Tag Archives: Social Media

Online Business Defamation: A New Frontier

By on May 5, 2015

The explosion of business review websites and social media applications brings not only opportunities for businesses to get exposure, but also risks of very public negative commentary.  While everyone is entitled to express opinions, that entitlement does not extend to protection for posting demonstratively false statements of fact about businesses online. It is imperative for business owners to monitor online rating websites and relevant social media forums, in order to quickly spot reputation-harming online business defamation. The longer the posts remain up, the greater the potential harm to the business.   

You’ve Spotted a Defamatory Post- Now What?  

When confronted with online defamation businesses have few options.   First, a business may contact the host website to request removal of the defamatory post.  Websites have a wide range of policies regarding online business defamation. Some will directly review and remove clearly defamatory comments, some will do nothing whatsoever, and some fall on the spectrum in between. Second, the business owner may try contacting the author, to reconcile differences and have them voluntarily remove the post. Finally, if the first two options fail or are seemingly unavailable, the next step may be to consider consulting an attorney and pursuing a legal remedy.

Legal Framework of an Online Business Defamation Claim

In Massachusetts, there are five elements that comprise an online business defamation claim. A business must prove, “(1) that the defendant published a written statement; (2) of and concerning the plaintiff; that was both (3) defamatory, and (4) false; and (5) either caused economic loss, or is actionable without proof of economic loss.” Noonan v. Staples, 556 F.3d 20 (1st Cir. 2009). Further, a statement is considered defamatory when it, “may reasonably be read as discrediting [the business] in the minds of any considerable and respectable class of the community.” Clay Corp. v. Colter, 2012 Mass. Super. LEXIS 357 (Mass. Super. Ct. 2012). It is also worth noting that, in the context of online business defamation, federal law limits who businesses can hold legally responsible for defamatory postings. Businesses can generally bring a claim only against the actual author of the defamatory comments and not the hosting website where the comments are posted. 

A recent Massachusetts case, Clay Corp. v. Colter (Mass. Super. Ct. 2012), signaled that it is possible for a business to make a viable case against the author of online defamatory comments. In that case the court entered judgment in favor of the defamed business, finding the authors liable for $750,000, to compensate for the defamatory impact to the business. The court, however, stopped short of ordering that the authors remove the offending posts, citing First Amendment free speech as a limiting factor. Thus, while courts are seemingly willing to rule in favor of defamed businesses the First Amendment may impede full relief.    


The Internet can be a business’s best friend just as easily as it can be a business’s worst enemy. Online posts are immediate and far-reaching, so reaction must be swift. Thus, it is vitally important to police what is said online and understand what options and legal remedies are available to protect your business and your livelihood from online business defamation.

For more information contact Chris Strang. Partner at Strang, Scott, Giroux, & Young, LLP.

Social Media Policies

By on April 6, 2015

Social media is a part of everyday life, regularly used by both individuals and businesses. Businesses from start-ups to Fortune 500 companies use social media for advertising and marketing purposes, and many of their employees use social media on their own time. The term “social media” includes communicating information of any sort on the internet, via a website, blog, chat room, or social networking site. Facebook, Twitter, and LinkedIn are all popular, and many employers maintain an account on each service. With the ability to reach millions of potential customers without any intermediary, particularly when customers can opt in to the receiving the information, the business benefits are real and growing. Given the ubiquity of social media, it is wise for employers to develop a written policy governing its employees’ use of social media. However, employers must be careful, as there are several pitfalls to avoid, coupled with a new and rapidly evolving legal landscape.

Employers may have stand-alone social media policies, or may incorporate their policies into an employee handbook. An effective policy will provide employees with a clear understanding of the employer’s social media expectations. Employers should consider addressing both social media use in the work place and social media use outside of the work place. As with any set of legal policies and procedures, the language should be tailored to reflect the employer’s specific business.

Guidelines for a Social Media Policy

Although a social media policy should be tailored to fit the specific employer, there are general guidelines that any company should consider. With respect to the company’s use of social media generally:

– Explain who is empowered to maintain the social media accounts, including access to account passwords;

– Remind employees that the employer owns both the social media accounts and all social media-related intellectual property posted by the employer;

– Provide internal channels for employees to ask questions and clarify what is permitted;

– Remind employees that every social media post is a public statement directly attributable to the employer.

With respect to the content of the company’s social media updates:

– Prohibit use of discriminating, harassing, or similarly unacceptable language;

– Provide guidance on use of the company name and trademarks;

– Provide guidance on protecting trade secrets and other confidential information;

– Avoid liability for misleading advertising statements or product descriptions;

– Ensure that any statements are honest and accurate;

– Avoid referencing any of the employer’s vendors, suppliers, customers, or other third-parties without receiving express permission to do so from a manager;

– Avoid speaking to the media on behalf of the employer without receiving express permission to do so;

– Avoid violating any state or federal laws.

Employers should also consider whether they already have related policies in place, regarding topics such as harassment, ethics, trade secrets, and confidentiality. If so, it is important that the policies be consistent to ensure that expectations are understood. It should also be made clear that improper use of social media can lead to formal discipline, up to and including termination. Employers should have all employees sign the policy, acknowledging that it was read and any questions were asked. As with any legal policy, it is important that the policy be applied consistently across all employees; few actions lead to lawsuits faster than unequal treatment of similarly situated employees. Employers should contact an attorney for assistance in drafting or updating their social media policy.