When it comes to your personal life or your business, if your reputation for honesty or competence has been defamed by an upset customer, former employee or competitor, who wouldn’t want to tackle this situation head on? We all would, and what often comes to mind is filing a lawsuit for defamation.
Defamation has certainly been in the news lately with the multimillion-dollar lawsuit Johnny Depp brought against ex-wife Amber Heard, claiming she defamed him in an op-ed that cost him lucrative acting jobs. While the jury ultimately sided with Depp, does anyone come out of a salacious six-week trial “a winner”? Or could the airing of dirty laundry lead in a court case lead to the opposite effect?
Those are issues anyone considering a defamation suit needs to consider. In fact, two people from opposite sides of the country hoping to pursue separate, unrelated defamation suits called me recently. One was the winner of her town’s annual grilling contest. The other was the CEO of a small Midwest IT firm. Each spoke with lawyers about filing defamation suits, but both were basically told, “No, we’re not going to do this for you. It is just not in your best interest.”
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In their calls they each said they had real proof. Still very upset, they each told me they have the money to pay an attorney and they wanted to teach their detractors a lesson. This is what they really wanted to know: Why would a lawyer decline a solid case?
So, if you have spoken with lawyers about filing a defamation lawsuit — and have been turned down — today’s story will explain why lawyers often counsel their clients out of marching off to the courthouse, sending an inflammatory cease and desist letter, posting angry comments online or taking other forms of action.
Case No. 1: A BBQ Chef ‘Rubbed’ the Wrong Way
The gist of my call from “Alice,” a dental hygienist working in a small town not far from Chicago:
“Mr. Beaver, I am the victim of a nasty gossip campaign being conducted by several people who are jealous of me being awarded top BBQ Chef in our town’s yearly grilling contest. This was the first time that I won it, and they are posting online that I cheated by duplicating commercially available rubs and BBQ sauces, which I did not!
“No one outside of our grilling community has said anything to me – yet – but I am afraid that will happen. I want to sue them for defamation, but every lawyer I spoke with refused to take my case, saying they won’t do this and mentioned Barbra Streisand! But what does she have to do with this?”
Case No. 2: He Copied Customer Lists and Is Bad-Mouthing Us
The other call I got was from “Eric,” the CEO of an IT-based telecommunication company that sells telephone systems and VOIP services to customers nationwide. Here is what he had to say:
“All of our employees sign a statement acknowledging that customer information is confidential and owned exclusively by the company. They may access it in the course of their employment, but not copy, nor, if they leave us, use it to solicit our customers.
“But ‘Doug’ did just that! He copied the information, opened his own shop, and is contacting our customers, spreading untrue statements about us. But I can’t seem to get any attorney interested in helping us. Why?”
It’s Called the Streisand Effect
I ran my readers’ questions by Cleveland-based attorney Daniel Powell, managing attorney with Minc LLC. His firm is recognized as one of the country’s most accomplished in helping people and companies deal with internet defamation, content removal, harassment, consumer complaint/review removal, to list a few.
Their website, Minclaw.com, offers a wealth of practical, highly useful information with YouTube videos. The material is so good, so informative, that I know of law professors who recommend it to their students.
Powell explained why experienced defamation lawyers urge caution to clients who want to immediately rush off and file suit. “Any time you are considering filing a defamation case, you must consider the possible risks of unwanted exposure the lawsuit may bring to the statements you allege to be defamatory and properly weigh those risks against the potential benefits of the lawsuit.”
Barbra Streisand’s Huff Backfired
In 2002, a photographer took more than 12,000 photos of the California coastline and placed them in an online database to document coastal erosion. Among them was one of Barbra Streisand’s bluff-top estate. Streisand sued the photographer and the companies hosting the image, claiming an invasion of privacy and asking for more than $50 million in damages.
“The filing of the case backfired spectacularly – bringing widespread attention to the image,” Minc’s website points out. “Within the first month after filing suit, the image was viewed by nearly half a million people – and in the months (and years) that followed, millions have viewed the image.
“And thus, the social and psychological phenomenon known as ‘The Streisand Effect’ was born. Not only did Streisand lose her case, but she brought unparalleled attention to the very information she was trying to suppress. Had the lawsuit never been filed, it is possible the image would still only have an audience in the single digits.”
‘I Am Not a Crook!’
Who can forget Richard Nixon’s statement, “I am not a crook!” For readers old enough to have heard him say that, in view of Watergate and other scandals, many of us thought, “Oh, yes you are!”
“And that’s the problem with a shoot-from-the-hip attitude about being too quick to file a defamation lawsuit,” Powell underscores. “You need to ask yourself if it is better to say nothing in a public setting than to expose these embarrassing issues to people who might never have heard a thing about them.”
What to Do Instead
So, let's say that you have been defamed but do not want to incur the expense of a lawsuit or run the risk of a Streisand Effect, what can you do?
Send a Cease and Desist Letter
I ran that question by a friend of this column, Houston-based defamation attorney Paul Sternberg.
His website – https://thedefamationattorney.com/ – is also a valuable resource for anyone facing defamation issues.
"It is so important to have a consultation with an attorney experienced with defamation cases before doing anything yourself that would make the situation worse.
"Lawyers who deal with these types of cases will often recommend sending a cease and desist letter. With the right fact situation, these have been proven to work exceptionally well in a very high percentage of cases and consist of two parts: the actual letter plus something that convinces them you are serious.
The cease and desist letter should contain these elements:
- A description of the defamatory statements that are being made and a demand that the party or parties making them immediately stop.
- An explanation about why the statements are defamatory, and how they harm your reputation, occupation or business.
- That you will file a lawsuit if they do not stop, fail or refuse to retract them immediately and provide proof of having done so. Give them a specific deadline – a time by which this must be accomplished.
- It should be either sent using certified mail, return receipt requested, or hand-delivered to the offending party.
The Little ‘Plus’ That Usually Does the Trick
Of course, we've all met people who are stubborn, convincing themselves that their conduct or behavior is justified, and telling the people they've harmed, "Pound Sand! I'm Not Stopping!"
So, how do we get someone like that to stop their campaign of defamation?
"Prove to them this is no joke, and the way to do it is by attaching an actual lawsuit – that has not yet been filed – and a message: ‘This is the lawsuit we will file against you unless you comply with our request.’
"Again, given the right fact situation, this approach can work extremely well, but it is not the only avenue open to stopping ongoing defamation short of a lawsuit," Sternberg said.
One Size Does Not Fit All
Sometimes a softer approach may be called for, according to Powell. "It is important to weigh all the risks against the potential benefits,” he said. “Sometimes what is called for isn't a cease and desist letter, but a politely stated request. ‘This is hurting me and my family. Won't you please remove these comments?’
“Trying a soft approach can work in the right situation and is often the best initial approach to take. This is why your response to defamatory statements must be carefully considered to avoid making the situation even worse."
The Bottom Line: Get Good Advice (and Take It!)
With all this in mind, both attorneys agreed that it’s critical to obtain advice from experienced defamation counsel before doing anything. “You should always jealously safeguard your reputation and may have no choice but to file suit for defamation,” Powell said, “but this decision can only be reached after reviewing all considerations with your attorney.
“Lawsuits are costly and can be emotionally draining. Lawyers who care about their clients’ welfare provide proper counsel when going to court is not in your best interest.”
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