The speed and reach of online publishing means organisations are increasingly the subject of adverse content online.
It is not usually advisable to take action in respect of every negative comment, but sometimes material can cause serious reputational harm, or involve harassment of individuals. At this point, you may well consider possible options.
What Should You Do First?
An organisation's priority will understandably be to get the material taken down quickly. However, it is important to first consider its content.
If the author has a legitimate concern then, irrespective of whether it has been raised appropriately, consider whether you should be investigating it. If similar issues are raised again you could be criticised for 'ignoring' concerns raised online previously.
If the material identifies employees, for example, consider whether they should be made aware. Your insurers and regulator(s) may also need to be notified.
Possible Options
If the author is known, you could ask them to remove the material voluntarily. This is sometimes enough. However, depending on the personalities involved, this can create further adverse publicity.
You may be able to report the post to the website host/operator and ask them to remove it. Most sites provide details of how to do this, but whether this succeeds will largely depend on the nature of the post and where the host/operator is based. For instance, many US hosts are unlikely to remove defamatory material, preferring to protect free speech. The strength of your position may depend on whether an English Court order would be recognised in the relevant overseas jurisdiction.
If for example the posts contain threats to harm, or amount to harassment (which is also a criminal offence), then notifying the police may be an option.
Legal Action
Usually, an organisation's legal cause of action will be to bring a claim in defamation. A statement can be defamatory if it has caused, or is likely to cause, serious harm to your reputation. For organisations that trade for profit, "serious harm" means "serious financial harm".
There are a number of defences available in defamation, which may inform your strategy.
Anonymous Material
Unfortunately content is often posted anonymously, which can make it difficult to take action.
You may be able to apply to the Court for an order that requires, for example, the author's internet service provider or e-mail provider to disclose information they hold about them. This could ultimately help you identify the author and take further action. Unmasking an author's identity can often be enough.
If the author cannot be identified, it may also be possible to pursue the website host.
Individuals
Content often targets specific individuals at organisations. This can understandably be very difficult for them and they may benefit from their own legal advice, particularly as some potentially relevant claims can only be brought by them.
If the posts target your staff, you must ensure they are adequately supported. However this does not necessarily mean taking legal action. Any decision in this respect must be made solely in the organisation's best interests, and ideally without the individual(s) being involved.
This article also appeared on LawNet.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
