What is Defamation?
Defamation is when someone publishes untrue statements about an individual or business which can cause serious financial and non-material damages to their reputation and can lead to emotional distress, decrease in wages, loss of clients, and an inability to gain employment.
Statements that will always be considered defamatory without the need to prove their harm is called defamation per se. There are four elements of defamation and defamation per se as follows:
|Defamation of Character||Defamation Per Se|
|Someone made a false oral or written statement||Charging the plaintiff with a serious crime|
|The subject of the statement is the plaintiff||Claiming the plaintiff has an abhorrent health condition|
|Someone published or spoke the statement without privilege to others||Charging the plaintiff of sexual misconduct|
|The plaintiff was injured or harmed as a result||Claims that harm the plaintiff’s trade or profession|
When a defamation victim decides to take legal action, they have options. They can either file a defamation lawsuit, or they can start with something less drastic, like a cease-and-desist letter. This letter is sent to the person publishing the defamatory statements, issuing a warning that if the remarks are not removed or retracted, the plaintiff will take them to court to seek monetary compensation for the damages caused. The objective is to confront the defendant and issue a warning. It does not signify a lawsuit; it simply makes the defamer aware of the further penalties that could follow if the behavior doesn’t stop.
This is only effective if you know the identity of the defamer because a wrongful accusation can cause serious backlash. If the perpetrator is anonymous, they will disregard the letter.
Other names for a cease-and-desist letter include:
- Cease and desist notice
- Cease and desist form
- Demand letter
- Stop harassment letter
These examples are all formal letters warning the person to stop their illegal behavior.
There are four situations when sending a cease-and-desist letter might be effective for ending defamation:
Online defamation includes false statements published on the internet where other people can see them, causing serious harm to an individual or business’s reputation, such as:
- Allegations of infidelity and adultery
- Untrue attacks on social media platforms
- Untrue reports on gossip websites
- Untrue negative reviews for businesses
- Statements of fact – If the defendant’s defamatory statement was true, the plaintiff’s defamation claim will not hold up in court. If a customer posts on Facebook that a restaurant has a rat infestation, the restaurant owner may only sue the customer for defamation if the owner can prove that there was no rat infestation.
- Opinions – Under the law, opinions are a privilege. Plaintiffs may not be able to claim defamation against an opinion. However, if a reasonable person may view the opinion as a statement of fact, the court may take a similar stance.
- Alterations – A clear example of defamation is modified photos that harm a person or business’s reputation. Since these photos have the potential to go viral, the more it becomes injurious, the more incriminating the lawsuit becomes.
Online extortion is when someone attempts to obtain money or services by coercion. In the case of online extortion, identification of the extortionist can be found through their:
- Email address
- Bank account numbers
- Telephone numbers
- Messenger IDs
Release or Misappropriation of Private Information
The unauthorized release of private information, such as:
- Identity theft
- Commercial use of one’s identity
- Intellectual property theft
- Patent infringement
- Plagiarizing someone’s work
- Using an invention without the right to access it
- Engaging in illegal or suspicious activity that involves someone’s work
Cease and Desist Letter for Negative Business Reviews
False and/or negative online reviews about your business can have severe negative consequences on your business’s ability to operate and can lead to a loss of opportunities and clients. Business owners are advised to immediately take legal action against a person publishing such online reviews.
Pros and Cons of Cease-and-Desist letters:
|It is a more affordable option and is far less costly than filing a lawsuit||It can draw attention to defamatory statements, further harming the plaintiff’s reputation.|
|Sending a cease-and-desist letter instead of filing a lawsuit can “bypass” the process of litigation||The defendant may ignore the cease-and-desist letter|
|If you do not have a legal claim, or if your legal claim is weak, then you can send a cease-and-desist letter||A cease-and-desist letter could reveal any frivolous claims|
|A cease-and-desist letter will save time||A cease-and-desist letter could reveal that you have a weak legal claim|
What’s the next step?
If the cease-and-desist letter doesn’t work, you can try a cease-and-desist order. A letter doesn’t have any legal standing, but an order does. A cease-and-desist order is granted by a court. The party that receives the order must stop what they’re doing until a trial can be held. After the trial, a permanent injunction may be ordered.
Why Cease and Desist?
There are several cases that might lead someone to issue a cease and desist. These include:
- Character assassination, libel, slander, or defamation
- Trademark infringement
- Copyright infringement
- Patent infringement (Design or Utility)
- Violation of non-competition agreement
- Harassment, including by debt collectors under the Fair Debt Collections Practices Act
- Breach of contract
A cease and desist can also be used to stop contributory infringement, which is when someone contributes to infringement but did not actively participate in it. This can be called “secondary liability” or “contributory liability.”
Trademark, Copyright, and Patent Protections
Trademarks, copyrights, and patents are the three major ways to protect intellectual property. Trademark and copyright apply the moment you are the author of something. They also apply when you begin using a specific brand, phrase, or trade dress in connection with your professional practices. Filing paperwork is optional, but registering your protections holds weight in court.
Patents, on the other hand, are more complex and expensive. They must be registered for protection. They protect inventions, physical creations, and the processes that go into their functioning.
It is illegal to say or print things about other people that are not true or can be harmful to their reputation or ability to engage in gainful activity. You can say your opinion about someone. However, any false accusations can result in legal repercussions under civil law.
For example, saying, “I think that guy is a jerk,” is your opinion. Saying, “I heard that guy engages in shady business practices and will rob you blind,” is character assassination. This applies unless it can be backed up with proof, which is still risky.
Contracts and Agreements
Any time you sign a contract or agreement, you are bound by it. The contract might require certain behavior from you. If you fail to abide by that behavior, you’re in breach of contract. If you agree that you won’t work for a competing business within a certain amount of time you are in breach of contract if you work for a competitor in that timeframe.
Harassment is repeated unwanted contacts or threats.
- Someone calls you all the time
- Someone shows up at your front door repeatedly
- Someone makes mean comments about you in front of other people after you ask them to stop.
Debt collectors can be harassing ways as well. They might call or send letters incessantly and refuse to leave you alone. Any harassing behavior is illegal.
What Does a Cease and Desist Include?
In general, it should include as many details about the violation as possible.
Every letter should also include:
- Your name and contact information
- The name and contact information of the recipient
- A clear statement regarding the actions that you are ordering cease
- A demand to stop
- A warning about further legal action
- A time limit to comply (most people give them 10–15 days to respond)
If it’s to stop a collections agency, include details about the debt they are trying to collect, the account number, and documentations regarding the harassment.
If it’s for copyright, trademark, or patent infringement, include details about:
- The property
- The dates and circumstances of violation
- Proof that you own the property
- The consequences of future violations
If it’s to put a stop to harassment, you should note:
- The date the situation began
- Information about any specific instances that have occurred
- A date they must respond to your letter before you take further action
Be as detailed as possible when documenting the harassment. Send your letter with delivery confirmation or require a signature on delivery to make sure that it was safely delivered and received.
- Use words and phrases that place the offender “on notice” and that you are not afraid to pursue severe legal actions if needed.
- Include relevant case law or statutes in your legal claim. This shows your seriousness and that you have done the necessary research.
- The letter must be strong enough to get the recipient’s attention but must not have falsified statements or be too aggressive or offensive.
Does a Cease-and-Desist Notice Have any weight?
A cease and desist doesn’t have any legal weight, but it establishes that the offender has been warned about their violation. They cannot claim they were unaware they were doing anything wrong.
It places an informal injunction on the actions of the person in violation, who can then:
- Stop their behavior
- Challenge the letter
- Ignore it, and face the consequences of further legal action
If challenged, a formal hearing will be held to review the validity of the demands in the notice. The judge will determine if the defendant must stop the behavior. Failure to comply after that is punishable by law.
What to do if you receive a Letter:
If you’ve received a notice, first determine if it’s real. Check for:
- Legalese (language used on legal documents that is difficult to understand)
- Official stationery of the law firm
- Valid signature
Then, check to see if the letter is on behalf of a corporation or an individual. This will help determine the weight behind it. If the letter includes legitimate legal citations, it is probably an effective and legitimate letter.
Responding to a Notice
If you receive a cease and desist, there are a few options:
- Agree to the letter’s demands and cease the behavior outlined in the letter.
- Respond with a refusal or a request for more information.
- File for a summary judgement by the courts.
- Ignore it and see what happens. That is usually not the best course of action.
If you receive a letter:
1. Do not talk about the letter to anyone but your attorney. This includes mentioning it online. Everything you post online is not only admissible in court, but almost impossible to erase.
2. Keep all evidence to support your side of the argument, including copies of the letter.
3. Think about whether complying with the letter will hurt your business or personal activities. Sometimes compliance is easier than a court battle.
4. Contact your attorney immediately.
After you speak to your attorney, have them draft a response to the letter.
This can help you to negotiate an acceptable settlement, avoid going to court, and protect you as much as possible.
This settlement could be permission to continue business as usual, make small changes, or delay implementation of the cease-and-desist terms so you can have time to re-brand. If you aren’t doing anything wrong, an attorney will know how to clearly state this and back it up to hopefully put the situation to rest.