The Huge Challenge of Litigating Content Posted Online

Barbra Streisand House -- the "Streisand Effect"
The "Streisand Effect": Barbra Streisand's Malibu compound.
The “brave new world” of the Internet and social media is having interesting side effects. One of these is the heartburn that some companies are feeling as unflattering portraits of their inside operations are painted, or other types of gossip are published for all the world to see.

In a recent example of this, we’ve had a chance to see how it’s playing out with Mechanical Dynamics & Analysis, an engineering services firm that repairs turbine generators. In court papers filed in U.S. District Court in St. Louis a few weeks back, it alleges that the Sound Off blog defamed current and former officers of the company. It also alleges that the blog revealed confidential company information.

The Sound Off blog doesn’t shy away from its mission. At the top of its masthead, it trumpets: “What we cannot say at the office, we can say here.” The postings in question pinpoint certain MD&A executives and reveal salary levels (that may or may not be accurate).

Another blog post reports that a former executive of the firm made a cool $4 million from the sale of the company.

Other posts just sound snippy. For example, there’s one that opines that one of the company’s officers “has two faces” – one “charming and cordial” … the other that of “a low-life crooked bastard.”

MD&A is asking the court to order Google to disclose the identity of the author(s) of the posts, after having unsuccessfully requested that Google remove the blog.

What are the chances of success of this legal action? Probably not very good.

For one thing, the U.S. District Court may lack jurisdiction because defamation cases can only be brought in federal court when the plaintiffs and defendants live in different states. As this point, there’s no way of knowing where the people who authored the anonymous blog posts reside … so it’s impossible to determine whether the suit should be brought at the federal or state level.

Also, the dates on the blog posts are all in the year 2006, which means that the statute of limitations in Missouri would come into play. But is it possible that the posts were backdated? That might be the case, because the creator of the blog has supposedly been on Blogger, the Google-owned blogging service platform, just since 2008.

The bottom line on all this: It’s quite murky.

And then there’s the issue of confidential data. The company alleges that the blog posts contain confidential information about its executives. But that information is then repeated in the court papers filed in the case. That makes it part of the public record – hence blunting the charge that publishing this confidential information was so horrible or damaging in the first place.

I have a feeling that this lawsuit isn’t going to get very far. That’s kind of a shame, really, because it’s pretty stinky when supposed corporate “dirty laundry” is aired in this fashion. Often, the allegations are hyped way beyond the reality of the situation. In almost every instance, there are two sides to the story – one of which gets short shrift (or no shift at all) in the online postings.

Alas, companies had better get used to the “transparent everything world” in which we live today. And it’s good to heed the warning of TechDirt’s technology blogger Mike Masnick not to become a victim of the “Streisand Effect.”

What’s that? It stems from a multi-million dollar lawsuit brought by Barbra Streisand to remove a photo of her house from the Internet. Not only did her suit fail … it brought far more attention to the photo than if she had ignored the whole thing in the first place.

3 thoughts on “The Huge Challenge of Litigating Content Posted Online

  1. One thing’s for sure: Lawsuits in particular leave an online stain on your personal/business reputation that can be almost impossible to scrub clean — particularly if a legal action is picked up by the press.
    Moreover, search engines can turn even the smallest blemish into a career-ending event or business catastrophe.

    I’m sure we’re already seeing instances of people threatening to ding companies online for some perceived slight unless some “restitution” is made. One can argue that the Internet has more power to destroy than to “create” or “connect.”

  2. This is an interesting case.

    Public domain documents filed in this action can be read and downloaded from Justia ( Search: “Justia 4:2011mc00059” ).

    From the Justia summary: “ORDER; IT IS HEREBY ORDERED that plaintiff’s petition to conduct pre-litigation discovery [Doc. # 1 ] is denied. IT IS FURTHER ORDERED that the Clerk of the Court shall make an entry in the docket terminating this miscellaneous action.”

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