Defamation on social media – when all publicity is NOT good publicity

25th September 2019

Social media has profoundly changed our communications, personally and professionally. In Cheltenham and worldwide, there are billions of active users, all of them sharing information, but sadly businesses and their employees are increasingly becoming victims of malicious reviews and comments on social media forums.

Not all comments will amount to defamation. They may be valid statements of opinion or made by someone who genuinely believes that what they are saying is true. But, when the comment is made maliciously, with a clear intention to damage your reputation, action should be taken.

The extent of any reputational damage caused will depend on how accurate the comment is, the number of people who see it, and how long it remains visible. A court action may not be the best or only answer to the comments, especially when it is necessary for a business to show that it has suffered, or will suffer, serious financial harm.

So when faced with a derogatory post, it is important to react appropriately. A damaging comment on social media can represent a crisis, especially for the reputation of your business. So you should establish a policy for dealing with such an event when the worst happens. Here are some practical steps to take:

1. Monitor

With over 510,000 comments being posted on Facebook every minute, a comment can quickly turn into a crisis. One ‘like’ or ‘retweet’ of a negative post will be seen by others and before you know it has gone viral. So you need to monitor comments being made both on your own web pages and more widely.

Set aside time to do this, bearing in mind that most comments are made between 6pm and 8pm during the week, with more activity on a Thursday and Friday.

Automated monitoring will help. Google My Business will send notifications of a new review to the person set up to administer the page, and you can set up Google search alerts using keywords that feature your business’ name or key members of staff, with settings for frequency. Facebook will also advise when the user profile has been used in a comment, or when a page you operate has had a new comment. These notifications need to be directed to someone who regularly checks their inbox and knows what to do when a crisis arises.

2. Train for the worst

Your staff should be made aware of your own social media policies and what steps they should take if they see negative comments about the business.

3. Stick to the plan

Put a plan in place for dealing with negative comments and nominate someone to lead that plan.

That plan will need to establish the source of the comment and access relevant information held about the source to help understand why they made the comment. Establish if there is an existing grievance or complaint, and then review to establish if the comments are true or defamatory.

It may not always be necessary to consult with your solicitor, but a quick call to them may well put your mind at ease.

If you have already used the services of a PR agency, depending on the seriousness of the comment, you may want to give them a call before responding or releasing a statement addressing the issue.

4. Don’t react in anger

As tempting as it might be to respond immediately, pausing to assess the situation before acting is important.

Until you can understand the reason the individual had for making the comment, replying may only make matters worse.

Constructive feedback should be encouraged by providing positive responses. If the comments are not too inflammatory, you may wish to invite the individual to discuss matters privately, because any reply will be seen by the same public.

However, on many occasions, it is the reaction that the person wants. Feeding that desire may only lead to further negative engagement.

5. Removal by consent

In communicating with the person who made the comment, always have in mind that encouraging them to remove the comment voluntarily will be the most cost effective and efficient way to resolve the matter.

If they will not willingly remove the offending post, depending on the media platform in question, you can take a couple of steps to try and remove it yourself.

6. Removal by social media administrator

Facebook comments have a down arrow to the right of the header. Clicking on this provides a drop down menu from which you can report the post. If the post offends Facebook’s guidelines (is sexually explicit, incites violence or hatred), Facebook will remove the post and any replies.

Google has a similar approach and the team were recently successful in removing a series of malicious posts by people using pseudonyms.

Also, if the comments appear on the page or forum you have administrative responsibility for, there ought to be no difficulty in removing the offending thread. However, don’t be surprised if the commentator reverts to more public forums. If you have a clear and accessible policy for your forum, you can refer the offending user to it as the reason for removing the comment and hopefully generate a dialogue to resolve the issue privately.

7. Removal by law

As any legal process will inevitably be expensive, resorting to the law to remove a negative post should be a last resort.

When you know the individual responsible for the post, and their address, a strongly worded letter from a solicitor can have the desired effect. The ‘take down’ notice will identify the malicious post, explain the legal basis that has been infringed (copyright or defamation) and require the removal in a set period. If that is not adhered to, then matters will need to be escalated.

Depending on the ease with which the individual can be identified, it is possible to initiate legal action against the platform or internet service provider (ISP) responsible for publication. This could involve an injunction requiring the removal of access to certain webpages or websites, which is not against the person responsible, or the website provider, but the ISP. The default position under EU law is that ISPs are not responsible for content – they are merely conduits; however it may be possible in some circumstances to obtain a blocking order.

For further information contact please contact Steven Murray, a solicitor in our Cheltenham office on 01242 246 494 or at [email protected].

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