February 2017

On January 1, 2017, the National Labor Relations Board (“NLRB”) released an advice memorandum (dated September 22, 2016) that reviewed and approved Northwestern University’s revised Football Handbook’s social media policy. The NLRB Office of the General Counsel, which prepared the advice memorandum, was asked to advise whether the university’s Football Handbook policies, including its social media policy, were lawful.

The United States District Court for the Southern District of New York ruled, on January 18, 2017, on a defendant’s motion to dismiss replevin, conversion, and trespass claims related to the misuse of various domain names and social media accounts.  Salonclick LLC d/b/a Min New York , 16 Civ. 2555 (KMW), 2017 WL 239379 (S.D.N.Y. Jan. 18, 2017).

The plaintiff in the case (“Plaintiff”) operated a business that manufactured and sold a variety of grooming products, including hair and skin care products. The Plaintiff used various domain names and tag lines in its business, including www.newyorkheart.org and a corresponding Facebook page, which spoke out against ivory poaching. The social media page was used, in part, to promote the company as a socially responsible business.

A carefully curated social media presence is a critical business requirement, but there are risks. One of these risks is unlawful content – be that unlawful content posted to your businesses’ own social media account (exposing the company to potential liability) or harmful content about your business (or its C-Suite or key personnel) posted on independent sites.

So how do you tackle unlawful content? Often the first point of call is the law of defamation. The UK is renowned as a claimant friendly jurisdiction for defamation litigation. With its widely respected court system and judiciary, the UK has been the forum of choice for international defamation disputes. Note that the rules have recently been tightened up with stricter thresholds brought in for defamation actions and a requirement, aimed at stopping “libel tourism,” that for claims against non-EU defendants the UK must be the “most appropriate place” in which to litigate (the Defamation Act 2013).