Mark Donald, a Defamation Lawyer, talks about the strategic considerations when dealing with online business defamation
Having your product or service blasted online is never a good experience, particularly when your firm is in the start-up phase. Inevitably, you will ask yourself: what can the law do about this?
The answer: a claim in defamation.
Let’s start by going over the requirements for “defamation”:
- a statement made by an author that refers to you or your business (either directly, or by implication);
- the statement must be communicated to a third party (not just you and the author); and
- the statement must lower your reputation in the community.
A simple example would be a post on an online blog or in a newspaper that “Company XYZ provides bad service”. Now, based on this kind of a statement, company XYZ would presumptively have a claim in defamation. However, before you get there, think about the following:
- How much harm does the statement actually cause? a defamation claim is driven by monetary harm caused. With that in mind, business owners need to consider whether lawyering-up is worth it. A statement that leads to widespread ridicule or loss of earnings might be a good candidate for legal action or a demand letter. However, if the statement only hurts your feelings, then legal action may be ill-advised.
- If it’s online, go straight to the service provider: while it depends from website to website, more reputable social media sites and message boards are oftentimes willing to take down offensive posts because they don’t want legal hassle. A brief letter from a lawyer to the website stating your position may get a defamatory post taken down.
- Think about the optics of a legal claim: often, parties ask me to simply send a letter to the offending party asking for a retracting and apology. This is an option; but be aware that the recipient of a lawyer’s letter may end up posting it online to paint your company as a bully.
- Think about the author’s defences: the crux of most defamation cases is the legal defences that the author can employ: The two most common are the defences of truth and honest opinion. Let’s look at both:
- Truth: simply put, a statement that is defamatory (i.e. harmful to your reputation) may still be true. If the defendant can prove substantial truth to their claim, then they’re home free. Business owners must therefore think critically about whether a harmful statement has some truth to it.
- Opinion: this is a quite complex defence, but it boils down to the following idea: (1) does the defamatory statement look like an opinion; (2) is it an opinion based on a stated fact(s) in the same statement; and (3) is the opinion one the author could honestly hold based on the facts as stated?
In the end, this defence is based on the idea that we don’t like to discourage reasonable expression of opinion in a democracy.
In sum: think rationally and critically: hiring a lawyer is expensive, and legal actions take a long time, so consider all your options before lawyering-up when faced with defamatory statements.
Mark Donald practices in the area of online media law, including defamation, invasion of privacy and harassment claims. If you have a legal dispute, you are most welcome to schedule a consultation with Mark. He can be reached at ph: 416-681-9615, or, firstname.lastname@example.org
Note: This article is a general survey of the law and expresses Mr. Donald’s personal views on the subject matter discussed. It is not a substitute for, nor does it constitute legal advice. Viewing this article does not create a lawyer-client relationship.