A false and damaging statement about you or your business has been posted online – a review, a social media post, a comment thread, or maybe in a group chat. Your first instinct may be to respond immediately and forcefully. That instinct is usually the wrong one.
Here's a practical guide on what to do in the days after you discover you've been defamed, and where legal action fits in.
1. Don't Engage Publicly
It is usually not a good idea to reply directly to a defamatory statement published online. Don't argue in the comments, and don't post your own “here's what really happened” rebuttal right away. Public back-and-forth exchanges almost always makes things worse. They can also draw more attention to the original statement, and sometimes dramatically more. It can turn a one-off post into an ongoing public dispute, and anything you say publicly can end up being scrutinized alongside the original statement, if the matter ever goes to court. You may end up fanning the flames instead of putting the fire out. For example, see The Streisand Effect.
2. Take Time To Assess the Situation Before Taking Legal Action
It is often a good idea to wait and see if the online post gains any traction or affects you in a material way. Since everyone can be a publisher on the internet, there is a vast amount of material being published on a daily basis. Much of it is forgotten within days or even hours of publication, particularly with social media. A defamatory post can easily be buried and forgotten in the onslaught of daily social media content. A defamatory post that feels like a malicious attack on your reputation and character to you may not even register with most readers. So take a breath and make sure that taking further action makes sense. As the saying goes (back when people read physical newspapers), today’s news is tomorrow’s fishwrap.
3. Preserve Everything
Defamatory content online can be deleted, edited, or made private at any time, and sometimes within hours of posting. Before it disappears, capture it properly:
- Take full-page screenshots showing the content, the date, the author's profile or username, and the platform.
- Note the URL of the post, comment, or page.
- Capture screen recordings for content that scrolls, expires, or is time-limited (i.e. Instagram stories or other similar posts).
- Note the engagement details where applicable – number of views, shares, comments, or reactions, since this can be relevant to damages.
- Note the date and time you captured them.
Do this even before you decide whether you want to pursue anything. Evidence that isn't captured early is often gone for good.
4. Don't Delete Your Own Related Content
If there's a related thread involving your own posts, replies, or reactions, resist the urge to clean it up or delete anything, even if parts of it are embarrassing or unhelpful to your case. Deleting your own material after a dispute has started can raise spoliation issues, and it can also remove context that a court might need to understand what actually happened.
5. Assess Whether It’s Actually Defamation
Not every unkind, false, or upsetting statement online is legally defamatory. Generally, a statement needs to be a false statement of fact (not opinion), communicated to someone other than you, that harms your reputation. A few things worth knowing:
- Opinions are often protected, even harsh ones, as long as it is recognizable as opinion, is on a matter of public interest, and is based on provable facts that are outlined or otherwise knwn to readers. For example, “I think their service is terrible” is different from “they stole my deposit,” which asserts a fact.
- Truth is usually a complete defence. If the statement is substantially true, even if it’s defamatory and damaging, a defence of truth will defeat a defamation claim.
- Context matters. Sarcasm, obvious hyperbole, clearly labelled satire, “mere insult,” or “vulgar abuse” are often treated differently than a factual statement or opinion, and are typically not actionable. This distinction isn't always obvious, which is one reason to seek legal advice early, rather than drawing any conclusions.
6. Consider Filing a Report With the Platform
Most platforms have a process for reporting content that violates their harassment, defamation, or false-information policies. This can sometimes get content removed faster than any legal process would. But a platform takedown isn't a substitute for addressing the underlying harm. It doesn’t correct the record, compensate you for damage already done, or stop the person from posting again elsewhere. Consider it as an additional tool as part of an overall legal strategy, not as a substitute for legal action.
7. Be Aware of Short Limitation Periods
Defamation claims often have shorter limitation periods than other civil claims, and in some jurisdictions there are strict, short notice requirements, particularly for claims involving newspapers, broadcasters, or other mainstream media, where notice may need to be given within weeks of the statement, not months or years. If you wait too long to consider your options, you may lose the ability to file a legal action entirely, regardless of whether the statement is clearly false and damaging.
8. Think About Whether the Author Is Anonymous
A significant amount of harmful online content is posted under pseudonyms or anonymous accounts. It’s often still possible to identify the author through a legal process directed at the platform or internet service provider, but this takes time, can be costly, and is not guaranteed to succeed. Where the harm is serious, it may be worth discussing these issues with a lawyer early on, since evidence and account details can become more difficult to obtain the longer you wait.
9. Send a Formal Demand or Cease and Desist Letter Before Filing Legal Action
In many cases, the first legal step is not a lawsuit. It’s a properly drafted letter demanding retraction, correction, or removal, sent by a lawyer. This accomplishes several things at once: it puts the other side on formal notice, it’s often taken more seriously than a personal message, it can resolve the matter without the cost of litigation, and depending on the jurisdiction, it may be a required step before you are even permitted to sue.
The Real Cost and Benefit of Litigation
Defamation litigation can be effective, but it's also often expensive, public, and slow. A lawsuit can also draw more attention to the original statement. Before committing to that path, it is worth having a candid conversation about what you are trying to achieve – a correction, a removal, an apology, compensation for real financial harm, or simply stopping ongoing harassment. Different goals point toward different strategies, and not all of them require legal action.
This post is general information and not legal advice. If you believe you've been defamed online, contact Iain MacKinnon to discuss your specific situation and any applicable deadlines.