What can a business do if it finds itself the subject of spiteful and unjustified comments by bloggers in social media channels like Facebook, Twitter and Google?
We are taking an increasing number of inquiries from businesses that are fed up with vindictive and careless comments posted on “forums”, which they say are having a financial impact on their businesses.
These businesses have devoted substantial time and money to build their reputations and brand, which are destroyed in seconds by outrageous and unsubstantiated comments by faceless bloggers. The influence of social media on consumer behavior is a powerful weapon in advertising and marketing but can also be vindictively misused. The issue becomes more complicated because the identity of the blogger is not revealed and the comments can be repeated by other bloggers in other forums. There is usually the suspicion that the comments are manufactured by a competitor who is out to deliberately disparage the business to obtain an unfair advantage. The forensic investigation into the issues is a complex undertaking.
REMEDIES FOR BUSINESSES ATTACKED ON THE INTERNET
So what can a business do?
Recently we acted for a Townsville business and were successful in weeding out the author of defamatory comments against its owner. The comments implied the business sold inferior quality product and exploited its customers. The comments were untrue. The comments were published in pet care forum via Facebook. We issued a”Concerns Notice” under the Defamation Act 2005 putting the author on notice that the comments were to be retracted because the imputations were unlawful and causative of harm to the client’s business. The Concerns Notice was issued through Sarinas Legal’s own Facebook account with a response demand. The pursuit of the blogger paid off for the client when the author revealed himself and agreed to retract the statements. The author apologised and agreed to post corrective comments on Facebook.
But what happens if an unscrupulous author chooses to remain hidden by fake names?
Many actions involving defamatory social media publications have been started and either not pursued or settled, so in these cases it is difficult to draw conclusions from the outcome.
The hard work put in to building up a company’s good reputation can be wiped away by a careless comment in a forum.
However in Cairns v Modi a “tweet” was made by the chairman of the Indian (Cricket) Premier League that former New Zealand captain Chris Cairns was involved in match fixing. The allegation couldn’t be substantiated. Even though there were only 65 followers of the tweet, the English Court awarded the cricketer 90,000 pounds.
The court considered the potential for re-tweeting and tracking those tweets. The court recognised that a comment could go viral. Additionally there are procedures in the rules of litigation that could force Twitter, Facebook and Google to be ordered to disclose the identity of their members if proceedings are commenced.
Can Google/Twitter/ Facebook be sued? But what if the social media site doesn’t have the identifying information or the blogger isn’t worth suing? Can Google itself be sued? This area of the law is still being developed by the courts. These social media entities will usually argue that they are not the actual “publishers” of the defamatory material and therefore shouldn’t be liable. The answer may depend on the degree of control they have over the forum or blogging site or their own automated search engines. In Trkuljav Google Googlewas ordered to pay $200,000 to Trkuljabecause Google’s search engine revealed comments and images implying he was an underworld figure. Google’s defence, that it merely disseminated search findings written by others, failed.
Each case will depend on its own facts but, in our view, if the social media entity is put on notice of the defamatory material and fails to act on it, it will be held liable.
For more information please contact Evan Sarinas of Sarinas Legal Townsville. This releaseis not intended as legal advice and all liability is disclaimed for reliance on it.
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