?

While Tamiz lost, the ruling earlier this year found a gap of five weeks between when a complaint had been made and the removal of defamatory comments on a blog post could leave Google open to defamation action.

So suing Google is possible in some circumstances. But Patrick says it’s much easier to track down an individual who has posted a defamatory comment on a blog or social media platform.

“The easiest way is to start with a search order,” he says. “It’s essentially like a search warrant, but you don’t need to have the police there. You can have an independent solicitor there to make sure you don’t breach any laws.”

The process works like this: you discover defamatory material, and then trace the IP address of the person who wrote it. A quick search will show you which internet service provider owns that particular IP address.

From there, you can request a search order – but you have to prove three things:

  • That you have a strong prima facie case
  • The loss or potential loss will be serious of the search order isn’t made
  • That there is sufficient evidence that if it isn’t recovered, the respondent may destroy it.

Patrick says he has had clients successfully gain information from these types of searches. In lieu of suing a hosting company, these types of searches can be a good alternative.

“It’s always better to go after the person responsible and get them to take the comment down,” he says.

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