In late 2011, the Freeport Standard Journal in Freeport, Illinois published an article online concerning a local politician’s (Bill Hadley) decision to seek election to the Stephenson County, Illinois board. As with much online content, the article contained a section allowing users to post comments.
One such user, who identified himself as “Fuboy,” posted a series of negative (non sequitur) statements about Hadley, among other things, likening Hadley to Jerry Sandusky (the Penn State coach charged with sexual abuse of several boys) stating that Hadley was a “Sandusky waiting to be exposed,” and describing an alleged previous suicide attempt by Hadley.
Hadley filed suit against the newspaper for defamation per se and obtained from it the IP address from which the comments originated. Thus began his three-year quest to learn the identity of Fuboy, which recently proved fruitful when the Illinois Supreme Court affirmed lower court rulings ordering Fuboy’s Internet Service Provider (Comcast) to identify him. The U.S. Supreme Court declined to hear the case.
Comcast revealed that the account from which Fuboy’s comments originated is owned by one Franklin Cook, an attorney in Freeport, Illinois and an apparent acquaintance of Hadley. Upon the revelation, Hadley said in an interview “I know him, and I’m very disappointed…This has been a nightmare for me.” Hadley spent more than $35,000 in attempting to learn Fuboy’s identity. Presumably, Hadley will now seek damages against Cook for the defamatory statements. Cook’s attorney admitted that Cook pays for the internet service, but stated that Cook has a family and “many, many people can use an IP address.”
This ruling is a cautionary tale to so-called internet trolls – those who anonymously post inflammatory, hateful, messages in response to anything from news articles to recipes. The messages are aimed to spur argument and dissent rather than add to the public discourse.
When such messages transcend the line between just plain annoying and defamation, the victims of these anonymous tortfeasors can now obtain the poster’s identity under the new ruling and pursue damages.
As an employer, a good practice to ensue that your business is not unwittingly caught up in a fight when an employee uses your internet access to perpetuate troll-like activities. Adopt policies prohibiting posting any online content on devices utilizing employer internet access. Consider limiting the sort of content accessible from employer-owned devices.
As an employee, a good practice is to regularly perform an internet search (or set up a Google Alert) using your name (and variations of it) to manage online content about you and ensure that your reputation remains intact.
A few years ago, I was contacted by a client who was also the victim of an incident similar to Hadley’s. Though he was not accused of heinous criminal behavior, a posting to a news story about his former employer accused my client (by name) of singlehandedly tanking one of the most important divisions of his Fortune 500 employer by embarking on a very expensive and failed marketing campaign. His recent separation from the employer was under completely unrelated circumstances. My client had no responsibility for the complained-of marketing campaign; it was the brainchild of those succeeding the role out of which he was already transitioning. Nevertheless, we were extremely concerned that his colleagues in the industry (including future employers) might view this commentary and believe that his otherwise routine and mutual separation was a for-cause termination following a series of very poor business decisions. Fortunately, the comment was removed by the website’s moderator upon our request. My client chose not pursue any action and had continued his very successful career.
If you find yourself craving to author anonymous commentary, consider a few questions before you post to ensure you are not engaging in legally risky behavior. Would you would write the same message if your identity were to be revealed and your comments attributed to you? Is your message sought to thoughtfully add to the conversation or throw fuel on the fire? A defamatory statement is a false statement of material fact published to a third-party. Therefore, be very certain that what you say is actually true (like, you are a firsthand witness kind of certainty), since even perpetuating rumors or others’ false statements or even expressing opinions containing defamatory content can be legally problematic. Be extremely cautious about making statements that could indicate that the subject of your message committed a crime, lacks integrity, or is incapable of performing in his or her profession. In the context of public internet commentary, adhering to the old adage “if you don’t have anything nice to say, don’t say anything at all” can help keep you from becoming a defamation defendant…or a troll.