Mark SablemanMark Sableman
A PR firm whose client is being disparaged by anonymous emails may find that a lawsuit is the only way to stop the disparagement. Anonymous disparagers have been found out, stopped, and sanctioned through the civil justice system.

Consider this nightmare PR scenario: your client’s customers, associates, and neighbors keep receiving messages that disparage the client in the worst way – accusing the client of fraud, deceit, and crimes, even child molestation. The messages are anonymous, or are signed simply, “A friend” or “A neighbor.” The messages keep coming, and people keep reading them. They may even be picked up in the media. Your client’s reputation sinks and his blood pressure rises.

This isn’t just a hypothetical. Hate message campaigns like this have happened repeatedly, and are likely to continue happening, given the easy anonymity of the Internet and the nastiness that a shield of anonymity often brings out in people.

There are solutions, which usually require cooperative work by lawyers and PR professionals. In one case I handled, two wrecking companies fiercely competed against one another. Suddenly, one company began seeing its business orders slow down, as it also began receiving critical inquiries from several local governments. The company knew its work was good, and its conduct ethical and legal. It couldn’t figure out why it was having these problems.

Luckily, several friends and officials came forward and showed the company letters they had been getting, disparaging the company and accusing it of dishonest or unlawful practices. None bore a signature or address of the sender—just something like “A Neighbor” or “A Concerned Citizen.”

PR and Legal Problem

It was a dual PR and legal problem, which both professions had to work together to solve. Our first step was finding out who did it, and getting sufficient evidence to support a lawsuit. You can’t bring suit against “A Concerned Citizen,” or “A Neighbor,” or the other false names used by the sender, and you can’t sue someone on mere speculation. We suspected the competitor, but had to tie him to the messages with evidence.

There are different ways to identify the origin of messages. Physical evidence can provide clues. In the pending case in which Marvel Entertainment CEO Isaac Perlmutter is accused of sending out disparaging messages about a neighbor in his gated Palm Beach community, the neighbor claims to have identified DNA of Perlmutter’s wife on one of the envelopes. In some cases, document examination experts can make connections through similarities in handwriting or other physical elements of the document.

In our case, we made the connection from the content and style of the messages. We retained two academics, both skilled in forensic linguistics, but with strikingly different styles and techniques, to compare the writing and typing styles of the disparaging messages to that of known writings of the suspected competitor. Both experts opined that the competitor wrote the messages, and we filed suit based on that evidence. After some initial protests, denials, and threats, the competitor eventually admitted authorship.

Sender Was Identified

Once the sender was identified, he was in deep trouble. Our client’s PR firm let local media know about the case. On the legal front, the sender couldn’t effectively defend the messages, since they were clearly false in one key respect—their signature. Any jury would know that someone who lies about his identity is probably lying about everything else as well.

That case settled, and working with our PR colleagues we made sure the settlement wasn’t confidential. A few weeks later, an account of the case, including the losing party’s payment of $760,000 for what a local judge had called the “hate mail case,” made the front page of the Wall Street Journal.

A recent federal court decision in New York involving alleged false Internet reviews of a laser hair removal business verifies that the strong tools of false advertising law can be used in these situations. The court concluded that because the defendants were competitors of the plaintiff, their disparaging comments on Yelp, consumerbeware.com and other Internet sites should be treated as commercial advertising—and hence legally actionable if they are false. Falsity, of course, is apparent in the case of an anonymous or pseudonymous posting, written by a competitor posing as an ordinary customer.

Few PR professionals want to take their work to court. But when your clients are being battered in the dark by an elusive attacker who disingenuously calls himself “A friend,” a legal team and a judge may be your client’s real best friends.

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Mark Sableman is a media, Internet and intellectual property law partner with Thompson Coburn LLP. He is author of the Internet Law Twists & Turns blog at internetlawtwists.com, the book More Speech, Not Less: Communications Law in the Information Age, and more than a dozen law review articles and book chapters. He has taught Internet Law, and Censorship and Free Expression, at Washington University School of Law