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Susan Edwards

HR in Minutes

Director

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Legal Insight: How to deal with social media defamation

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As proved by the viral take-off last week on Twitter of Keiran Allen’s very public resignation email, there are three fundamental concerns that employers should have about social media.

These are:
  1. It’s a very fast moving environment – things happen in real time
  2. Postings are permanent – most of the time (with very few exceptions), you can’t undo what’s been done
  3. It’s an unrealistic environment full of “friends” and “followers”, most of whom you have never met and owe you no loyalty.
 
Of course, there are a number of legal implications in a social media context, but the focus here is on the potential impact on your organisation of what your employees say about other people and employers.
 
You may feel confident that they understand how social media fits in with your business strategy and marketing plan. You may also have a comprehensive social media policy in place in a bid to try and ensure that staff do not breach confidentiality issues or talk about the organisation in a derogatory manner.
 
Despite this, however, social media is such a relatively new area that the slip ups are now starting to come fast and furious.
 
But there is also the concept of ‘re-tweeting’ to consider. While one of your employees may not originally have made a given comment, by re-tweeting it they could still be considered as an originator because each ‘re-tweet’ becomes a separate publishing event. So the golden rule here for everyone is, if you’re not sure, don’t do it.
 
Part of the problem though is that social media appears to be quite personal (having a chat with a few friends) and so can lull people into a false sense of intimacy when, in actual fact, they are indulging in social publishing.
 
The situation is also not helped by the fact that employers have vicarious liability for staff members’ actions – unless you can prove that they were on a frolic of their own and it was nothing to do with their job.
 
But with many employees proudly declaring allegiance to employers in their personal profiles (“I am head of sales at company X”), even those with a clear social media policy can be unwittingly included in personal social media activity.
 
So, working on the basis that you may have a problem in social-media-land, what are the legal implications and how do you deal with it?
 
Reputation/defamation
 
A key concern when something goes wrong is defamation or potential damage to someone’s reputation. Libel covers the printed word. There are some limited defences to libel, which include the fact that what is written is true (justification) or is a “fair comment” (an honest and sincere opinion).
 
In one of the first Twitter libel cases, former New Zealand cricket captain Chris Cairns sued Lalit Modi, (the former chairman of the IPL, the Twenty20 franchise in India) after Modi alleged that Cairns was involved in match-fixing.
 
The Court found no evidence of this claim and Cairns was awarded £90,000 in damages, which took into account the number of times that the allegations had been made and remade (re-tweeted).
 
How to deal with potential defamation
 
Realistically, once something has been said and it’s out there, it’s out there for good. Even if you could get hold of a great internet eraser and try to delete what’s been posted, there is always going to be a clever IT person who will find it again.
 
But it’s bit like making a crass remark in front of a group of people at a party. You can:
  1. Ignore it/do nothing
  2. Clarify what you meant
  3. Apologise.
 
1. Ignore the problem
 
Most of us would probably like to ignore the remark and pretend it hadn’t actually been said – and, in some circumstances, that may work. There is a valid argument against drawing attention to something that is potentially damaging but, of course, it depends on what’s happened.
 
So if an employee has been a little ‘overenthusiastic’, it may be possible to let it slip and deal with them in the usual way, hoping that the gaffe goes unnoticed (fingers crossed) in the blizzard of media outpourings.
 
If someone does subsequently pick it up, you could deal with it by means of a quick apology, reassuring social-media-land that it was a “slip up” and not something that would normally happen.
 
2. Clarify what you meant
 
Since the transmission of social media is fast, words are often written in the heat of the moment without the writer really thinking them through.
 
The problem is that, while in a face to face conversation you can see someone’s reaction to what you’ve said, social media doesn’t afford you this luxury – and the written word can be open to a good number of interpretations.
 
This means that as soon as you realise that something may have gone wrong, clarify what was meant. Also with an eye to putting forward potential defences to libel, include one of the following statements after your explanation:
 
  • “That’s our current opinion on the situation, but we quite understand if you don’t share it”
  • “It’s true, even if it’s something you may not want to hear”.
 
3. Apologise
 
An apology is sometimes the best and only way to deal with the situation. As a lawyer, I’ve heard “if only he’d apologised, it wouldn’t have come to this” so many times. While some people may feel that they don’t want to admit liability, the problem is that whatever has been said is out there in black and white.
 
Although it may be necessary to take legal advice if you feel that what’s been said is going to cause serious problems, there are situations where a carefully worded and swiftly issued apology can defuse things. At the very least, you can limit the immediate damage. Such apologies could take the form of:
 
  • “I’m sorry if that’s upset you, but it’s only our opinion on the situation and I quite understand if you don’t share it. Now that you’ve said you’re upset, I’ll make sure that it isn’t mentioned again.”
  • “I’m sorry that it may be something nobody wants to hear, but it’s entirely factual. I understand that you’re upset and I can assure you that we have no intention of addressing the subject further unless there are new developments.”
 
Whatever the scenario, however, it’s a good idea to think through what could go wrong and how you might be able to deal with it. Don’t underestimate the value of having a coherent crisis management plan in place either, which should, of course, be regularly monitored and reviewed.
 

Susan Edwards is a director of legal services firm, HR in Minutes.

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Susan Edwards

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