So some keyboard jockeys said mean things about your company on the internet, and you’re mad enough to sue them and everyone they know. First things first: Calm down.
Online criticism isn’t a crime, and most of those comments are probably just opinions, not defamatory statements of purported facts. It’s also possible that you screwed up, and they have good reasons to be upset. If you think negative online chatter is hurting your business, you might be better off hiring a PR firm, not a lawyer (see sidebars).
But sometimes negative comments cross the line into defamation. We consulted Jude Bursavich and Chris Mason with Breazeale, Sachse & Wilson and Erin Kilgore with Kean Miller about some of the questions you should ask yourself before trying to take someone to court.
Is it true? If the answer is “yes,” stop right there. Truth is an absolute defense. If it ain’t a lie, it ain’t defamation.
Was it privileged? Statements by judges and legislators in judicial and legislative proceedings and good faith reporting of possible criminal activity to law enforcement generally are not defamatory.
Was it published? The comment must have been published so that it could be read by a third party other than the business allegedly being defamed.
Was your business injured? A statement can be defamatory if it harms your reputation or deters others from associating with you. In Louisiana, words that would harm your reputation by their very nature without considering the circumstances, such as accusations of criminal activity, are considered defamatory per se, which means fault is presumed but may be rebutted by the defendant. In less clear-cut cases, the plaintiff must prove falsity, malice and injury, in addition to defamatory meaning and publication.
Is it free speech? This question often comes down to fact versus opinion. For example, Hammond restaurant owner Donald Mashburn sued food critic Richard Collin and the Times-Picayune Publishing Corporation over a review that called his food “a travesty of pretentious amateurism” and his restaurant “an irredeemably ghastly mistake.” The Louisiana Supreme Court in 1977 said Collin’s statements “were expressions of opinion rather than statements of fact,” and so “were privileged unless published with knowing or reckless falsity.”
Was there malice? This is often very difficult to prove. It’s not enough to establish the statement is untrue. Whoever published the statement must have known it was untrue, or published with reckless disregard as to whether it was true or not. Basically, it has to be an intentional lie.
Is it worth suing? It might be better to simply ignore the post, rather than drawing more attention to it with a lawsuit. You might also consider contacting the online service provider, such as Facebook or Twitter, and asking them to remove the post if it violates their terms and conditions. Pursuing monetary damages may be futile, since the offending party probably can’t pay. Seeking injunctive relief is generally quicker and can lead to a judicial declaration that the comments were untrue and a court order commanding the offender to knock it off.
Can you win? Is your chance of success high enough to justify spending your own time and money and the risk of having to pay your opponent’s (likely substantial) legal costs if you lose?
What about employees? If a comment is made by an employee about the company, its supervisors, or other employees, it may be protected under federal or state laws, such as the National Labor Relations Act, federal or state anti-discrimination statutes, and whistleblower protections. An employer should treat employee complaints or comments made in cyberspace the same way it would treat complaints made in the “real world” and respond appropriately.
A good offense
Every business receives negative online comments. You’ll be more prepared if you’re consistently engaging the public, rather than waiting to react to something negative.
“The best defense is a good offense,” says Mary Ellen Slayter, CEO of Reputation Capital Media Services, a content marketing firm.
“The question is, is [a negative comment] the only thing people are going to see when they Google you, or are they going to find other, positive things?”
Don’t be shy about asking your customers to post positive comments on Facebook or Yelp. You might also ask for testimonials that you can post on your website.
Social media can provide avenues to promote your business. But if you’re not staying active, you’re probably better off staying off social media altogether.
“You can’t control what other people say, but you can make sure it’s buried in the context of a broader conversation,” Slayter says. “It looks weird if you’ve never said anything, and somebody says something bad, and you jump in and start commenting.”
The most common mistake, says Blake Killian, director of social media for Zehnder Communications, is trying to make negative comments disappear.
“In a lot of cases,” he says, “you can’t really do that.”
If they’re abusive or using profanity, they might be violating the terms and conditions of a particular platform, so you might be able to shut them up by complaining to the service provider. But if not, you may find that negative comments often contain information you can use to improve your business, Killian says.
If there’s a negative comment about your restaurant on Yelp, Killian suggests making followup comments to let the world know you’re addressing the issue.
“If you’re listening and working to fix the problem, you’ll get credit for that,” he says.
Of course, some people on the internet are just looking for a fight. If someone has a limited or exclusively negative comment history, makes sweeping negative statements without specifics, or shoehorns politics into every comment, you’ve got yourself a troll. Don’t engage the trolls. You’ll only encourage them and draw more attention to the original comment.
Building an online reputation
Baton Rouge tech entrepreneur Chris Martin got into online reputation management in 2006. His early clients were celebrities, politicians and business executives “who were having issues online” and wanted someone to “help them counteract those issues.”
Martin founded Repumatic in 2010 to “build out solid reputation management campaigns that are affordable to everyday people.” Some customers were haunted by false accusations that dominated their search results, while others were tired of being defined by a mistake made years ago. They wanted to build a more positive, or at least balanced, online reputation.
The online reputation management sector is crowded, and Repumatic is a growing but small player, with annual revenue of less than $1 million. All of their people work from home, and Martin says about 10 people are running campaigns at any given time. His writers are U.S.-based contractors, while his coding is done offshore to control costs.
“We’re like the diamond in the rough,” Martin says, touting the company’s technology and service.
Customers can get free or $19 per month “do-it-yourself” access to the Repumatic software platform to launch and manage professional branding sites and get notifications of online comments. Martin says the $199 per month “turnkey” service, which includes content written by Repumatic’s professional writers, is the fastest-growing aspect of his business.
His customers hope to suppress unwanted search results, build a professional web presence, and create a network of websites that link to and improve the search ranking of the primary site. Businesses want to create a buffer of positive online content about their brand that people will find before they get to the negative stuff.
Most people seeking goods or services visit a popular search engine and type in a few keywords. Martin says the top five results get about 70% of the clicks, and about 91% of people don’t go past the first page.
So if you’re an accountant in Zachary, and you’re listed 12th on page two of Google’s search results for “Zachary Louisiana accountant,” only about 10% of potential clients using Google are likely to come across your website, Martin says.
“You just naturally these days want to be ranked as highly as possible, especially for local businesses and local keywords,” he says.
During the late 90s and early 2000s it was much easier to game the system by artificially manipulating search results, Martin says. He says with Yahoo! and Bing, you still can, but Google is more sophisticated and changes its algorithms frequently.
But some things stay consistent. Google has said links always will play a role in how websites rank, Martin says. As long as people use search engines, they’ll probably keep reading posts with click-friendly titles. And having strong content on your website that people actually want to read always helps, he says.
When responding to negative comments, it’s important to be courteous and not get defensive, even when correcting false information. As for blatant defamation, Martin says finding the offender can be difficult, and court orders can be hard to enforce against someone who might be overseas.
After a decade in the reputation management business, Martin recalls exactly only one client that won a defamation case. For most people, he says, it probably isn’t worth the expense and effort to sue.
The post What are a company’s options when online chatter may be hurting business? appeared first on Baton Rouge Business Report.