In the Business Torts category of this blog, I recently covered the basic law in Connecticut concerning interference with business relationships. Today’s post concerns another business tort known as "defamation" and how it intersects with the growing use of social networking sites.
There already have been several lawsuits for defamation arising out of use of social networking sites, such as Twitter and Facebook. For example, The California Defamation Blog lists several celebrities involved in defamation cases, including Courtney Love who was sued by a fashion designer for defamation after a series of derogatory Twitter posts by Love. Craig Kanalley of Chicagonow.com reported that a property owner sued a tenant for disparaging Twitter comments. The Chicago Tribune recently reported on a defamation lawsuit brought by a mother and her son after a phony Facebook profile was created showing the son was a racist.
Should Connecticut businesses be concerned? Clearly, the type and variety of these suits are on the rise. In legal circles, these type of claims have a category of their own called "cyber slander" or "internet defamation." Given the popularity in use of social networking sites, and the ease in which statements can be broadcast to millions, it is safe to predict that more defamation cases will be filed in the future.
Connecticut businesses can be affected by defamation suits involving social networking sites and the internet in a number of ways, such as:
- Employees making comments about a competitor
- Employees making comments about supervisors or co-employees
- Employees making comments about the company’s products
- Competitors making derogatory comments about the company
- Phony Facebook or Twitter profiles
- Derogatory comments about the company
In Connecticut, defamation encompasses defamation by spoken (slander) and written (libel) words. In general, to raise a proper claim for basic defamation, a plaintiff must show that:
- A defamatory statement was made
- The statement identified the plaintiff to a third person
- The statement was published to a third person
- The plaintiff’s reputation suffered injury as a result of the defamatory statement
In regards to businesses, there is also a defamation claim sometimes referred to as "commercial disparagement" or "trade libel." For this type of claim, a plaintiff must prove disparagement of a business’ goods or services by falsehoods published or communicated to a third person.
With the ease of publication to millions over the internet, it is easy to see how someone might publish a defamatory comment whether it be on a blog, social networking site, or website. Chances are, if you are in business, either you, someone who works for you, or a competitor has commented about the business in cyberspace.
For a business, the best way to avoid a lawsuit for defamation as a result of employee use of sites such as Twitter and Facebook is to have a written policy that governs employee use. The details of each policy will differ depending on your business, but clearly the policy should prohibit any defamatory or derogatory comments about the business, employees, or competitors.
In situations where a competitor or customer disparaged your business’ products or services, a business may want to consider legal action and determine if grounds exist to issue a cease and desist letter, a take down letter, or initiate a lawsuit. Internet defamation can ruin a business’ reputation overnight and should be addressed immediately regardless of whether the business pursues legal action.
For a business, whether legal action is taken may depend on the severity of the disparagement and the damage done. In some cases, a cease and desist or retraction is a practical solution especially when a defamation suit would bring added attention to the matter. In other cases, legal action, such as a defamation lawsuit, may be required to stop ongoing damage or serious problems.
Regardless of the situation, Connecticut businesses should, at a minimum, monitor cyberspace for defamatory comments. Comments that might lead to a lawsuit could come from your own employees, a competitor, or a disgruntled customer. A written policy is a good way to minimize risks of employee comments. As for competitors and customers, Google alerts is a good way to monitor use of a business’ name on the Internet. The alert will send you an email every time your business name is found on the internet.