Heather Bussing is a returning contributor to our HRExaminer Editorial Advisory Board. Heather has practiced employment and business law for over 20 years. She has represented employers, unions and employees in every aspect of employment and labor law including contract negotiations, discrimination and wage hour issues. While the courtroom is a place she’s very familiar with, her preferred approach to employment law is to prevent problems through early intervention and good policies and agreements. Full bio…
Behaving Badly Online & Defamation
by Heather Bussing
As business involves more interactions on the internet, the legal and practical implications of what you say and where you say things online is changing. Access to information is instantaneous—thoughtful responses and time to consider are rare.
It used to be that something was written, set aside, edited and mulled over before it was published in one of a few media outlets. Today, information, including photographs and video, get Tweeted, posted, linked, Youtubed, Googled and emailed instantaneously. The opportunities to create havoc and legal liability abound.
Part of it is the disconnect of between the author and the audiences. There is a false sense of intimacy in being able to communicate so quickly to multiple audiences of one. Posting our hearts out from a computer, we are completely removed from the checks and balances of body language and voice inflections inherent in in-person communications. We like what we’re saying. We think we’re right. It’s often difficult to know when we are completely out of line until it’s too late. And once you post, it’s pretty much too late.
So it is important to use good judgment and remember you are working in a wide-open universe where information travels quickly and freely and can hang around for a very long time. The main rule is simple. Unless you want a million perfect strangers to know it, don’t post it.
There is also legal liability for behaving badly online. Saying and doing mean things to others in public can create personal liability for you and potentially your partners or employer. This generally falls under the category of defamation. (Other misuse of information, content and images can create copyright and other intellectual property problems too.)
Defamation is saying something false about a person in a way that damages that person. Defamation is the general category. Libel is saying it in writing. Slander is saying it verbally. False Light is making someone look bad based on false information.
The key to any defamation claim is that the speaker or writer either actually knew the information was false or a reasonable person would have known that the information was false. So there is an objective standard about whether you should have known what you were saying was not true.
The primary defense to most defamation claims is that the information stated was actually true—whether you knew it or not.
There are other important defenses. Public figures usually cannot sue for defamation because of free speech protections. So you can pretty much say anything you want about Charlie Sheen right now without liability. But since he’s rich and acting oddly, you might still get sued. Tiger blood and all.
Other potentially damaging statements are privileged, such as the things that are said in litigation or in employment evaluations because the importance of a free exchange of information outweighs the individual’s hurt feelings.
Also, personal opinions that are clearly stated as opinions rather than statements of fact are protected speech and not defamation.
You Can Be Legally Responsible for Employees’ Defamation
It is essential to understand that vicarious liability applies to defamation claims. That means that if you are acting in the scope of your job when you say something defamatory, your employer or business partners can also be responsible for everything you say. If you are an employer or partner, you can be held responsible for what your agents and employees say, even if you had nothing to do with it.
It gets especially tricky when the internet is involved because damaging statements get published, republished, linked to, and tweeted quickly and exponentially.
The courts are having trouble figuring out how to apply the law. It used to be that publishers could be liable for defamatory content in their publications because they had some level of control over what goes into the publication. But distributors were generally not liable because they just sell the stuff and don’t have editorial control.
Courts have struggled to extend this distinction to the internet, holding that system operators or website owners can be liable for content posted on their site if they have some level of editorial control or if they knew or should have known that the statements were not true. But if they are just distributing the information without editorial control, then they are usually not liable.
Website operators are essentially damned if they do and damned if they don’t. If you make an effort to moderate what goes on your site, you become potentially liable for everything there. If you take a completely hands off approach, your potential for liability goes down– but so does the quality of the content of the site.
What to do
If you are a website operator: It’s better to know what is going on and immediately take down inappropriate or potentially damaging and/or false information than to rest on the ” I don’t control it” defense in a lawsuit. Your integrity and the integrity of your site and brand are essential to your ability to do business over the long run. You don’t have to be a hall monitor. But it’s much better to prevent the damage — to yourself and others– than to try to defend against it later.
If someone is saying something damaging about you online: Contact the person immediately and demand that the post be removed. Even if that works, it may already be too late. So you should also probably issue an immediate response. Explain why it’s not true–stick to the facts. Avoid name calling. If you are really pissed off, get someone you trust to give you objective advice before you post anything. You want to put it to bed, not amp up the hostility and open yourself to liability for defamation.
This is contrary to the old PR and legal advice to ignore it and avoid giving it the honor of your time and energy. It used to be that you wanted to avoid repeating the damaging information and diminish the exposure—responding just kept the issue alive and created further damage. However, with the internet, there is no way to know where the information has gone or to whom. Also the volume and speed of the river of information has made the attention span of users extremely short. So it’s much more important to put a swift, firm, and honest response online for anyone who connects to the damaging information.
If you are a blogger, commenter, or writer online—watch what you say and do and where you say it. You are the one with the most to lose. Saying mean or embarrassing things about other people almost always backfires. If you have an issue with someone, call or email them directly and handle it offline.
When (notice I did not say “if”) you screw up, make your apologies public as well. Taking responsibility for your online actions not only demonstrates your integrity and maturity, it will also reduce the chance of getting sued.
It’s really about maintaining healthy personal and professional relationships—which are the essence of good recruiting, developing a positive brand and effective communications.