Statements posted online that negatively impact the reputation or image of another person, business or product may be considered defamation, and present a legal risk to the person who authored the post. This is as true for charities and Not-for-profit organizations as it is for business corporations. Individual social media users should be concerned, but employers face even greater risk. Each time an employee posts a negative comment online while at work, or from a work asset such as a laptop or Smartphone, the employer is exposed to liability. So far, Canada hasn’t seen a flood of social media-related defamation lawsuits, but Canadians spend more time online than any other nationality, which means it could only be a matter of time.
A. BUSINESSES AT RISK
Employers are exposed to liability every time an employee tweets or posts a negative comment while at work or from a work asset such as a laptop or Smartphone. Whether that employee uses a work-assigned Smartphone to post a personal opinion about a neighbour, or knocks a competitor while tweeting for business purposes, the legal ramifications will almost certainly include their employer. The same goes for internal postings. Employers should be wary of e-mails among staff that slam vendors or discourage others from doing business with a supplier.
Defamation is not just limited to the specific individuals who tweet or blog about a business or product. Employers must be aware that they are at risk of unwittingly becoming publishers of their employees’ statements. The fact that businesses have ‘deep pockets’ is just added incentive for someone to launch a defamation lawsuit against an employer.
B. BLG OFFERS THESE FIVE TIPS FOR BUSINESSES TO HELP MITIGATE LIABILITY
- Establish clear guidelines and policies for employee use of social media in the workplace and identify specific rules and expectations for the use of company assets such as laptops and smartphones. Consider building those policies into employment contracts, and have everything reviewed by legal counsel.
- Clearly communicate and educate employees on the policies for using social media while at work and on company assets. Consider holding webinars or staff training sessions so everyone is clear on the guidelines. Staff must understand the consequences of defamatory statements.
- Establish policies for making employees accountable for their social media posts that are either work related or made from a work asset. Just because the business is not sued after a nega tive publication does not mean that it could not have been or should not ha ve been. “Near misses” offer good training scenarios.
- Establish a team of reviewers that can check outbound comments before they are posted. A second set of eyes on significant postings is good practice.
- More informally, encourage staff to pause and reflect before they send any negative comments, and have a colleague review the message before it is sent. A “cooler head” reviewing will often result in revisions to tone down the message, protecting the business from distracting and expensive lawsuits.
C. CANADIANS RELY ON SOCIAL MEDIA
Online reviews are a fertile area for an increase in defamation claims. A recent study indicated that nearly two-thirds of consumers read and are influenced by customer-written product reviews on the web. If society relies on the web for advice on purchasing decisions, a negative review could significantly impact the image and reputation of a product or business, and put the author of the review at serious risk for a lawsuit.
We are likely to see an increase in defamation suits related to social media, but we are also going to see people become a lot more careful in what they say online once the exposure to defamation suits is more widely understood. That could undermine a lot of what people see as the value and purpose of social media, which would be an interesting turn of events.