Defamation

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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).

Social media users have a new demand for 2017 – they want the ability to edit their public messages. Spelling mistakes, missing words and misplaced pronouns can have embarrassing, unintended and sometimes dangerous consequences.  The ability to edit one’s message is an attractive feature.  This request has led some users on the social media platform Twitter to ask its CEO when an edit function would be introduced.

On Thursday, December 15, 2016, President Obama signed into law H.R. 5111, now officially titled the “Consumer Review Fairness Act of 2016.” The substantive provisions of the bill, which we discussed in a previous post, are virtually unchanged, but the law’s text provides further details regarding enforcement by the Federal Trade Commission and the states.

One noteworthy enforcement feature of the law is a cross-reference to the Federal Trade Commission Act. A violation of the Consumer Review Fairness Act of 2016 by offering a form contract containing a provision described as void in the law is also a violation of 15 U.S.C. 45(a)(2), which essentially prohibits unfair or deceptive acts or practices.

In the few months leading up to the United States election, social media was flooded with articles with sensationalized titles and incendiary content. Many of these “news” stories were fake. They were written for the purpose of swaying public opinion or generating a profit from ad revenue and were often published by sham entities or news websites. Large, popular companies may be the next targets, so this post will describe a few actions companies could take.

We have all seen the reviews of products or services that disgruntled consumers post on review sites such as Yelp. Lately, however, some consumers have faced lawsuits for violating “gag orders,” or non-disparagement clauses, found in agreements between businesses and consumers. These clauses restrict consumers’ ability to publish any negative criticism about their experiences and are often placed in the fine print of form contracts.  These agreements provide that, when the consumer posts a negative review, or even speaks negatively about the business’s products, services, or conduct, the business would have a cause of action against the consumer for breach of contract.

Liability for third-party defamatory comments on one’s personal account, whether on Facebook or another internet-based platform, is an emerging legal issue in Canadian law.

If a social media “friend” posts defamatory statements about another person on your profile, or other site, can you be personally liable to the defamed person? Do you have any obligation to actively monitor your social media existence in the face of such statements?  Are you liable for third party statements that you may not even be aware of? 

The explosion of social media in the past decade has caused a major shift in the way we conduct our affairs. In particular, businesses have been required to adapt to new ways of communicating with their clients.  At a rate of thousands of social media applications surfacing each month, and new legal issues surrounding the use of social media, it can feel overwhelming, especially for new businesses. 

This blog recently discussed regular people who have become internet sensations through the use of social media. Chiara Ferragni, for example, started a fashion blog in 2009. She is now a multimillionaire with approximately 5,000,000 Instagram followers.  Tay Zonday posted…