Very little has changed in defamation law over the years… except it has gotten easier to commit it. With the ease of the printed word, the ability to say something untruthful about another and have it heard by many became very easy. TV media helped make it even easier. And finally, in the age of internet access from a cell phone – we’ve reached the pinnacle (for now at least). So, what is defamation?
As with any good legal jargon, there’s plenty of ‘if, then’s, but’s, and except when’s’ that only lawyers can stomach to parse, but in its most basic form, these are the essentials:
1. The Defendant published a false statement;
2. About the Plaintiff;
3. To a third party; and
4. The falsity of the statement caused injury to the plaintiff.
Getting back to the point of this discussion, let’s talk about how a simple post can ruin everything for all parties involved.
Hypothetical: John runs a contracting business and he agrees to do work for, oh, let’s say Lester. John shows up and he does the work. Lester pays the agreed price. So far, so good. However, Lester then asks John to do some additional work at another property Lester just bought. Unfortunately, John cannot take on the project on the budget Lester wants. No deal. Problem – Lester jumps onto his Yelp account, his Facebook account, and his Twitter account, and regales his invisible audience with warnings that John is “a fraud” and “a criminal” and that John “refused to do the work that John promised.” Here’s how this goes wrong for each:
For John: Bad press is bad for profits. Now it is out there and he doesn’t know who has seen it or exactly where all it is posted. He starts losing new business and finds that his current clients are becoming more difficult and some are coming up with excuses to break the contract or not pay at all. John talks to a lawyer. John pays said lawyer. Said lawyer sues Lester.
For Lester: While he may feel better after posting, what he doesn’t realize is the potential for these comments to backfire. Of course, as we’ve said, John hired a lawyer who is in the works of serving Lester with a lawsuit. To add to it, John and his lawyer have already been proactive in replying to the commentary by setting the record straight with the facts.
For the hosting website: Well, things probably aren’t so bad for them. Unfortunately, for John anyway, for the most part these companies find enjoyment of complete immunity pursuant to Section 230 of The Communications Decency Act. Though John’s lawyer may find some facts that give rise to liability, John probably shouldn’t count on it.
Whether you’re in John or Lester’s position, you’re in a bad spot. For both, you’re looking at legal fees. Given the difficulty of these cases and often the uncertainty of a true monetary recovery, most attorneys will not be taking the case on contingency. However, if you do nothing, you’re business faces more and more lost profits.
So, in the end, what should you do if this hypothetical situation sounds like your reality?
1. If you’re John the contractor, take the opportunity to calm yourself before doing any posting of your own. Then, post your side of the story, sticking to the facts. Do not plunge into a diatribe demonizing your posting opponent.
2. Consult with a business litigation attorney, preferably one with experience in internet defamation issues. Whether or not you ultimately litigation will depend upon the facts of your case and your ultimate decision. Most attorneys offer free consultation.
3. Be prepared before you get here. Since you were little, you were told to have a plan in case of a fire. Well, in today’s social media/blogasphere/onlinereviewmadness world we live, we need to be prepared. Have a plan of action for your reviews and take action early.
Finally, the most important to-do of all:
NEVER POST FALSE INFORMATION and NEVER RESPOND IN ANGER.