What to do if someone sues you for something you posted online

This is a short guide for people who run a website and have just received a letter from a lawyer complaining about it. I am not a lawyer and this is, by extension, not legal advice. However, I’ll tell you some things lawyers wouldn’t, and possibly save you some bother in the process.

How do I know what I’m talking about? In 2012 I was on the receiving end of a threatened libel suit for something I wrote on my blog. If you’re not familiar with English libel law, it is nasty. Though what I wrote was true, if it had gone to court I would have had a hard time proving it and therefore the court would likely have ruled against me, leaving me with a damages bill of several thousand pounds.

As implied above, I’m familiar with the law of England and Wales, but much of this advice is generic enough to apply to all jurisdictions.

Know what you’ve received

If you’ve come here having just received a scary-looking piece of paper in the post, the chance that you’re actually being sued is extremely minor. If you don’t have a letter from a court yet, only from a lawyer, you’re not being sued — they’re only threatening to sue you. It may seem like a trivial difference but it means you’re not actually on the hook for anything yet. Anyone can get a lawyer to send a threatening letter to anyone for any reason — even if the reason is obviously legally baseless.

Threatening letters to internet publishers generally come in two kinds: the cease-and-desist letter and the DMCA takedown notice. In both cases they’re asking you to stop publishing a webpage and take it down from your site, and implying that if you don’t, they’ll sue you and probably demand that you pay them a lot of money.

DMCA notices are to do with copyright. If you’re not in the US and your site definitely isn’t subject to US jurisdiction (i.e. you are absolutely certain that it is not hosted on a server in the United States), you can pretty much safely ignore anything with ‘DMCA’ or ‘Digital Millennium Copyright Act’ written on it, unless it also names some other law which is more likely to be relevant to you. If you are in the US, the good news is that a DMCA notice is about the least threatening kind of threatening letter you can get, and there are plenty of guides for how to deal with one — search Google for more information.

You might not need a lawyer

A lawyer would advise you that you always need a lawyer, but depending on what course of action you’re willing to take, you might be able to get away with not having one. If you do end up having to get one, they might complain that you should have gone straight to them — but lawyers are expensive and it’s perfectly reasonable, if you can’t afford one, to try to sort things out yourself first.

If you received a DMCA notice or a cease-and-desist letter with no mention of damages, or an explicit promise that if you cease and desist there will be no damages, and you’re willing to take down whatever they want taken down, you can just take it down, write them a polite letter back telling them you’ve done it, and that will (hopefully) be the end of it.

In other scenarios (including a cease and desist where damages are not ruled out), you’re more likely to need a lawyer. If you don’t see any reason to take this — if what you’ve been doing that resulted in the letter doesn’t seem very obviously illegal to you, and thus you’re less willing to stop — you should probably get a lawyer.

However, it’s also not unreasonable to try to resolve things yourself. It’s possible that the claim made against you is entirely baseless — they might be accusing you of something you have definitely never done, for example. In this case you should write a short, polite letter back explaining your argument. Don’t try and use legal arguments unless you’re absolutely certain of their validity — just explain why you think what you’ve done is okay.

The reason this sometimes works is because some law firms send out hundreds and hundreds of letters automatically, hoping that at least one of them will lead to some money. The automated systems sometimes mess up, and if it’s obvious to a human reviewing your case that you’ve done nothing wrong, you’ll be okay.

One thing you should never do without a lawyer is get into a long back-and-forth of letters between you and someone else’s lawyer. One letter from you personally is generally enough before you should start calling an expert. If the response to your short, polite letter is anything other than an apology and a notice that you won’t be bothered about this again, the next letter you write should be of the following form:

Dear Mr Smith,

I acknowledge receipt of your letter of 31st September 201x. I have decided to take legal advice in this matter.

Please await a response from my legal representative.

Yours sincerely, (etc)

Then seek legal help, and direct all future correspondence with them through your lawyer.

Make copies of all correspondence

When you do seek legal help, they’ll want to see what letters you’ve sent and received so far. If you reply by post (which I recommend), you should print your letter, sign it, photocopy it with your signature, and then send it — with recorded delivery so you know for certain that it arrived.

Store the photocopies safely, along with the originals and some photocopies of all the letters you received, and hand them over to your lawyer when you find one. Keep some copies yourself in case you have to change lawyer.

Back everything up

It’s possible nay probable that you are not the only one who has heard or will hear about your issue. Your web host (whether it’s a blog provider like Tumblr or Wordpress.com, shared space like NearlyFreeSpeech.net, a VPS or a dedicated server provider) will probably also be asked to cease and desist from distributing whatever it is that’s being complained about. Their own policies for dealing with this will vary from the helpful and co-operative to the downright rude.

I had a legal issue with a server in 2013. The server’s host, OVH, mysteriously suspended the server one Friday evening and I had no idea why until Monday, when the news broke that someone I had lent server space was in legal trouble. They deleted all the files on the server, presumably assigned it to someone else, and refused to speak to me about it.

Back everything up. Back your whole site up onto a disk you physically own (like an external USB drive), then make multiple copies and put them in safe places. Encrypt them if you like. Be paranoid, because they really might be out to get you. You should be doing this anyway, but the moment after you received a scary letter is the moment to start if you haven’t already. It is possible your whole site will get wiped, fairly or not (probably not) and you need to have a way to restore it even if nobody will co-operate with you.

Who you gonna call?

When you do need a lawyer, make sure you get a competent one. In the US you can ask the Electronic Frontier Foundation for help; even if they aren’t willing to provide assistance themselves, they might put you on to someone who will. In the UK the equivalent is the Open Rights Group.