Avoiding a social media lawsuit

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Having a bad day at work? That FaceBook rant or Twitter post that allowed you to blow off some steam could land you in hot water or worse, you could wind up in court.

Statements posted online that negatively impact the reputation or image of another person, business or product, may be considered defamation. The author of such a posting could face legal action especially if they used assets at work – a laptop computer, a desktop computer or a cell phone – to do so.

For example: If an employee 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.

“To date we haven’t seen many of these types of cases here in Canada,” said Michael Smith, a lawyer who specializes in defamation law at BLG, Canada’s largest national law firm. “That could be because nearly 99% of civil litigation cases are settled out of court and not in the public eye. A few more high-profile cases like what we saw last month, where rocker Courtney Love settled out of court for $430,000, and Canadians will come to understand their rights. That’s when we’re likely to see an influx of defamation cases related to social media.”

As it stands now, the Courtney Love cases are extremely rare. Few people have been sued for their comments online and even fewer have went to court over them but everyday people are just as legally responsible for their comments online as any celebrity, sports star or CEO.

Here are some tips for businesses to help mitigate liability posed by social media use:

1. 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.

2. 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.

3. 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 negative publication does not mean that it could not have been or should not have been. “Near misses” offer good training scenarios.

4. Where a business uses social media to communicate, 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.

5. 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.

John Powell

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