You are on page 1of 4

Cyber Smearing and its Counter Measures

By R Prasun Kumar Naidu


Introduction
The growth of Internet has known no bounds in the current scenario. Due to such a growth, it is
used for serving different purposes which gives birth to different causes of action. Defamatory or
Libelous messages or statements that are published on the Internet through any medium or
intermediary may be actionable. Speech from a multitude of tongues may lead to truth, but it
may also lead to the Tower of Babel. And the level of discourse on [certain internet sites] also
suggests that fostering unmediated participation may make public discourse not only less rational
and less civil; it also runs the risk of making public discourse meaningless. A discourse that has
no necessary anchor in truth has no value to anyone but the speaker, and the participatory nature
of Internet discourse threatens to engulf its value as discourse.
1
Public and Private companies
are frequent target of this kind of attack. There are certain suck sites or gripe sites which are
often used by company employees to post their feedbacks, complaints, post personal accounts,
supervision about their companies.
2

Attributes of Cyber Smear
The motives for cyberlibel range from product boycotts, scams, disparaging rumors and gossip
to furthering political agendas and securities manipulation. Most cyberlibel shares a common
pattern; the common attributes of cybersmear include:
A website or blog detailing the purported injustices committed by the target company,
individual or political organization;
References and/or links to statutes, regulations or other legal sources and/or an
amateur/unlicensed interpretation of the law (conclusions are usually provided as well);
Information or quotes taken out of context or represented in very small segments as to be
presented in a more misleading manner;
Cybersmearers almost uniformly claim to be independent, neutral, and attribute the
purpose for the blog, website, chat room or e-mail as being a public service, protection
of the unsuspecting consumer/customer, concern for innocent victims and the like;

1
Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 Duke Law Journal (2000)
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1071&context=dlj
2
"Think Before You Click: Online Anonymity Does Not Make Defamation Legal", 20 Hofstra Lab. & Empl. L.J.
383, 387 (2003)
Cybersmearers categorize their comments as informational or opinion when in fact,
the statements represent propaganda or libel;
Many of the people who post on such sites post anonymously;
Cybersmear web site operators, for the most part, will utilize SEO (Search Engine
Optimization) so that their sites receive high rankings in search result pages by doing
things such as linking their sites to other sites, choosing key words to include in the titles
of their posts/body of their text and in meta tags so that someone searching for the
company or individual targeted by the cybersmearer will find the cybersmear website;
and
Posting actual e-mails from readers when discussing comments received from readers,
none of which can be verified as actual or all of which comes from fellow perpetrators of
cybersmear.
3

Cybersmearers exploits the power of anonymity endowed to them by Internet. Theres never
been a lack of hostile people with a motive to attack. Aggression is as old as Cain and Abel.
Until recently, very few people had the means or the opportunity. The geometric growth of the
internet has provided attackers with these last two ingredients. One result of the internets growth
has been an upsurge of attacks against people, products and institutions that can be launched
anonymously, and, therefore, with impunity.
4
Understanding the state of mind of the
Cybersmearer gives us understanding that they may have different motives and purposes but they
share certain traits among them. Some of them being:
they have a delusional sense of importance as a result of the number of people they can
reach via the world wide web;
they are generally negative people to begin with who hide behind the notion that they are
simply expressing their opinions, exchanging ideas or providing a public service;
they are typically motivated by revenge against a perceived wrong;
they believe that they are on a mission and that their efforts will either assist a friend,
company or organization that they believe will benefit by the victims demise or benefit
them financially;
they are typically disgruntled in their personal and/or professional lives;
many cybersmearers are dysfunctional people who may have technical skills but lack
practical abilities or have failed in their relationships and professional life; and

3
Ciulla and Donofrio, LLP; http://www.cd-llp.com/CM/Articles/Cybersmear.asp
4
Eric Dezenall, Nail Em: Confronting High Profile Attacks on Celebrities and Businesses, 156, Amherst, N.Y.
Promethus Books 1999.
they always have an agenda and always have a motive.
5

Now, we must try to understand the issues of Cybersmearing through cases. To establish a
prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a
defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3)
the defamatory statement was published to a third person; and (4) the plaintiffs reputation
suffered injury as a result of the statement. Cwelinsky v. Mobil Chemical Co., 267 Conn. 210,
217, 837 A.2d 759 (2004).
Written words are libelous per se if they charge only a single act, provided that act is something
derogatory to the plaintiff in the operation of his business or in the practice of his
professionand if the charge is of such a nature that it is likely to injure the plaintiff in that
business or profession. Proto v. Bridgeport Herald Corp., 136 Conn. at 566-67.
Another cases defines privacy claim for falsifying information- Goodrich v. Waterbury
Republican-American, Inc., 188 Conn. 107, 131 (1982). The essence of a false light privacy
claim is that the matter published concerning the plaintiff (1) is not true.and (2) is such a major
misrepresentation of his character, history, activities or beliefs that serious offense may
reasonably be expected to be taken by a reasonable man in his position.
The Supreme Court of California held last year in Barrett v. Rosenthal, 40 Cal.4th 33, 146 P.3d
510 (2006), that primary publishers are liable for common law defamation on the same basis as
authors but other distributors may be held liable only if they knew or had reason to know of
the publications defamatory content.
Preventive Measures that must be taken
Monitor Postings
A company should attempt to locate all Internet message boards that provide discussion about
the company and create a monitoring mechanism of those sites either internally, through an
outside agency, or through counsel. A corporation may hire a "cyberpatrol" company such as
eWatch or Cyveillance to monitor information online.
Enact Employee Policies
In particular, a company should create policies that prohibit employees from posting messages
about the company when the employees are at work. A company's policy should always prohibit
an employee from divulging inside, confidential information.
Utilize Technology
According to an expert comment- "[e]very click of a mouse leaves behind a digital footprint that
can be traced back to the source of the click." (Goldring, 20 Hofstra Lab. & Empl. L.J. at 385.)

5
Ciulla and Donofrio, LLP; http://www.cd-llp.com/CM/Articles/Cybersmear.asp
And with the appropriate technology, companies can readily identify such a footprint and
attribute it to an anonymous cybersmear poster.
Conclusion
In Indian Scenario, section 66A of the IT Act, 2000 and its Amendment, 2008 covers most of the
issue of Cybersmearing completely. The issues which are not covered by it can be easily covered
through Common Law, Law of Torts. As, Cybersmearing is nothing more than Defamation in
online medium or in cyberspace, Law of Tort is quite competent for dealing with certain
characteristics of Cyber smearing. The preventive measure must also be followed by
organizations in order to protect themselves from the degenerating effect of Cyber Smearing.

You might also like