Dealing With Defamation Via Social Media
Posted on 03. May, 2011 by editor in Business Advice, Business News
There is no doubting that the past few years have seen a major increase in the use of social media channels in relation to business. Twitter, regular blogs and even Facebook have become a familiar part of the marketing and PR strategy for many companies. However, with the increased use, comes a greater risk of attracting negative and sometimes defamatory comments against you and your business.
Here, Daniel Harley (pictured), commercial litigation solicitor at Nottingham law firm Rothera Dowson, advises on the best approach to tackle such unwanted attention.
The age of social media certainly makes it easier for defamatory statements to be made and impact upon businesses and it is something that all members of staff should be aware of. By their very nature, social media channels are accessible to all and are usually free of charge, making it easy to publish any comments at the push of a button.
If you are unhappy with something posted online, firstly, you need to establish if the remark is actually defamatory. Its broad definition, as set out by the case of Sim v Stretch in 1936, is ‘words or matter containing an untrue imputation against the reputation of a claimant which is published to a third party which tends to lower the plaintiff in the estimation of right minded thinkers of society generally.’ In essence, will the comment have a negative impact on your reputation in the eyes of the general public? If so, it is probably defamatory.
Defamation can either be classed as libel or slander. Libel is the action against publication in a more permanent form and the claimant does not have to prove that they suffered loss as a result to bring the action. Slander, on the other hand, refers to publication in a transient form and, generally, the claimant must prove that actual damage has happened as a result before proceedings can even be issued.
It is interesting to note that there have been cases in which online comments of a “conversational” nature have been found to be more akin to Slander than Libel, so the fact that the statement is written does not necessarily mean it will be libelous, particularly in the context of social media.
It is often best to seek legal advice to establish what type of defamation, if any, has occurred and what you must establish if you are the victim. A solicitor will also be able to explain the defences that may be used against any claim if you are alleged to have defamed someone.
It is also important to know who can be sued if a problem arises. The author, editor, publisher and ISP / host can all face legal action, so the implications of making a defamatory comment can be quite far reaching. There are complex definitions as to who, for example, the “Publisher” is, but generally anyone who has a hand in producing the defamatory statement or communicating it to the outside world can be liable.
So, what approach should be taken if you feel that a defamatory statement has been made? I would suggest taking the following course of action as quickly as possible:
Identify and contact the author
Contact the ISP / host / moderator
Think twice before responding online as it could well provoke more of a reaction and bring other users in on the discussion
If none of the above steps work, then you can make an application to Court for an Order for Damages and possibly an injunction, depending on the circumstances. If the negative comments are part of a prolonged and sustained campaign, then a claim under the Protection from Harassment Act 1997 is also an option. Most importantly, if you are unsure on any of the procedures, seek legal advice at the earliest opportunity.
As well as being reactive to unwanted comments and remarks, businesses should also be proactive in order to avoid the defamation minefield.
The use of social media is often something that is overlooked when it comes to staff training, but as we have already established, proper use is vital. Make sure staff know how and when they should be using it by laying out clear social media guidelines.
If you are on Twitter, either with your own account or a corporate one, I would certainly make everyone aware of the dangers of the use of the ‘retweet’ option. This gives users the chance to repeat another users comments to their own followers. If the original comment is considered defamatory and you are seen to be repeating it, then you could well become subject to legal action yourself. Although we are yet to see a case like this, I cannot help but think that it is becoming increasingly more likely.
Another thing to consider is a review of the company’s complaints procedure. The source of negative comments is usually disgruntled customers or clients. If proper procedures are in place and they feel that any grievance is dealt with quickly and effectively, then they are unlikely to feel the need to broadcast their problem to a wider audience.
A strong online presence could warn off any potential troublemakers. If you are seen to be continuously engaging via social media, it demonstrates that you are in a position to react quickly to online remarks, which could therefore put people off posting them in the first place. Also, if you do have a positive online presence, the negative impact from any defamatory comments that are made should be balanced out by the good.
Finally, I have also seen some companies making use of reputation managers. This is a viable approach but if you have you have a good online brand in place to start with, their services should not be required. Ultimately if the comments remain and continue to cause harm, you will need to consider Court action for its removal.
Negative comments can quickly damage the reputation of a business and now, thanks to social media, can quickly spread to a much wider audience. Prevention is inevitably better than cure, but if the worse does happen, make sure that you are in a position to act quickly and seek the necessary advice.
For further information on this and other commercial litigation issues, please contact Daniel Harley by emailing d.harley@rotheradowson.co.uk. More details on Rothera Dowson can be found by visiting www.rotheradowson.co.uk.
