What Can Someone in Baltimore Do To Stop Online Defamation or Invasion of Privacy?
Maryland substantive law defines conduct that is considered either defamatory or constitutes an invasion of privacy. The elements necessary to establish a valid claim for each are discussed at length elsewhere on thekirklawfirm.com. What I Attorney Eric T. Kirk have seen over the years is that offending, wrongful conduct, at least in an online setting, typically occurs in one of four settings.
The first paradigm is where an identified person makes direct harassing, annoying intimidating, frightening or threatening statements. Rather than posting online, the assailant chooses to use a form of electronic communication such as direct or instant messaging, text messaging, or emails. The second scenario – no doubt equally troubling to the recipient of such unwanted communications -is one in which an anonymous and unknown individual, rather than posting scurrilous material online, contacts the victim directly by making actionable statements [i.e. one you can sue for if there is damage] or under circumstances which could be actionable, and uses electronic communication directed to the recipient/victim. The first situation is most analogous to more traditional stalking or harassment in the criminal realm, punishable potentially under Maryland’s criminal code in addition to creating a civil claim. A third scenario is one in which there is a known or identified individual who posts -by creating or forwarding- online content that is considered either defamatory, an invasion of privacy, or both. The final situation is one in which an unknown individual has posted content anonymously online that is either defamatory or could constitute a cognizable invasion of privacy under one of the four theories recognized under Maryland law. This scenario is indeed the most troubling of the four potential situations discussed here-for both lawyer, client, and anyone who may subsequently be the target of such anonymous, harmful and damaging attacks. It may well be that in this situation injunctive relief is not only called for, but might be the only method of full protection, and vindication. The issue, of course, is that if there is no identifiable bad actor, injunctive relief is impractical or impossible. The burdens, and indeed the obstacles, facing the victim of anonymous online posting are substantial. The anonymous poster must first be identified, served, and hailed into court. The victim must then demonstrate an entitlement to damages under either defamation, or invasion of privacy theory, or both, and must also convince the court that the requirements for injunctive relief have been shown. These twin hurdles of winning the lawsuit, or suits, but only after having to first identify the anonymous individual responsible for the online posting can be daunting. This article addresses each of these scenarios
Offensive Electronic Content From a Known Individual Sent To The Target
Let’s talk first about the most facially straightforward of these four scenarios. A known individual, engages in a pattern of false, malicious, embarrassing, annoying harassing electronic communications, whether email, text message, direct message or some version thereof. Although I’ve chosen to use the label “straightforward” to describe this situation, there is no doubt the victim here most certainly would never consider this type of conduct benign, clear, or simple in terms the ramifications consequences, and sequelae of such conduct. On that score, three observations come into play. One: the “audience” here is limited to the target of the communications. This may be of little solace to the target, but, the more limited the audience, the more limited the exposure of false or malicious content. In other words, if the communications are defamatory, or otherwise scurrilous, a private and limited audience is obviously significant in that no third parties are exposed to -or might believe or spread the objectionable material. Secondly, insofar as there is a known, identifiable perpetrator, the steps to stop such conduct, and obtain relief -monetary and non-monetary- such are more direct and clear. Moreover, the remedies, at least in theory, have a higher likelihood of success. Finally, let’s analyze for a moment the typical fact pattern that I’ve seen involving a known perpetrator directly contacting the target of the communications. This is a paradigm where the defendant repeatedly, and without a justifiable legal purpose, sends a series of emails, text messages, or another form of electronic communication, to the victim, where the perpetrator is known. Here, certain proactive, remedial measures might be easy to undertake – i.e. blocking an individual from emailing or texting, in addition to the other remedies discussed below. The final jot of good news is where one is dealing with statements or a series of statements made by a known person directly to the target of those statements only, it is unlikely to be a case of defamation [unless someone found that there were other recipients of these communications].
In these situations, my recommended “first-step” method of drafting and serving a cease and desist letter has the highest chance of success. There is an identified and known perpetrator. A communication to them seeking a cessation of all contact might be, both and likely is a prerequisite, and certainly would be to any criminal action [i.e. letting the individual know that the continuing contact is both welcome and unwanted.] If the bad actor [i.e. the defendant] fails to desist, legal action in the form of an order of the court directing the person to stop their harassing, vexatious conduct may be sought. In addition to potential criminal consequences, or seeking injunctive relief from the court, the victim in this situation might elect to pursue a claim for money damages for the anxiety, stress, consternation aggravation, and potentially other personal injuries and deleterious emotional consequences that result from the course of continued, unwanted, unwelcome and malicious contact. The legal theory that best fits these facts in my judgment is that of intrusion upon seclusion.
Electronic Content From an Anonymous Individual Sent To The Target
The second archetype involves an unknown perpetrator directly contacting a victim with vexatious, harassing content. In this fact pattern, obviously, the first and vital component of any potential legal action must be to identify the source or origin of the communications. Because, in this scenario, the target of the scurrilous or harmful or offensive statements is the only known recipient, legal claims such as defamation, unreasonable publicity given to private life and the like have no applicability, as there is no widespread, public dissemination of the objectionable content. Moreover, because a series of ongoing, vexatious harassing communications from another individual may constitute a crime, the individual victim has the possibility of pursuing, or asking the State to assist and come to their aid in locating the individual to be prosecuted, and ultimately initiating criminal charges against the defendant. When dealing with the specter of an unknown, online assailant, law-enforcement agencies generally have mechanisms available under various pieces of federal legislation that a private individual simply would not in terms of gaining information about an account holder or potentially, depending on the factual circumstances, the content of the harassing communications. The circumstances confronted by the victim of anonymous online harassment are markedly different from those where the defendant is known. Where the individual is unknown, there simply is no way to predict or to foresee where the next scurrilous, harassing or harmful communications might come from. The savvy assailant might use a “burner account”, or another fictitious handle, or username, or email address to send the hurtful, damaging harmful communications. Because of the hurdles presented to a private litigant by federal law, and otherwise, in identifying the maker of actionable statements, the only viable recourse may be a criminal, as opposed to a civil, action, to stop the conduct.
Online Content Posted or Disseminated by a Known Individual
A third scenario is one in which a known person publishes vituperative and potentially actionable material online. This scenario at work here is that someone sends or posts a statement of fact, online, that is untrue. The poster has no justifiable purpose in publishing such information. In fact, they are at fault in disseminating this information or posting it. This is a situation that, frankly, simply may not arise all that often. Although- it clearly does happen. Individuals are certainly free to express their thoughts and opinions on events or other people -and frequently do so. However, where a poster takes a controversial stand, or, indeed makes statements that could be legally actionable, my experience would indicate they are typically unwilling to sign their names to it. Indeed, it is fairly common to see an individual author a controversial post, and then later “take it down” once the backlash commences, or, occasionally, take the position that someone ‘hacked their account’, impersonated them, and made actionable statements posing as them.
Where the maker of the statement is known, and unabashedly or not, admits it- the legal steps are clear. A cease and desist letter and demand for retraction must be prepared and served on the poster. The terms of the letter would be broader than the simple cease and desist. I would direct a simple cease letter sent to a known attacker who is contacting only the victim of the statements, directly, and demand they stop. The letter, and the demands contained in it, used in this scenario is broader, for it also includes a component insisting upon, indeed demands a retraction of the offensive material. In insisting upon a retraction, I require a written statement that the poster admits to making such statements, as well as one of two additional admissions. Either that they were false when made [an obviously unlikely admission] or, more practically, that the maker of the statements admits in writing that the posts were based on faulty information possessed by the individual which they no longer stand by, adhere to, and that in fact that they do not believe. The alternative admission is that the source of the information relied upon it has subsequently been determined to be wholly untrustworthy.
Whatever the reaction to the cease and desist communication, that is only the first step. If the material published online meets the definition of libel, i.e. an untrue statement of fact published -in this case online -with the requisite degree of fault and ensuing damage, the conduct might be actionable under a defamation theory. If the statements concerning private matters which should remain private, there may also be an action seeking money damages for invasion of privacy under either an unreasonable publicity given to private life theory, or, potentially, an intrusion upon seclusion theory. In addition to the pursuit of monetary damages, the injured individual may also seek injunctive relief. Here the court would be asked to issue an order directing the responsible person to take down the offensive posts, and also to refrain from making any similar posts during dependency of the litigation, or, indeed, in perpetuity.
Online Content Posted or Disseminated by an Anonymous Individual
The final scenario is, for all of the obvious reasons, the most vexing for the targets of the communications. Here, an individual victim, rather than being contacted directly, is instead the subject of abusive, derogatory and pejorative content posted by an unknown assailant who, of course, refuses to put their name to it. In this most challenging scenario, the victim faces the twin evils and twin dangers of both widespread- indeed potentially limitless- exposure of the harmful material, while at the same time not knowing who is spreading the damaging content. While injunctive relief might be available to such a person, it might be difficult to obtain. An injured plaintiff must at a minimum first identify the person whose conduct is to be enjoined. In this paradigm, again, if the content is such that it may separately constitute a crime, the aid and assistance of law enforcement in identifying, potentially stopping and prosecuting the offender/poster is possible. The truly vexatious situation exists where the content may be is actionable civilly- but not a crime, or where the State does not prosecute. In a scenario where the content is actionable civilly, but would not constitute a crime, the victim faces the daunting prospect of both having to identify the perpetrator and then separately successfully suing that perpetrator for injunctive relief and money damages.
It is a perilous position. The victim in this circumstance lacks the possibility of enlisting the aid of law enforcement in identifying the perpetrator/poster. It is often said, and indeed has become somewhat axiomatic in our culture, that online content never truly disappears. A very sensible, and unfortunate, corollary to this axiom, is that if something is online you’ll never know how many people have seen it or heard about it. If a bad actor posts information of a scandalous or intimate and private nature about another online, a victim likely will never know the full extent of the dissemination. If an individual chooses one outlet to post their damaging material, it may be impossible to know how many people saw that post, how many people heard about that post, how many people discussed that post, how many people took a screenshot of that post and sent it on, or disseminated and re-published it in myriad ways. The frightening extrapolation is that if it exists in one online forum, the damaging material may exist on countless unknown, and unknowable, online fora. There is no guarantee that the malicious actor making the post chose to use only one outlet for the content. They could’ve used several- none of which are known to the victim. In scenarios with multiple posts, it is likely more people saw the content, more people discussed the material, and that more people re-posted or forwarded the pejorative content. All of these variables may never be known to the victim.
It is this specter of widespread dissemination of hurtful, harmful damaging, private content -the full extent of which might never be known- that speaks to and informs the anguish and turmoil every victim of such statements will no doubt experience. It’s commonplace for individuals- and this does not appear from the statistics to be related to age or generation- to maintain both a personal online presence and situationally, a business or professional online presence. Indeed, it is routine unfortunately routine in our society for individuals to police what people are saying about them online or enlist the aid of a professional to find and possibly clean up information that is being published about them online.
Where the content disseminated by others is harmful, or potentially so, it is in this scenario that the target almost certainly must retain an experienced attorney to both take steps to identify the anonymous poster, and also those additional necessary steps to prevent further damage, and seek compensation for the existing wounds.
