(Published in Business NH Magazine, October 2010)
There’s nothing that strikes fear into the heart of a business manager quite like getting an e-mail message that says: “have you seen what they’re saying about you on the web?” The message comes complete with a link to a blogger’s website containing entries highly critical of the manager, the manager’s company, and most unfortunately, the company’s products.
After the manager has screamed at the computer screen, and considered what physical violence should best befall the anonymous poster of this offensive material, he or she then must decide what to do. Simply ignoring the post, as the manager’s mother may have advised about handling bullies, seems out of the question. No, the manager must take some action. But what?
A 2010 New Hampshire Supreme Court case has narrowed the options. In The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., the Court reversed a trial court injunction and limited what the plaintiff can do when faced with negative material on the web. Mortgage Specialists was confronted with an article on a site about the company with a link to a confidential loan chart filed with the New Hampshire Banking Department. The article was accompanied by separate postings of anonymous negative comments about the company and its president. The company asked that the website remove the article and the posting. The website complied, presumably employing the “notice and takedown” provisions of its “Terms of Use” as required by the Digital Millennium Copyright Act (“DMCA”). The website refused to turn over the source of the loan chart and the negative comments, and the trial court ordered that the website turn them over. For good measure, the trial court also ordered the website not to republish the materials it had taken down.
The Supreme Court disagreed. As to the loan chart, it treated the website like a newsgathering organization, entitled to a qualified First Amendment privilege from having to reveal its sources. Mortgage Specialists would have to jump through a number of hoops before requiring the website to reveal its source. As to the anonymous commenter, the Supreme Court found a limited First Amendment right to anonymous speech, and required Mortgage Specialists to jump through a number of different hoops before requiring the website to reveal the identity of its comment poster. Suffice it to say that Mortgage Specialists, or any other business, would need the skills of a circus tiger to make out enough of a case to enable it to jump through those hoops. Finally, the Supreme Court held that the trial court could not, under the First Amendment, prevent the website from republishing the material, stating that Mortgage Specialists is limited to a money damages remedy should it prove defamation.
Does this mean that businesses have no remedy for offensive material appearing on the web? Several options still exist. First, as was the case with Mortgage Specialists, websites list terms of use which provide a method for a person to complain about offensive content. Most websites will remove controversial material in response to complaints, particularly if the content is posted by a third party. The DMCA provides immunity from copyright infringement liability to websites that remove third party content in response to a complaint.
Second, an underused provision of the DMCA provides a method for owners of material subject to copyright protection – whether writings or images – to go to court to get a subpoena to identify the poster of the content. With that information, the company can sue the poster for infringement, as well as get an injunction to require its removal from the web. Trademark owners may also be able to get an injunction against the infringing use of their marks.
Third, some businesses are now getting their customers to sign confidentiality agreements to limit their ability to comment about their business relationship on the web. Some doctors have required patients to sign such agreements, which may not be enforceable.
Finally, maybe the business manager’s mother was right after all: just ignore the bully. Any effort to identify and take down an anonymous blogger may only serve to inflame the blogger and increase the venom of the comments. The press may get wind of the controversy and everything, including the negative comments, may end up in the popular media. Sometimes taking no action, as painful as that is, may limit the damage inflicted by the commentary on the web.
Tom Donovan is a Director in the Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association He can be reached at 603-628-1337 or tdonovan@mclane.com. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth, as well as Woburn, Massachusetts.