Social Media Words and the Law

Dealing with both positive and negative social media reviews is a way of life for small business owners. My consumer travel agency was a victim of a defamation campaign.  Why? I have no idea because I am unable to identify the posters.  This fiasco occurred on a popular site where many followers read their comments to influence their purchasing travel.

Someone using the name of a fantasy comic book character and listing their residence as the United Kingdom signed some of the posts about my business.  I calculate this same person writes so many comments; they take ten to twelve vacations per day for all of the first-hand travel knowledge he or she proclaims to experience. Since my company does not sell to the United Kingdom, I have no idea who the person is or why they have so much self-proclaimed knowledge about my agency.

There are many excellent books and training programs available to help entrepreneurs develop online marketing campaigns that include social media use.  However, per Entrepreneur magazine writer Jason Daley, bad information is the internet's bread and butter.[i] How does a small business owner use social media effectively, and more importantly, how does a small business owner defend itself from any potential deliberate online false information?

One way is to know the law. I owned businesses before the digital age and through the digital age. The online craze is still the Wild West when it comes to regulations. Before social media, people wrote letters to the editors of newspapers and magazines in the hope of getting their message published.  Today, they use social media to express their thoughts and say anything without understanding their words' consequences.  Per Jason Daley, negative news will travel faster than positive news.  Even my family members can't wait to call me with the most dramatic news story they recently read.

Social media websites allow people to post reviews and create accounts using fake names. These sites do not verify the accuracy of the information, the author's validity, or even if the poster is a legitimate customer.  Amazon has taken the step to validate their product reviews by indicating if the author of the review purchased through Amazon.  As a small business owner, prepare for any online comment or statement about your company, whether posted by real customers or not.

In my entrepreneurial experience, happy customers don't go out of their way to post a positive review for their purchase. Some online social media sites limit how many positive reviews one person can post.  If someone continues to post only positive reviews, they block their future positive posts by forcing them to leave negative reviews.

When I experienced my unknown fantasy character author, I hired a law firm specializing in online defamation law.  My lawyer explained she tried to leave numerous legitimate positive reviews on one consumer social media site.  She explained how she could write only five positive reviews before it expected her to leave negative comments.  I described how that might work based on my previous life as a computer programmer.  This site must use an algorithm to prevent business owners from using a phony identity to leave numerous positive reviews about their own companies. 

Internet filtering and bias is a hot subject. A documentary,[ii] The Creepy Line, discusses how major internet service providers filter data and show readers results based on their proprietary algorithms.  On September 21, 2011, the United States Senate held a hearing[iii] before the Subcommittee of Antitrust, Competition Policy, and Consumer Rights with Nextag, Inc, Google Inc., and Yelp, Inc.  At this hearing, Senator Grassley of Iowa asked Eric Schmidt, Executive Chairman of Google, about its market power to manipulate the search and drive web traffic to its sites to the detriment of small business. Eric Schmidt answered he is satisfied the vast majority of small businesses are incredibly well-served by Google's approach.  He stated he believes the Google system promotes small businesses over larger firms because it gives them a hearing and a role they would not otherwise have because of Google's algorithms.  However, in my experience, these algorithms are only as good as the accuracy of the data it evaluates.

One small business owner told me they successfully get customers to leave positive reviews by offering gift cards.  My agency's customer service team repeatedly asked satisfied customers to leave reviews on travel social media sites about their experiences. Even though these customers went out of their way to call and relay how happy they were with our service, they rarely left a social media review.

To help remedy this situation and make it convenient for my customers, I installed a separate system where customer service reps could transfer these calls to leave a recorded message about their experiences.  I converted the recordings and attached them to my website for future customers to review. This process made it readily available for prospective customers to listen and get travel comments from real buyers. 

The current online social media craze can make or break a small business.  Many social media websites allow anyone to say anything without consideration for laws.  According to the Reporters Committee[iv], libel's definition occurs when a false or defamatory statement about an identifiable person is published to a third party, causing injury to the subject's reputation.

Recently a wedding photographer[v] successfully sued a customer bent on putting the photographer out of business when she charged them an additional $125 for a photo album. They insisted she should give them the album for free since they already spent a great deal of money purchasing their wedding photos. The couple went to social media and posted statements like, "I'm pretty sure her business is ruined." The customer continued posting social media statements hoping her comments "Goes viral" and "Justice has been served." The photographer took this couple to court and won.[vi]  The jury awarded the photographer one million dollars. Beware of what you post as a consumer on social media. These customers did not understand defamation and extortion laws.

Defamation is the making of false statements damaging that business's reputation. There can be legal consequences for the person who makes such a statement. This law applies to both written and oral comments published to third parties.[vii]

Extortion is the gaining of money or property by force or threats. These threats can include violence, property damage, and harm to one's reputation. If interstate commerce is involved, it can be considered a federal crime. [viii] Interstate commerce laws include any commercial transactions that cross state boundaries. Since many online businesses have no brick and mortar locations, most online transactions are under interstate commerce laws.[ix]

Unidentified people left reviews about my agency on a popular travel site. A person listed my company under a category called "Bargain Travel." My company's marketing message included phrases about customer service and convenience. Although my travel agency occasionally offered sale prices, it never advertised as a "Bargain" travel agency. This unidentified person's comment left on this social media site led potential customers to believe my agency sold as a low-cost provider, enticing people to begin price shopping after purchasing and booking travel. My attorneys were unable to get this website to change the "Bargain" label.

In addition to defaming my travel agency, I, too, was a victim of personal defamation by one of its customers.  An unhappy customer rallied another friend of hers, another customer, to defame me personally and put my travel agency and me out of business. They left social media messages warning people not to purchase travel from my company.  They also attempted to leave messages on my Center for Women Business Owner website warning people not to listen to me as a business advisor.

My attorneys were unsuccessful in getting social media sites to remove reviews and provide me with the real contact information of those people I could not identify. Social media sites are protected by an FCC law code 230 protecting neutral public forums.[x] This law states that no provider of an interactive computer service shall be held liable. The individuals posting content on public social media sites are responsible for their writings' legal ramifications. People posting online are liable for the information they write and legally accountable for backing up their data. For those comments where we could identify people, my lawyers sent cease and desist letters explaining all of the defamation and extortion laws they violated. These customers agreed to remove their online comments, and I dropped potential lawsuits. Lawsuits would not result in enough financial compensation to make up my losses. I could make better use of continued legal fees to recapture the market share I lost caused by unsubstantiated negative reviews.

I lost a great deal of money during the time it took to hire an experienced law firm. We could not identify all the posters; their comments are still available on social media sites today.

In Thomas L. Friedman's book, "Thank You For Being Late: An Optimist's Guide to Thriving in the Age of Accelerations,"[xi]  Mr. Friedman discusses how rapidly technology comes and goes with a five to seven-year lifespan.  Yet, it now takes us ten to fifteen years to understand the technology and build new laws and regulations to safeguard society.  How, as a small business owner, can you protect yourself from an online smear campaign from people who may not even be your customers?

My lawyers suggested defamation and extortion language to all terms and conditions for each of my sales. They also recommended I enforce a strict company policy for any employees and their use of social media mentioning my company.  This language explained the legal ramifications of any defamation or extortion against my business.  This action will not stop phony online reviewers. Still, perhaps it will discourage unhappy customers from seeking revenge and instigating a lynch mob of negativity across the internet to put you out of business.

I suggest you obtain legal advice before you attempt to add anti-defamation and extortion language to your sales or employee policies' terms and conditions. Establish a process to track potential media sites that can harm your business and retain a top defamation legal firm to be ready to act before too much damage is done.

Social media is an easy target for your competitors to attack your business using fake reviews.  According to a Hootsuite blog[xii] posting,  social media advertising budgets reached $31 billion in 2016.  Social media spending in the United States alone will increase to $76 billion by 2020[xiii]. Social media is here to stay, and small business startups will have to learn how to manage their new businesses within the social media realm.

Because of the length of time it took me to defend myself; these posts did a great deal of damage to my brand.  In an attempt to overcome this loss, I launched new brands.  A good friend of mine purchased travel under one of these new company names. This brand was not available to the general public. To get a jump on advertising this new entity, my friend offered to leave a review. She left a generic review stating she was happy with the travel and service.  Within minutes of her posting, people I never heard of began posting negative reviews. They named their residences as living in parts of the world where I did not sell.  Through all of this, we only had one customer, my friend.  I am very suspicious about how this website is managed.  Is this site rewarding people based on how many reviews they post? Are my competitors attempting to put me out of business through social media?

My attorneys attempted to get these reviews removed by legally approaching the social media site, asking for the actual customers' validity. Courts of law ordered that social media sites do not have to remove negative reviews. [xiv] The Guardian reported that as the largest monopoly in the United States, Google is one of the largest spenders of lobbying dollars. Google controls five of the top six billion-user web platforms.[xv] 

I had issues where people created social media pages using my brand. Someone made a page with my company name asking readers to file their complaints. When my attorneys approached this site to remove the page, they responded by sending us their policy, stating, "Only the person who created the page can remove it." Small business owners must be aware anyone can create an identity on social media using your company name.

After several legal attempts, it became apparent the social media world is so large I could not afford a lengthy legal defense.  In other words, their lawyers are bigger than my lawyers.

A business owner should prepare to defend themselves from online defamation.  Search for experienced legal advisors and learn your state's social media laws or international laws if your business sells out of the country. In many states, the statute of limitations for filing a lawsuit against online defamation could be as short as six months.  After that, online news is embedded on the internet for life.

Key Points: 

• Include a budget for managing social media reviews
• Retain an online defamation lawyer
• Hire a professional internet reputation company to manage online crisis
• Request reviews from legitimate customers from the first day of business launch
• If the review is placed on a social media site that allows the merchant to respond, defend your position. 
• Enforce anti-defamation policies as part of the business. 

If you are launching a new business startup targeting consumer customers, beware that my experiences can happen to you. With social media sites protected by law and their unwillingness to verify or release the identity of those leaving posts, small business owners must prepare to become innocent victims. New startups must budget for a costly legal defense against the social media world.  

Written by Darlene Ziebell

[i] Jason Daley, Entrepreneur, September 13, 2013  https://www.entrepreneur.com/article/227394

[ii] https://www.thecreepyline.comThe

[iii] https://www.govinfo.gov/content/pkg/CHRG-112shrg71471/pdf/CHRG-112shrg71471.pdf

[iv] https://www.rcfp.org/digital-journalists-legal-guide/libel

[v] https://petapixel.com/2017/08/01/wedding-photographer-wins-1-08m-defamation-suit-couple/

[vi] https://www.washingtonpost.com/news/true-crime/wp/2017/08/01/they-trashed-their-wedding-photographer-over-a-125-fee-so-a-jury-told-them-to-pay-her-1-million/?utm_term=.47135b6fb2f4

[vii] https://www.minclaw.com/legal-resource-center/what-is-defamation/

[viii] https://criminal.findlaw.com/criminal-charges/extortion.html

[ix] https://www.britannica.com/topic/interstate-commerce-United-States-law

[x] http://www.medialawmonitor.com/2016/08/the-test-of-time-%E2%80%A8section-230-of-the-communications-decency-act-turns-20/

[xi] Thank you for being Late, An optimist's guide to thriving in the age of accelerations, Thomas L. Friedman, Farrar, Straus, and Giroux, 2016

[xii] https://blog.hootsuite.com/social-media-advertising-stats/

[xiii] https://komarketing.com/industry-news/survey-social-media-marketing-spend-is-on-the-rise-in-2019/

[xiv] https://www.nytimes.com/2018/07/03/technology/yelp-negative-reviews-court-ruling.html

[xv] https://www.theguardian.com/technology/2017/jul/30/google-silicon-valley-corporate-lobbying-washington-dc-politics