Most internet defamation occurs on third-party websites, often through false reviews. However, some people are so intent on disparaging other professionals or companies that they will go as far as creating their own websites, registering carefully selected domain names and publishing content through them that is calculated to cause harm to those other people or companies.
These individuals often register domain names that are identical or confusingly similar to the trademarks belonging to the targets of the websites. Thus, in addition to the defamatory statements published online, there is also potential trademark infringement-related harm.
Like with more ordinary instances of online defamation, parties defamed through such websites located at the specially-registered domains can pursue the authors of the harmful content through traditional legal techniques. However, in these instances, a defamed party might even seek to have the identical or confusingly similar domain names transferred to them (or just cancelled altogether).
This is a possibility under the Uniform Domain Name Dispute Resolution Policy (often abbreviated as UDRP), which is governed by the Internet Corporation for Assigned Names and Numbers (ICANN) and incorporated into each registrar’s domain registration agreements. Specifically, an affected party can initiate a UDRP proceeding and aim to convince a neutral single- or three-member panel to rule in its favor.
‘Bad faith’ under the UDRP Policy
According to paragraph 4(a) of ICANN’s UDRP Policy, a complainant must prove the following three things to obtain an order that a domain name or multiple domain names should be transferred to them (or cancelled):
- that the registered domain name(s) must be “identical or confusingly similar to a trademark or service mark” in which the moving party—the complainant—has rights;
- that the owner of the domain name(s)—the respondent—does not have “rights or legitimate interests” in the domain name(s); and
- that the domain name(s) must have been registered and are now being used “in bad faith.”
Regarding the third prong, in particular, paragraph 4(b) of the UDRP policy lists four sets of circumstances which can be demonstrated as evidence of bad faith registration and use:
- registering domain names with the primary purpose of selling them back to the trademark owners, or perhaps their competitors, for profit;
- registering the domain names to prevent the trademark owners from owning and using them;
- registering the domain names primarily to disrupt a competitor’s business; and
- registering the domain names to intentionally attract web traffic through consumer confusion.
It is important to note that—like the bad faith factors in the Anticybersquatting Consumer Protection Act—this is not an exhaustive list of examples of bad faith. See Milstein v. Doherty, Case No. FA1511001647496 (Nat. Arb. Forum January 11, 2016) (“It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.”)
Thus, parties that have been defamed on one or more websites located at domains specially-registered to disparage them can still obtain the transfer of those domain names upon proving each of the required elements – including bad faith.
Proving bad faith in the defamation/disparagement context
Respondents in UDRP proceedings will almost always argue that their speech does not violate the UDRP Policy. Given that “gripe” websites are frequently found to be legitimate uses of domain names, complainants must put forth strong evidence in support of their defamation/disparagement arguments, highlighting the egregious nature of the attack on their reputations. Complainants must show that website goes beyond legitimate criticism.
In an often-cited 2001 decision involving a respondent who registered a domain using complainant’s exact trademark as its domain in order to attack the complainant, the panel ruled in the complainant’s favor, finding that the respondent had registered the domain “with a view to causing damage and disruption” to the complainant. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001).
A complainant can also demonstrate bad faith by showing it is the victim of a widespread attack campaign, with the respondent registering multiple domain names for the purpose of disparaging the complainant and causing other harm.
In the above-cited Milstein decision—which involved just one domain name, consisting solely of the complainant’s first and last name—the panel noted how “unsuspecting” internet browsers can easily by diverted to websites containing defamatory content. Thus, it is easy to imagine how having defamatory content on multiple websites, each listed in search results, can greatly harm a person and his or her business.
In short, while defamation is not explicitly listed in the UDRP policy as an example of bad faith—after all, criticism is protected speech under the First Amendment—a defamed party can certainly make its case to a UDRP panel that the domain name registrant’s actions amounted to bad faith.
Again, bad faith registration and use is just one of three prongs that must be satisfied in a UDRP proceeding, but it is one on which many complaints often fail. That being said, if a complainant has a winning argument and can prove each element, this can result in the panel ordering the transfer of the respondent’s domains by the registrar (e.g. GoDaddy) to the complainant after 10 business days.