3 steps to take when your reputation is attacked online, by Barbara Weltman

Barbara Weltman

Social media sites such as Twitter and Facebook are the Wild West when it comes to expressing opinions about customer service and other business experiences. But freedom of expression on social media outlets and other public forums does not extend to defamation (an injury to your reputation). Can or should you sue? These 3 steps will help you decide what type of action, if any, to take.

Steps to take

Step one. First determine whether anything actionable has occurred. Online statements can be:

• Opinions that do not constitute defamation.
• Physical threats that rise to the level of criminal activity.
• Defamatory statements (that meet all three criteria below).

The first type of statement is protected free speech; the second is a matter for the police. Only the third type of statement -- a defamatory statement -- may be actionable, meaning you can bring a lawsuit to recover damages.

Defamation is a false statement of fact that results in an economic injury. There are several elements to defamation, all of which must be present in order to amount to something actionable:

• A publication addressing someone other than the person being defamed. Online statements constitute a publication.
• The statement of fact must be false. Truth, no matter how unpleasant, is a complete defense to any defamation action.
• The statement must be understood as one tending to harm the reputation of the person it concerns. If the person is a public figure, there must be actual malice in making the statement.

In one case, a person whose professional reputation was irreparably damaged was able to win an $11.3 million recovery.

Step two. Determine whether a defamatory statement is worth taking legal action. If the defamatory statement is merely embarrassing but does not seriously impact your pocketbook, it may not make business sense to pursue the matter; just let things just die down. Consider:

• Time -- Any legal action involves a great deal of time and emotion on your part.
• Cost -- Legal fees for representation can be high. Attorneys do not take these cases on contingency where the sought-after recovery is something other than money (taking down defamatory statements, providing equal time and exposure to correct public misperceptions, etc.), and you must bear the cost of legal action throughout the term of the case. Do a cost-benefit analysis to determine whether the cost of litigation is worthwhile compared to the damage you've suffered and the likelihood of success in winning the case.

Step three. Make a decision. After consulting with a knowledgeable attorney and assessing the time and expense it will entail to pursue legal action, decide whether to go forward or drop the matter. 

Special considerations:

• Anonymous writers. It's possible, but more difficult, to pursue legal action when the defamatory statement has been made by an unknown person. There's a good article about this at Law.com.

• Retractions. If you decide to proceed, you may be required under state law to request a retraction before you go on. The retraction usually must appear as conspicuously as the original defamatory statement. If there's a retraction, it reduces the possible monetary recovery and may help you decide to drop the matter at last.

Monitor your online reputation

How do you know if you're being maligned? It's good business practice to use various tools to track what's being said about you and your company in articles, blogs, and various social media sites. Tools to help:

• Echomail
• Echosonar
• Google Alert
• PR Newswire's Media Monitoring
• ReputationDefender
• Socialmetrix Echo

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Barbara Weltman, Publisher of Big Ideas for Small Business®
www.BarbaraWeltman.com
info@BarbaraWeltman.com
Twitter: BarbaraWeltman