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Insight When Workers Use Social Media To Harm A Former Employer

By Bradlee R. Frazer,

The First Amendment is a wonderful thing. Perhaps you’ve never read it. In relevant part, it states: “Congress shall make no law . . . abridging the freedom of speech.”

There are certain exceptions to this Constitu­tional guarantee that we may say what we want, unencumbered by governmental interference or proscription. For example, United States Supreme Court Justice Oliver Wendell Holmes, Jr., once famously said that the First Amend­ment does not permit a person to shout fire in a crowded theater. There are other examples of certain kinds of speech that are not protected by the First Amendment: obscenity is one (think Lenny Bruce and Larry Flynt) and defamation is another.

If you defame someone (slander is regarded as defaming someone in speech; libel is doing it in writing), that defamatory statement may be regulated by the government despite the First Amendment. The method of regulation is typi­cally found through a civil court lawsuit presided over by a judge given authority by Ar­ticle III of the U.S. Constitution or by state laws and constitutions.

The founders of our country likely did not anticipate the myriad opportunities for the pub­lication of potentially defamatory utterances made possible by the Internet. This is especially true for employers confronting unkind (and probably mostly untrue) statements made by former employees on blogs, Facebook and Twit­ter, and on “gripe sites” like Yelp and RipOffRe-port.com. Even Google permits anonymous persons to leave reviews of an establishment’s products or services without any vetting of the poster to determine if they are an actual patron or merely a disgruntled former employee.

The law has been slow to catch up with the Internet in terms of providing speedy, effective remedies to address unkind or untrue former employee postings. This conduct is broadly re­ferred to as “Internet defamation,” and while many types of defamation occur on the web, the kinds to which former employers are subject often seem to be particularly vicious.

If you or your company have been victimized by Internet defamation, here are some things you can try to get the problematic post removed from the Internet:

  1. Contact the web site where the post ap­pears and attempt to invoke language from the site’s User Agreement or Terms of Service for­bidding defamatory content. The problem is that the web site manager will probably not take your word for it that the post is “defamatory.”
  2. Invoke an employee policy manual or other agreement to which the employee agreed during employment. Assuming the provisions survive termination of employment and assum­ing you can identify the poster, you could con­tact the former employee and remind them of their obligation not to say such things about the company.
  3. Sue the poster for defamation. (Note that in the United States it is very difficult to suc­cessfully sue the web site for posting the al­legedly defamatory content because of the deceptively named Communications Decency Act.) But even if you can identify the poster and sue them, you have to prove to the court that what was said was “defamatory,” meaning that it was untrue, stated as a fact (not an opinion) and was so bad in content that the plaintiff has been demonstrably harmed by it. In law school, we learned the example of a defamatory state­ment as being one stating that the plaintiff was possessed of a “loathsome disease.” And re­member that truth is an absolute defense to a defamation claim.
  1. Contact the poster (if you can figure out who it is) and try to “buy your peace.” Although such a strategy runs contrary to the notion that we do not negotiate with terrorists, many times such a strategy is the quickest way to get the con­tent pulled down. If you are losing revenue or In­ternet traffic due to a former employee’s postings, sometimes the path of least resistance is the best path to success.
  2. Vigilance and Search Engine Optimization (SEO). If you find a bad online post, there are ways to cause the bad post to be moved down to­ward the bottom of the list in a search engine result to lessen the likelihood someone will see it. For example, if you do not want potential customers to see a disgruntled former em-ployee’s post falsely accusing you of cheating your clients, if you can minimize the chances anyone will find it, the harm is mitigated, even if technically the post is still online. A number of commercial services out there offer this rem­edy, or, you can read a few online articles about SEO and try to do it yourself.
  3. If the poster has committed trademark or copyright infringement, you can use intellec­tual property law to try and get the posts re­moved by the website manager.

Some states have laws that deal with con­duct like online stalking and online bullying, but most of these do not apply directly to an employer dealing with a recalcitrant former employee. The best recommendations are to (a) work with an employment law lawyer to have enforceable employee polices in place that may be invoked on such facts, and (b) vig­ilantly monitor the Internet for potentially defamatory posts so that you can proactively take steps to “move them down” in search en­gine results to lessen the likelihood a potential customer will find them and be influenced by them.

Brad Frazer is a partner at Hawley Troxell, where he practices Internet law, publishing law and copyright law. He is a published novelist and a frequent author of Internet content. He may be reached at bfrazer@hawleytroxell.com.

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