Here's a round-up of the key things to consider when managing the reputation of your brand.
Monitoring & capturing
From a practical perspective, to protect your brand from damaging comments you need to know when they occur.
There are a range of tools (from setting up a Google alert to more sophisticated software) that allow you to keep track of what is being said about your brand on social media, review sites, blogs and forums. If you are alerted to a damaging comment, the evidence should be captured either by taking a screen shot or printing the page where the comment appears.
Broadly speaking the law offers protection against unfair criticism, to the extent that such comments are damaging, misleading and untrue, and there are three main causes of action that can come into play.
In order for a comment to be defamatory, the comment must lower the individual or the company in the estimation of right thinking members of society generally.
The comment must also cause (or be likely to cause) serious harm to an individual or a company's reputation. In the case of a company, 'serious harm' means demonstrating actual or likely serious financial loss.
If these elements can be proved, there are defences that also need to be negotiated. For instance, a statement cannot be defamatory if it is true, or if it is an honest opinion based on fact.
Additionally, the defence of privilege arises in certain situations, such as parliamentary or court proceedings and reports on the same, as a matter of public policy.
To succeed in a claim for malicious falsehood, it must be proved that the statement in question is false, caused financial loss and was published maliciously.
Proving malice can be difficult and, unlike in a claim for defamation, the burden of doing so is on the part of the claimant. Defamation is, therefore, a potentially easier claim to bring.
However, as the law of defamation seeks to protect the reputation of individuals and companies, it is less well suited to false statements that refer exclusively to a particular product or services and it is in this situation that claim for malicious falsehood are most common.
Unfair comparative advertising
Comparative advertising arises when an advert identifies a competitor or the goods or services offered by a competitor.
In order to comply with the law, the advert must compare goods or services meeting the same needs or intended for the same purpose, and if the advert is misleading, or takes advantage of or discredits a competitor's trade mark or name, it will be unlawful.
In addition to bringing a claim against the company that published the misleading advertisement, a business can make a complaint to the Advertising Standards Authority (ASA).
Following an investigation, an ASA decision can lead to a range of advertising sanctions and adverse publicity against the unlawful advertiser. The ASA can also make a referral to bodies such as the Office of Fair Trading, to initiate further action.
Removing the material
Individual posters can be operating online anonymously or under a pseudonym, making them difficult to identify or contact. In the first instance, consider reviewing any of the website operator's applicable policies on the site and whether there is an online form that can be used to request a takedown of the comment.
If the author is identifiable, depending upon the particular set of circumstances, it may be preferable to contact the author informally, at least at first as this may lead to the comments being removed quickly at little expense.
It should be noted that it is a requirement of the ASA to liaise with a competitor in advance of making an advertising complaint. The Defamation Act 2013 sets out a detailed process whereby a website operator is compelled to liaise with the author of a post and obtain contact details of the author if none are available.
A website operator can become liable for the defamatory comments if they do not follow the process in the Defamation Act 2013. If no dialogue with the author is forthcoming, the website operator can suspend or disable the offending web page.
If statements are not removed and it is decided that they are sufficiently damaging, there may be no alternative but to issue proceedings against the author and/or website operator.
However, once proceedings are started both sides are likely to start incurring legal costs and the comments, which might otherwise have "blown over" will potentially receive much more publicity.
In relation to damages, while defamation may conjure images of multi-million pound sums paid to celebrities, in practice even if defamatory statements have been published in the national press, the level of damages recoverable may not be as significant as the costs of bringing a claim.
There are a range of steps that can be taken to protect your brand from the consequences of false and damaging online reviews. However, it is important to think strategically and consider all the potential consequences.
Heavy-handed threats (even if based on perfectly justifiable legal principles) can generate their own negative publicity, which could be more damaging than the original statements. It is, therefore, important to bear in mind the overall objectives and follow a clear strategy that is appropriate to each particular case.
- Tom Lingard is a partner at Stevens & Bolton. Tom advises his technology clients on all aspects of intellectual property and technology law. He has extensive litigation experience and regularly advises businesses on the protection, exploitation and management of IP and technology.