Beware defamation lawsuits from social media use: lawyer

As social media increasingly becomes a legitimate tool within the business, one lawyer warns it’s really only a matter of time before defamation lawsuits start resulting from employees’ unchecked comments that get posted while at work or using a work machine.

“Given how social media is easy to use and how instantaneous it is, the type of comments that get made on occasion are not perhaps as well thought out as they might have been in years gone by,” said Kevin McGivney, lawyer who specializes in defamation law at Toronto-based Borden Ladner Gervais (BLG) LLP.
The challenge for many businesses is keeping up with the speed at which social media has taken flight and the degree to which employees are using the platforms for work, said McGivney.

Moreover, the natural informality of social media conversations means that comments can be misconstrued as offensive when they were intended as a joke, or the original context was lost in the shuffle, said McGivney. “The means of communication is a bit of a trap,” he said.

While there haven’t yet been many defamation lawsuits relating to social media in Canada, McGivney said the legal process is such that there is often a lag between the incident in question and a lawsuit and trial. But, the trend of defamation lawsuits with social media is “undoubtedly on its way,” he added.

McGivney outlines several tips to help businesses mitigate legal risks:

1.Establish a clear policy of use of social media using company machines.
2.Educate employees, by way of Webinars or staff training sessions, on the policy and potential legal consequences of defamatory comments.
3.Establish a team of reviewers to check outbound comments before posting.
4.Encourage staff to “pause and reflect” before making comments on social media sites.

Sameer Patel, enterprise 2.0 analyst with Constellation Research Inc., said policies governing employee behaviour have long been taken seriously in highly regulated industries, such as financial services and health care, but social media only “exasperates the need.”

While some organizations have taken the extreme approach of outright banning social media, Patel said the trend of Web-savvy employees using social media apps for their jobs is less about security than it is about entitlement.

Patel agrees that defamation lawsuits related to social media will start to become popular, but that opposing forces, such as free speech and common sense, will work to counter that trend.

“We can freak out here and completely try to stop everything as these channels have exploded. Or, just use those commonsensical measures to understand what is the right governance model to make sure we fine-tune our efforts to not get sued for defamation,” said Patel.

McGivney expects, that in the world of social media, defamation law will start to change, with a large part of that change occurring as a result of unfortunate lawsuits gone public.

But businesses are already beginning to take potential defamation lawsuits quite seriously because the damage can work both ways, said McGivney. For instance, the same business is also at risk of negative comments made by others in the social media sphere.

Follow Kathleen Lau on Twitter: @KathleenLau

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