The internet has long been a safe harbor for trolls and ne’er-do-wells of all sorts to unleash their scorn on whatever unsuspecting business lands in their crosshairs that day. Yelp, Glassdoor and many similar web-based services provide a valuable mechanism for consumers to rate companies based on their experiences; but they also provide a virtual soapbox from which the less scrupulous can publish false information and materially damage a company’s reputation.
An actionable defamatory statement arises where there is an unprivileged publication of a false statement, made to a third party, that causes damages. See Solaia Tech., LLC v. Specialty Pub. Co., 221 Ill. 2d 558, 579, 852 N.E.2d 825, 839 (Ill. 2006). By providing a voice to the masses, the internet has made it easier than ever before to publish false statements to third parties and it is now well established that statements made online can be the basis of a defamation action. See Hadley v. Doe, 2015 IL 118000, 34 N.E.3d 549 (Ill. 2014).
But how do you discover the secret identity of AngryEmployee546 who is presently scouring the internet for additional websites to tell the world that you steal your customer’s money? In Illinois, one can use a pre-suit discovery tool known as a Rule 224 Petition. A Rule 224 Petition allows the petitioner to request information from the entity that owns the website that is publishing the offending remarks. Such information can include all the data that the website operator collects from the poster. At a minimum, this usually includes an IP address and an email address and depending on the website, may include much more. From there, it is generally possible to connect the dots to the offending poster.
In order to sustain a Rule 224 Petition and discover the identity of a poster, the petitioner must present sufficient allegations of a defamation claim to overcome a motion to dismiss that is automatically imposed by the court. Id. This means that a petitioner must effectively plead all of the elements for a claim for defamation on the face of the petition in order to obtain the information it seeks.
The one of the biggest hurdles for sustaining a defamation claim for internet published statements is that the statement is an opinion, and thus constitutionally protected speech. Opinion statements, even if untrue, are not defamatory because they are constitutionally protected under the First Amendment.
Opinion statements also make up a large portion of negative online posts. For example, if you were to write a review of restaurant and state that the service was slow, the food was terrible and the experience was unpleasant, such statements, even if totally false, are arguably just your opinion and not defamatory. Whereas if you said that you saw the cook return to work without washing his hands and then saw the server spit in your food, these objectively untrue facts could well be defamatory.
Despite the hurdles, Illinois law provides a mechanism to find out who published defamatory remarks about you or your business so that you can protect your image, should the need arise. If you or your business has been targeted by false online statements and you wish to investigate your options, please contact:
Robert G. Cooper at:
firstname.lastname@example.org or 312-368-0100.