In today’s digital age, online defamation can quickly spiral out of control, tarnishing reputations and causing significant distress. If you find yourself a victim of such behavior, your immediate goal is to halt the defamatory actions. One of the most effective and economical strategies to achieve this is by sending a defamation cease-and-desist letter.
What is a Cease-and-Desist Letter?
A cease-and-desist letter serves as a formal request, informing the recipient that their defamatory statements must stop immediately, or a lawsuit will ensue. This letter should precisely identify the defamatory statements, where they are published, and outline the harm caused to you or your business. Our firm’s goal in crafting cease-and-desist letters is to maximize success while minimizing unwanted attention and the unnecessary expense of filing a lawsuit.
Why Issue a Cease-and-Desist Letter?
If your reputation or business is under attack from defamatory content, a cease-and-desist letter might be your best initial step. This approach can quickly end both online and offline defamatory statements, avoiding the delays and expenses associated with litigation.
The letter formally puts the defamer on notice that their statements are false and defamatory. If they do not remove the defamatory content despite the cease-and-desist letter, it may help you prove actual malice or willfulness, which may bolster a claim for punitive damages.
Another reason to send a cease-and-desist letter is that it can establish the groundwork for a future defamation lawsuit. First, in some instances, a letter is required prior to filing a lawsuit. Section 770.01, Florida Statutes, requires that, “[b]efore any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.” Therefore, the cease-and-desist demands we send out are also intended to satisfy that statutory prerequisite. If a letter is necessary but is not sent properly, the lawsuit may be immediately dismissed for failure to meet that condition precedent.
Furthermore, if the defamer responds (either on their own or through an attorney) to the cease-and-desist letter, it can give you an idea of what potential affirmative defenses they will raise in court. Showing that they received but ignored your cease-and-desist letter can prevent the defendant from claiming that they were simply ignorant of doing anything wrong.
Why not just immediately file a lawsuit?
Although a cease-and-desist letter is not a court order, it serves as a stern warning that you may file a lawsuit if the defamer does not stop. If the defamer takes the letter seriously and stops their harmful or unlawful behavior, a cease-and-desist letter can be a much faster and more affordable alternative to litigation, which is extremely costly, can continue for years, and has an uncertain outcome.
Furthermore, when you file a lawsuit, all the details therein become public record; sometimes it is best to keep things simply between you (and your attorney) and the defamer (and possibly their attorney)—rather than airing your dirty laundry for the public. Other reasons not to jump into filing a lawsuit may include that your claims may not be legally robust, or, depending on the circumstances, the defamer may file potential counterclaims. These are issues that we can discuss with you in more detail.
How Does a Cease-and-Desist Letter Work?
When you send a cease-and-desist letter (or when your attorney does it for you), you demand that the offending party stop their behavior immediately and refrain from repeating it. Many times, the letter will also include a take-down demand, requiring that the offending content be removed from the Internet. Although the letter itself isn’t legally binding, its strength lies in persuading the recipient that removing the defamatory content is preferable to facing legal consequences.
What does a Cease-and-Desist Letter Include?
The letter will include a notice of representation, identifying who our client is and that we have been retained to represent you. Next, we describe the relevant facts, detailing the false statements, including dates and locations, as well as any other relevant facts. Many times the matter is much more complex than a simple statement made online, and often will include more legal issues than defamation—and possibly other legal claims—so the facts will be dependent on your unique situation.
We will give a detailed breakdown of the legal claims, citing to case law and analyzing the facts to that law: explaining why you have a legal claim against the defamer and what causes of action you have the right to sue for. Again, this section will be specific to your unique circumstances.
Finally, we present a demand, which generally includes a demand that the defamer cease and desist defaming you and that they take down or remove specific statements from public viewing. Sometimes, where there are overlapping issues of harassment, we will also demand that they stop communicating with you. The demand will be specific to your unique circumstances.
Should I Send the Cease-and-Desist Letter Myself?
While you can send a cease-and-desist letter yourself, it will not be taken as seriously as one that comes from an attorney, which adds to its credibility. One purpose of hiring an attorney is to show the defamer that you are taking the matter seriously and will not hesitate to file a lawsuit if the defaming conduct does not immediately stop. You also want the defamer to take the matter seriously. Many times, defamers will fail to take seriously demands made directly by their victims.
Another reason to have an attorney send the demand is for you is to minimize contact with the defamer. A cease-and-desist letter can, potentially, be perceived as harassment if it is overly aggressive or unfounded. In Florida, “harass” means “to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” Having an attorney send the letter for you can help to mitigate this risk and can help to ensure that its language is firm yet diplomatic, reducing the risk of unwanted attention.
Frequently Asked Questions
► How do you send the cease-and-desist letter?
We ordinarily send cease-and-desist letters via certified mail, with return receipt, to prove they were received, as well as regular mail (in case the certified letter is not picked up) and email (for immediacy). Occasionally, we will send them via special process server.
► Can a cease-and-desist letter escalate the situation?
Many clients fear that the defamer might choose to post screenshots or share the letter online to boast. While this can be a legitimate concern, it is much more likely to happen if you send out the letter on your own. It is not a result we typically see with our carefully crafted letters. Our goals include showing the other party that you are taking the matter seriously—and to get them to take it seriously. In most situations, our letters meet this purpose.
► Are Cease-and-Desist Letters Public Record?
No, these letters are not public records, though any subsequent legal action may be.
► Are Cease-and-Desist Letters Legally Binding?
No, they are formal requests but can lead to legal action if ignored.
► What is the Cost?
Because we typically bill for our time, costs can vary depending on the unique circumstances, as some matters are more time consuming than others.
► How Do Your Cease-and-Desist Letters Differ from Those Sent by Other Attorneys?
Attorney Conlin has extensive experience in defamation law, combining legal expertise with a strong background in journalism. Our letters are meticulously crafted to be effective, ensuring accuracy and thoroughness. We also share the draft with you prior to sending it out to ensure that the facts are correct and that the demand is what you want, and we do not send it out until you approve it.
► What Should I Do if the Defamer Responds Negatively to the Cease-and-Desist Letter?
If the defamer responds negatively, it is important to consult with your attorney before taking any further action. We can provide guidance on the next steps, which may include the option of filing a lawsuit.
► Is it Necessary to Send a Cease-and-Desist Letter Before Filing a Lawsuit?
In some situations, sending a cease-and-desist letter is a required step before filing a lawsuit. It serves as a formal notice to the defamer and gives them an opportunity to stop their behavior.
► What Should I Do if the Defamer Ignores the Cease-and-Desist Letter?
If the defamer ignores the letter, one simple option is to send a second notice. However, if that is ignored, you may need to consider litigation. We can help you discuss this option if the situation arises.
► Can a Cease-and-Desist Letter Help with Other Issues Besides Defamation?
Yes, cease-and-desist letters can be used to address various types of unlawful behavior, including harassment, intellectual property infringement, tortious interference with business relations, and breach of contract. These are issues that we evaluate when working on your matter, so we can tailor your letter to address the specific issues at hand.
► What if the Defamation is Anonymous?
If the defamation is anonymous, you may need to take additional steps to identify the defamer, such as filing a John Doe lawsuit. We can guide you through this process and help you determine the best course of action if necessary.
► How Long Does it Take for a Cease-and-Desist Letter to be Effective?
The effectiveness of a cease-and-desist letter can vary. Some defamers may stop their behavior immediately, while others may require further legal action.
Conclusion
Cease-and-desist letters are a powerful tool to combat online defamation. Working with an experienced attorney ensures the letter is effective, minimizing risks and maximizing your chances of resolving the issue swiftly.
For more information or to explore your options, contact our office at 407-965-5519 or fill out our online contact form.
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