Protecting your reputation
The number of internet users has reportedly risen from 738 million in 2000 to around 3.85 billion in 2017. Online content can now be created and accessed by an unprecedented number of people.
With this power comes great responsibility. The ease with which anyone can publish online material gives rise to the ever increasing potential that individuals and companies will suffer serious harm to their reputation caused by false information or fake news published about them. Whether this happens by intention or mistake, the ability to spread information at an astonishing speed can lead to long-lasting damage to businesses, and in some cases livelihoods.
The impact of harmful statements published on social media is a hot topic. Increasingly, governments are looking at new measures to remove illegal hate speech and fake news from social media platforms.
Whilst there is a real need for stronger measures to be put in place, and arguably social media platforms must take a greater responsibility for removal of defamatory content, there are steps which can be taken to prevent or limit the damage caused.
In England, a number of legal rights currently exist through defamation, data protection, intellectual property (‘IP’), privacy and harassment laws.
The general rule is that a statement is defamatory if it is published to a third party and has caused, or is likely to cause, serious harm to the reputation of an individual or serious financial harm to a company. The complainant should be able to show that they can be identified from the published statement (they do not necessarily have to be named). Even then, there are a number of defences on which publishers can and do rely. For example, publishing a true statement is a complete defence to a claim in defamation.
Set out below are some of the tools and tactics you can deploy if defamatory information is published about you or your company.
Report to the host
Users of web and social media platforms are generally subject to terms and conditions. Often the quickest, cheapest and easiest way to have information removed is to make a report to the web host or social media platform provider in accordance with their terms. It is well worth reading the terms of the platform on which the defamatory content appears. Often the way in which a complaint is framed can make all the difference.
For example some hosts are quicker to remove material which infringes IP rights than to remove unsavoury comments – for others the opposite is true. Some posts may well contain a logo or photograph which can very quickly be removed by the host. If you take a photograph and post it online, the copyright to that photograph may rest with you. If a publisher subsequently uses it, for example by copying it from your social media pages, without your permission, you may have a right to have, at the very least, the photograph removed immediately. Website providers are afforded certain defences if they have published allegations against others. However, those defences are likely to be seriously undermined where the host is put on notice of a defamatory allegation and fails to remove it, particularly if it is not possible to identify the originator of the allegation. This is another good reason to notify the host early.
When doing nothing is best
Sometimes the best course of action is to do nothing. A reaction can on occasion receive more publicity than the comment itself. Always consider the potential impact of the statement that is being made. If, for example, it is being made by someone on Twitter with two followers, a locked account and who simply wants a reaction from you, then you may decide not to add fuel to the fire by increasing any publicity through reacting to it. However, in the majority of cases we see, action does need to be taken – and quickly.
The cease and desist letter
Writing to the publisher is a cost effective method with a high rate of success. It is, to all intents and purposes, a threat of legal action if the offending material is not removed within a very short timeframe – often 24-48 hours. This will set out the legal grounds for removal of the published information. It is an opportunity for the publisher of the derogatory remark to make an offer of amends to you. It gives the publisher an opportunity to stand back and reassess their actions, apologise and publish a retraction. If the material was malicious then you may not get this outcome from the publisher but, in many cases, we find that it can lead to the removal of some or all of the offending content. It is always worth serving such a letter unless you have decided not to take any action at all. It is easier than you may think to track down and identify the originators of anonymous postings on the internet and the Court may well assist in ordering internet service providers or social media networks to disclose information. We can assist with such applications to the Court.
If you are at the receiving end of a cease and desist letter you should seek specialist advice on the defences open to you and the best course of action to limit the damage. You may be advised to remove the offending material, apologise, publish a retraction and offer an early settlement. If you don’t apologise openly then you may find yourself subject to an increase in damages later on if a claim is found against you. A refusal to apologise can come at a really high price.
The next stage
If the above methods do not lead to the immediate removal of the offending material it may advisable to issue Court proceedings. Given the number of defences open to publishers of defamatory information, it is important to seek advice before taking further action. We sometimes, with the assistance of specialist barristers, assess and advise on the merits and costs of such action before proceedings are issued. Often claims in defamation coincide with claims under data protection, IP, privacy and/or harassment laws. The ultimate aim is to recover compensation and to stop further damage being caused to your reputation. The Court can order the removal of information, an apology, retraction and damages. Generally the remedy is compensation. The vast majority of cases settle before trial.
Before incurring the costs of proceedings you should consider whether the publisher has the means to pay any damages and costs awarded. That said, financial compensation is not always the primary motivator; sometimes having the judgment recorded in a client’s favour is vindication enough. The general rule is that claims in defamation must be brought within one year of a complaint being made against the publication. This is a shorter time limit than most legal claims.
When urgent action is needed – The High Court injunction
Where money is not a sufficient remedy and highly damaging or private material must be removed immediately or is about to be published, you should seek an urgent injunction in the High Court. Speed is of the essence and such action is expensive and highly risky. It can however be highly effective as the Court can make an interim order to remove and/or prevent further publication of defamatory material by a publisher. If you consider you require an urgent High Court injunction, you should seek legal advice.
Time to involve the police?
Sometimes a published article generates hate mail or contains abusive and/or illegal content. In that case it is advisable to report the matter to the police alongside any action they may wish your legal advisers to take. The police have wide powers to deal with illegal publications. In some cases publications which were previously easily ignored escalate to include more sinister material. For example, if a malicious publication includes or infers a threat of violence against you, your family or colleagues you would be well advised to contact the police.
When the roles are reversed
If you publish false and defamatory material you could well be damaging your own reputation as well as risking legal action against you. You should have in mind that anything published online can be read anywhere, so if you are the one publishing material you could also face legal action in other countries where it is read. Then, not only are you dealing with English laws, but also local laws in those jurisdictions, which may be much harsher.
English law, however, still supports freedom of expression and freedom of the Press and there are a number of defences available to people who publish information which, for example, contains honest opinion and/or is in the public interest. That said, it is always better to seek advice pre-publication before relying on such defences.
It is important to have a crisis management policy to deal with negative material published against you or your company. Take a look at our crisis management top tips.