Have you or your employees defamed anyone lately? Are you sure?
Is the prevention of defamation liability part of your social media policy or protocols? If not it should be. Recently an Oregon blogger found out the hard way with a $2.5 million defamation judgment. Luckily, defamation liability can be easily minimized by knowing what it is (and is not) and by using some easily implemented best practices.
What it is
Defamation liability results when you publicize false, purported facts about someone when these purported facts would subject the person to hatred, ridicule or shame, and you knew or should have known that the purported facts were false. Since social media is, by its nature, public, the “publicizing” prong of defamation is always satisfied as soon as you (or your employees) post your blog, update, tweet, etc.
Just the Facts
Defamation requires that the publicized information be in the form of purported facts. For example, posting that someone has AIDS, has been convicted of a crime, or is a cheat, are all purported facts and would be potentially defamatory if false. On the other hand, stating that someone was not pleasant to deal with is an opinion, as is stating that the writer simply does not like someone. Defamation liability generally cannot arise out of these opinion statements, caution is advised since many statements can straddle the gray area between fact and opinion. For example the statement that someone is “not ethical” or is “greedy” might sound like an opinion, but can easily be twisted around to be factual enough to be the basis of a defamation lawsuit.
The purported facts must be actually false. Truth, it is said, is the ultimate defense against a defamation lawsuit. If a person really does have AIDS, has been convicted of a crime, or is a cheat, then saying so through social media channels should not be the basis for defamation liability. Of course, there may be other reasons, including privacy liability why saying so may not be wise.
Finally, even if the publicized information was in fact false, it must be shown that you either knew or should have known (with reasonable inquiry) that the facts were false. In other words, you must be shown to be malicious (knew it was false and posted anyway) or negligent (did not take the reasonable steps a reasonable person would have taken to verify the facts before posting).
1) Have a Social Media Policy or protocol. This is critical, whether you have 500 employees or are a solo practitioner. The importance of having guidelines in place that everyone agrees to follow every time they post on social media for your business cannot be overstated. This is especially the case when defamation liability avoidance is concerned.
2) Be Professional. Regardless of how ugly things get with competitors, customers or anyone else, resist, at all costs, the urge to use your social media networks as a giant megaphone to air your differences. Nothing good ever comes out of this practice and usually you are just inviting trouble. Social Media should be used for purposes that advance your business’ mission and goals. Period.
3) Report Facts through Links. If part of your social media strategy involves reporting on news or facts related to your business, consider using links to established, trustworthy media outlets, instead of being a reporter yourself. The federal court in the Portland blogger case made it very clear that bloggers don’t have the same protections that traditional news media enjoys. By linking (and commenting on the news without adding or implying any additional facts if you need to) you let the pros take on the risk of defamation while still being able to get the facts out as needed.
4) Research if you Need to Report. If you simply must break a story yourself or put a different factual spin on an existing story, you simply must make sure that you have researched your facts and have a reasonable basis to believe they are true. Make sure to also keep good records of your research.
5) Make sure You are Insured. Finally, if worst comes to worst, make sure you are insured. While most of us are not going to have sufficient insurance to cover the $2.5 million verdict in the Portland blogger case, at least make sure that the commercial general liability coverage covers defamation liability. When I say “make sure” I mean to not only ask your insurance agent, but to find it in your policy!