- Hits: 48447
Sending a pre-action protocol letter following a defamatory publication online
It most cases, a defamation cease and desist letter, would result in the removal of the defamation from the internet. Sending a defamation cease is desist letter is also a defamation claim pre-action protocol requirement, which means your starting point for any defamation claim must be the sending of a defamation cease and desist letter.
Online defamation travels fast and because online defamation is often posted anonymously, your starting point in many cases would be to communicate with the website operator where the defamatory statements are initially posted. If you have found yourself to be the subject of internet defamation or an online reputation attack, you will find that the most effective way of dealing with such an attack is to send a defamation cease and desist letter to the website operators or in some cases to the Internet Service Provider, and ask them to remove the libellous statements. Some website operators are not willing to tolerate online abuse and have no interest in getting involved in litigation, which they have nothing to gain from anyway.
From experience, we have found that a defamation cease and desist letter with direct requests to remove defamatory postings from the website, in many cases would deliver good results without you having to resort to litigation. Under English law, website operators might be held liable to defamatory posts that are posted on their websites by third parties. This opens up two options for potential removals of defamatory posts from a website.
The first option, is for the website operator to simply remove the defamatory website or delete a defamatory post from their website. The second option, is the removal of the defamatory posts by the publisher of the post himself, after the publisher receives a copy of your defamation cease and desist letter from the website operator. These two options are very real and the likelihood that the defamatory posts will be removed or deleted one way other another, following the despatch of a cease and desist letter is high. This might turn out to be a wise strategy because you could achieve your goal of having the defamatory statement deleted from the website by the publisher, without having to make a direct contact with the publisher himself. In the defamation cease and desist letter to the website operator, you can point out to the website operator that you don’t know who the publisher of the defamatory posts is and therefore ask that the website operator passes on your letter to the publisher.
This strategy will enable you to communicate your intentions to take legal action, to the publisher of the defamatory posts, indirectly, via the website operator. Often the publisher, at this point, would decide to simply delete his defamatory post as he knows that there is an ongoing legal action which would result in the disclosure of his identity. Your defamation cease and desist letter to the website operator, should, therefore, include a request, in accordance with Section 5 of the Defamation Act 2013, for the disclosure of the identity of the publisher of the post.
Defamation cease and desist letters might be the only thing you need to do to affect the deletion of defamatory publications from the internet. However, the letter must be drafted property so that your intention to see matters through is clearly communicated to both the website operator and to the publisher of the defamatory posts. A cease and desist letter in defamation needs to be thorough and must provide the potential defendant sufficient information about your complaint and the true legal position, as you see it.
A defamation cease and desist letter should therefore fully adhere to the pre-action protocol for defamation cases and be sufficiently detailed and thorough so that the recipient is left with little doubt that you are in fact intending to see matters through. A half hearted drafted cease and desisted letter, would often send the opposite message; namely that you are not fully committed to take the case to court, if your demand are not adhered to or that you are unprepared to invest legal and financial resources in the matter. A thorough and detailed defamation cease and desist letter might require the investment of some resources but in most cases, this could bring the matter to a speedy conclusion and certainly save you a great deal of time and money later on.
A defamation cease and desist letter should start with a factual introduction of the parties. It should explain who you are and who you are writing to and under what capacity you writing to them. The letter should then set out the facts in a clear timeline. Always start with the earliest and move through subsequent events in chronological order. Then, explain what is the cause of action, under which you are writing your cease and desist letter.
For example, defamation, malicious falsehood or harassment. The next step, is for you to refer to each of the defamatory statements that you are complaining about. State the precise location of each statement on the website and be clear about the part of the statement that you believe is defamatory. Explain why it is defamatory and what is the true position in relation to each of the statements. Once you have listed all the defamatory posts, explain what is the damage that is being caused to you, whether reputational or finical or both.
Finally, be clear about what action you want to website operator or the publisher of the defamatory statement to take in order to avoid escalation of the matter into legal action. List all the remedies that you are expecting to recover if the matter went to court, and if you are willing to offer a carrot to the website operator or the publisher for settling the matter promptly, spell it out.
Make sure that you set a clear timetable, for the full resolution of the matter. You can demand immediate action but in most cases, you should also give at least 14 days for a formal reply. It would normally benefit you if you use a defamation cease and desist letter as a means of trying to resolve the matter as promptly as possible rather than just as a formality that you need to comly with before taking the case to court.