Marko Vesely heads the defamation and media law group at Lawson Lundell LLP in Vancouver.
Businesspeople, beware potential libels online – especially in social media. You're not just among friends.
You’re not likely to get slapped with an expensive lawsuit for denigrating your boss over drinks after work. But if you write the same things online, watch out, because you could find yourself buried in legal trouble.
For generations, the power to publish information widely was the exclusive preserve of governments and big media organizations like newspapers, radio stations and television broadcasters. Social media have decisively ended that monopoly by putting the power to publish in the hands of ordinary people.
Unfortunately, many people are still learning the hard way that the same rules and principles that govern large media organizations also now apply to individuals who publish content on their blog or Facebook wall. They can also have an impact on those who “republish” content by forwarding an email, retweeting a Twitter comment or sharing a Facebook post.
Defamation in social media
Defamation law, mostly conceived in an old-media world, has historically balanced one person’s right to freedom of speech with another’s to not have his or her reputation unfairly attacked. The emergence of social media and other online technologies has made it more difficult to navigate the application of these long-standing principles.
Lawyers who practice in the area of defamation increasingly see claims arising from statements published online, which isn’t surprising, considering that more and more communication occurs through these new media channels. Unlike the traditional letter to the editor, comments can be posted instantly, often in the heat of emotion, and many people who post comments do so under the mistaken belief that they will remain anonymous. Social media can also create a feeling of false intimacy, as users may mistakenly believe they are only speaking to a small, well-known group of people.
Defamatory statements can have serious consequences for a business whose reputation comes under attack. Campaigns against a business can easily “go viral” if not addressed swiftly, and once information spreads widely over the Internet, it is difficult, if not impossible, to retract.
Those who post untrue and disparaging statements about others can find themselves sued as defendants in a defamation action, with all the legal cost and potential liability that entails. And a lawsuit is not the only worry: as two employees at a Pitt Meadows car dealership recently found out, it can cost you your job. In October 2010 the B.C. Labour Relations Board upheld the firing of two employees by West Coast Mazda over comments they had posted on Facebook about their employer and its customers.
Businesses that find themselves vilified online, whether by competitors, activists, disgruntled customers or others, face some difficult strategic decisions. A stern lawyer’s letter or a defamation lawsuit is sometimes essential. Other times such a response only makes the situation worse. It requires good judgment to determine which road to take. Legal and other expertise is often needed to ascertain who is posting the comments, where they are located and what means they might have to pay any judgment awarded against them. Finally, a public relations response is sometimes a good alternative or a complement to legal action.
The lesson for those who publish through social media is to exercise restraint. Many people have found themselves in legal trouble simply because they did not understand how public their comments could be. Statements of fact that prove to be untrue (or are impossible to prove true) require more caution than statements of opinion, which enjoy greater protection under the law of defamation.
The bottom line for social media users is, if you wouldn’t be happy to see your comments published on the front page of your local newspaper, you may want to reconsider posting them on your Facebook wall.
Marko Vesely is a partner practicing commercial litigation at Lawson Lundell LLP in Vancouver and heads the firm’s defamation and media law group.