Defamation in the social media age: what to do if someone posts something negative online28 Sep 2015
Social media and other internet-based comment posting sites, such as Twitter, Facebook and TripAdvisor, can be both an opportunity and a threat for businesses. While effective use of these sites can add value to your business, negative comments posted on them can have a detrimental impact. It is therefore imperative that businesses not only learn how to handle such comments, but understand their legal rights. Here, Claire Meyers, senior intellectual property associate for Kuits, explores what to do when it all goes wrong.
What constitutes defamation?
Where negative statements are made online about your company, you may have a course of action against the author if the comment is defamatory. Whether a statement is defamatory or not will depend on the exact words used and, simplistically, whether the statement lowers a reasonable person’s opinion of the business. The statement must also have caused, or be likely to cause, serious financial harm to the business.
Can I take action against the website the comment appears on?
An action for defamation can only be brought against the author, editor or publisher of the statement, unless it is not reasonably practicable to do so. The author of a statement may not always be self-evident (for example, people using usernames or posting anonymously). The operator of the page on which the comment appears is a publisher, so at first glance is often easier to pursue than the author.
However, the Defamation Act 2013 shifted the balance of defamation law and created the “Website Operators’ Defence”, which allows operators to avoid liability if they take certain steps (as prescribed by law) to contact the poster and seek consent to remove the comment. After the website operator has completed the process, however, the post may remain on the site, meaning businesses can be left with no action against the operator and struggling to pursue the author (this happens where the author refuses to consent to removal of the post and to their details being passed to the claimant).
A further step which can be taken to identify the author is to apply for a Norwich Pharmacal order against the website operator, ordering them to disclose the identity of the author. Once this has been obtained, action can then be taken directly against the author and a remedy obtained.
What happens now?
Defamation is a complex area of law with many challenges: first, establishing that the statement is defamatory; second, deciding who to take action against; and third, taking such action and receiving an adequate remedy.
Remedies for defamation include: damages, an injunction, publication of a summary of the court’s judgment and an order to remove the defamatory statement.
What is the law doing to protect businesses from defamation in future?
Following the introduction of the Defamation Act 2013, there are many areas of uncertainty that need clarification in court – this is an area that will most certainly develop in years to come and therefore an area where specialist advice should be sought.
Kuits’ Intellectual Property Team have extensive experience in advising on this area, so if you have any queries regarding defamation and reputation management, please contact us or call 0161 832 3434.