Legal Niches

This afternoon I spoke at a DC Bar event entitled "Practicing Law in the e-Court of Public Opinion:  How the Internet Can Make Or Break Your Reputation and What You Can Do About It" with David Lat, Carolyn Elefant, Mark Britton, and Andrew Mirsky.  I found it to be a profoundly interesting and educational experience.

David is the editor of one of the most addictive legal blogs around, Above the Law. The site bills itself as "a legal tabloid" but it is a surprisingly insightful view of the legal industry, particularly as it relates to big law firms in America's largest cities.

David is a lawyer by training and a longtime blogger by profession. As you might expect he has a well defined opinion as to how lawyers and people in general should react to negative statements made about them online. His advice: grow a thicker skin.

David himself suffers a variety of crude insults in the comments section of his own site. Visitors have called him "stupid" (I can assure you that he is not - he's a Yale law grad) and "ugly" and suggested that he has a "fat face" but David chooses to ignore this baseless criticism.  (I found such comments, particularly the suggestion that David has a fat face, so ludicrous and humorous that I had to use them, with David's blessing, in the title to this post.)

David pointed out that oftentimes a firm offended by content on his site will draw far more attention to that content by loudly and repeatedly complaining about it. "Don't get into fight with a pig," he suggested, "you both get dirty and the pig likes it. I'm the pig."  Certainly, Above the Law has benefited greatly from publicity generated by firms who took issue with certain information posted to the site.  (David referenced the Nixon Peabody dispute in particular.)

I couldn't agree more with David. Bringing legal action on the basis of negative statements posted on the Internet is an incredibly risky business. Inevitably, a lawsuit (or even a take down notice or cease and desist letter) focuses additional attention on the harmful statement.  If the lawsuit alleges defamation, the discovery process may bring to light other information the plaintiff would rather not have discovered or publicized.

So, when should a lawyer or law firm consider filing suit over defamatory statements posted on the Internet?  Litigation should almost always be a last resort and should not generally be considered unless:

• the lawyer or firm can identify the author of the offending content (with few exceptions, Section 230 of the Communications Decency Act protects the website operator from liability;
• the defamatory statement is absolutely and verifiably false; and
• the statement has caused significant harm or has the potential to cause harm that is catastrophic.

We'll have more information and commentary from this event in the next few days.