Guidance note for responding to online criticism

18 July, 2018

‘A good reputation is hard won and easily lost.’

Social media platforms such as Twitter and Facebook can be echo chambers for criticism.  In a very short period of time, public criticism can cause serious harm to a commercial reputation.

Whether it is a customer with a genuinely held complaint, or an online troll maliciously stoking the flames, criticism is now rarely private. 

So, what can be done to protect a brand and its reputation when it faces online criticism?

The first step is to identify whether the criticism is:

  • False and malicious; or
  • Truthful and genuine.

We look at both in turn below, you can also download a copy here. 

If the criticism is unfounded (i.e. untrue), it may be possible to challenge the publisher of the comments on legal grounds, raising a claim for:

  • Defamation;
  • Malicious Falsehood; or
  • Intellectual Property (IP) Infringement.

Defamation

‘Defamation’ is an umbrella term, covering both libel and slander.

A defamatory statement is a false statement of fact that exposes a person or business to hatred, ridicule, or contempt, causing them serious harm (and in the case of a business, serious financial harm).

Libel typically involves ‘lasting’ forms of publication (in writing), such as print or online statements – a tweet, for example – whereas Slander is more transient and includes spoken words or gestures.

If you believe you have been defamed, it is important to seek advice without delay because the ‘Limitation Period’ (the time in which to issue a claim at court) for defamation is only one year from the date of first publication of the defamatory statement.  Once you are out of time, you cannot bring a claim in court.

Malicious Falsehood

A claim for malicious falsehood is usually made to protect economic interests and is sometimes brought as an alternative to a claim for defamation.

Malicious falsehood is the malicious publication of false words that refer to the claimant, his property or his business.  There may be a case for malicious falsehood where, for example, a reference to a third party’s goods has gone beyond comparative advertising and becomes malicious criticism.

IP Infringement

In some cases, online criticism can constitute an infringement of your IP rights.

For example, the criticism may make unfair reference to, and use of, registered trade marks; or there may be an unauthorised reproduction of copyright protected content.

There is no ‘one size fits all’ approach to addressing online criticism.  It may be appropriate, for example, to instruct a PR agency to assist in turning the negative comments into positive spin.

In other cases, a legal action or remedy may be the best choice for a business facing malicious and untrue criticism online.

There is a range of possible options:

  • Contact the Platform

Social media platforms have terms of service which prohibit malicious and defamatory content from being posted.

A complaint report can therefore be filed, seeking a take-down of the damaging comments.

Cripps can help by:

  • advising on the correct procedure and drafting the report/complaint to be filed, including where IP rights may have been infringed; and
  • liaising with the social media platform on any response received and/or queries raised.
  • Letter before Action

Seeking a take-down of the offending comments from social media is often just the first step in addressing the problem.

Unless resolved, the underlying complaint may still remain, and may re-appear in the form of new comments in the future.

Therefore, perhaps in conjunction with a take-down request to the social media platform, a direct approach can be made to the publisher of offending critical comments. Ideally that contact would take place ‘off line’, so as not to give the dispute the oxygen of publicity. 

The best format for the approach will vary from case to case.  In some cases we recommend a simple direct message, in others a formal Letter of Claim. Whatever the method used, the first communication should be carefully drafted, presenting the case in the strongest way, to have maximum persuasive impact.

Whatever the format, a range of remedies is available:

  • a takedown and retraction of the defamatory statement;
  • an undertaking not to repeat the same or similar comments;
  • a payment of compensatory damages; and
  • an apology.

Cripps can help by:

  • advising on the merits of the claim (and any other potential actions which may be possible aside from a defamation claim);
  • drafting the direct message or formal Letter of Claim;
  • advising on any response received, including the implications of any ‘offer to make amends’ made by the defendant (under the provisions of the Defamation Act 1996); and
  • advising on alternative dispute resolution methods including Mediation.
  • Contact the ISP

In certain circumstances it may also be possible to send a Take Down notice to the ISP (Internet Service Provider) hosting the website on which defamatory content appears.

Unless the ISP follows the procedures and timescales set out in the Defamation Act 2013 and the Defamation (Operators of Websites) Regulations 2013, the ISP may be held liable as a secondary publisher of defamatory material.

Cripps can help by:

  • advising on the ‘Notice and Take Down’ procedure (the law around this is complex); and
  • drafting and sending an appropriate Take Down notice.
  • Alternative Dispute Resolution (ADR)

Even in the most bitter of disputes, the courts encourage parties to seek settlement of their dispute through ADR.

ADR can range from negotiating settlement terms in an exchange of ‘without prejudice’ correspondence, to a full Mediation. 

Given the costs of pursuing a defamation claim through the courts, ADR is potentially a very attractive and effective option. ADR can be run alongside formal ‘open’ correspondence.

ADR should not be seen as a ‘second best’ resolution or outcome for a claimant, as it can offer distinct advantages over court proceedings. For example, an apology is not a remedy available at trial, but it can form part of a negotiated settlement in ADR.

Cripps can help by:

  • Advising on the ADR options available and formulating a strategy.
  • Court Proceedings

If the dispute remains unresolved, the next stage is to consider issuing a claim in court.

This is not a decision to be taken lightly, however, and we can advise on this in more detail if required.

If, however, the criticism is truthful and genuine, then there may be limited legal options to pursue the publisher of the critical comments.  For example, it is a defence to a defamation claim if the comments are themselves truthful, or that they are (absent malice) a person’s genuinely held, honest opinion.

If, for example, the criticism you receive is genuine negative feedback from a genuine customer, then the best approach may be to turn the situation into positive PR, by engaging with the publisher, responding appropriately and addressing the issues promptly.

Dealing well with a complaint can turn critics into advocates of your business; having a complaints procedure in place can help you identify issues early on and prevent them escalating.

There are various options available to a party that has been criticised online and no ‘one size fits all’.

The speed at which negative comments spread online means that time is of the essence when an issue arises. 

The law on defamation, malicious falsehood and IP infringement is complex and constantly developing.  The purpose of this note is to assist in providing an overall understanding of the legal context within which such claims operate.

This guidance note is not intended as specific legal advice.  Each case is judged on its own merits, against its own particular set of facts and will typically involve an objective assessment by the court of the precise words used.

If you require further guidance please contact Will Charlesworth at will.charlesworth@crippspg.co.uk or on +44 (0)1892 506 004