When Comments Cross the Line: Social Media and Business Defamation

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Pessin Katz Law, P.A.

It’s hard to imagine making almost any purchase these days without looking at on online commentary. Posts, reviews, and tweets written by helpful souls with a bit too much time on their hands (or perhaps more often than we’d like to think, by reviewers-for-hire) guide us toward certain products, services, or experiences and away from others. For businesses, the currents of online commentary can mean the difference between prosperity and bankruptcy.

Negative opinions, of course, are one thing: every business has to deal with a dissatisfied customer once in a while. But there is another, more invidious—and legally significant—species of online comment: a post on Facebook, for example, a Tweet, or a Yelp review that says something false and derogatory about your business or product. These comments, which can harm your business’s reputation and bottom line, may be defamatory.

Sometimes referred to as commercial defamation, trade defamation, or business libel, business defamation is a subcategory of defamation, which, in the colorful language of Maryland’s highest court, embraces statements “tend[ing] to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person.”[1]

Your first thought when confronted with a potentially defamatory statement might be to contact the social media platform’s customer service center to request its removal. A good idea—but you should be aware that social media companies have little incentive to remove or otherwise act on defamatory statements. There are at least two reasons for this. First, the Federal Communications Decency Act of 1996 relieves websites and internet service providers of responsibility for statements made by third parties.[2] Second, as a practical matter, social media companies are generally in no position to judge the truth or falsity of statements made by their users.[3]

Yelp, for example, makes its position vis-à-vis potentially defamatory statements fairly explicit: “we don’t typically take sides in factual disputes.”[4] Facebook provides a fill-in-the-blank defamation reporting form that, if you live in the United States, will not permit you to report defamatory statements at all.[5] Twitter’s User Agreement mentions defamation, but only to protect itself (not you) from any legal fallout from users’ conduct.[6] And Instagram’s otherwise extensive Help Center is entirely silent on the issue.[7]

Given this state of affairs, what’s your best course of action when an online comment about your business crosses the line? While the answer will ultimately depend on the specific circumstances of your case, there are a few preliminary steps you should take.

First—before you do anything else—screenshot and document everything. What exactly does the comment say? When was it posted? On what platform? Were there any replies? Is there any indication of how many times the comment was read or republished? When and how did you discover the comment? Are you aware of any circumstances that might have given rise to the comment? What consequences, if any, has the comment had for your business thus far? These kinds of details will be critical should legal action become necessary, and are often difficult to adequately document after the fact.

Second, take a breath and a step back. Decide whether reaching out to the commentator in a friendly way—with an owner response on Yelp, or a reply on Facebook, for example—might address the comment and its consequences. Doing so publicly may be both cost-effective and good for your brand. Your decision, however, should be guided by the nature of your business and your knowledge of the circumstances surrounding the comment. Also, be aware that any private communications you send to the commentator may end up on the web as well.

Third, carefully consider the nature of the statement. Not every negative comment rises to the level of legal defamation. If the statement is truthful or a pure expression of opinion, for example, you’re unlikely to have a viable claim. Defamation laws are concerned with lies, not impressions or feelings. Business defamation, moreover, is generally concerned with statements assailing an organization’s creditworthiness, property, or business dealings; statements about stockholders, officers, or employees are not considered defamatory of an organization unless they impute its financial or business conduct.[8]

If you’ve taken these steps and believe your business has been defamed, then promptly contact an attorney. Depending on your jurisdiction, you may have as little as one year to bring a defamation claim, starting from the date the statement was first published online.

[1] Offen v. Brenner, 402 Md. 191, 198–99 (2007) (quotation omitted).

[2] 47 U.S.C. § 230.

[3] This is not true, of course, of statements involving harassment, threats, the dissemination of private information, and other objectionable content.

[4] Will Yelp Remove a False or Defamatory Review? https://www.yelp-support.com/article/Will-Yelp-remove-a-false-or-defamatory-review?l=en_US (last visited Mar. 11, 2019).

[5] Defamation Reporting Form, https://www.facebook.com/help/contact/732748663560891 (last visited Mar. 11, 2019).

[6] Twitter Terms of Service, https://twitter.com/en/tos (last visited Mar. 11, 2019).

[7] Help Center, https://help.instagram.com/ (last visited Mar. 11, 2019).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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