Online forums where anyone can post comments, reviews, or opinions about a company are growing in popularity. As a result, employers are finding postings by former employees who may have left on “bad” terms and now share their unhappy feelings with the world. Often such postings – while annoying and potentially embarrassing – are well within an employee’s rights. Companies need to remember that the former employee will likely soon grow tired of the cyber smear campaign, and such posts do not often cause meaningful damages (particularly the type that can be proven in court). Additionally, where such posts are on sites like Twitter or Facebook, the daily volume of postings means that any bothersome posts get moved down the feed pretty quickly. Most of the time the employer’s best bet is to follow the advice of Disney’s “Frozen” and just “Let it Go.”
But sometimes a former employee’s postings cross the line into false and defamatory statements that truly affect the company. Employers have options to consider to try to stop these postings and prevent further damage. Some of these options are:
1. Issue a press release/formal response. Where the criticism is so extraordinary that it is damaging the business, an employer could post its own statement or respond via Twitter/Facebook. But be careful; this approach might fuel more attention on the original post.
2. Contact the internet service provider (ISP). The company could demand that the ISP: (1) remove the post(s), (2) identify the poster, and (3) retain all evidence concerning the origin of the postings. Where the postings themselves demonstrate defamatory/blatant misrepresentation intended to cause harm, an internet site may remove the postings as a violation of its terms of service (though this outcome is somewhat rare because ISPs are typically immune from liability for the defamatory statements of third-party users under the Communications Decency Act of 1996).
3. Cease and Desist Letter. A letter demanding the poster stop may be sent – if the company can identify the poster. The letter should outline claims that the company would bring against the former employee, including a request for attorneys’ fees and an injunction. Depending on whether the former employee is covered by an arbitration provision that survived termination (such as in a severance agreement), such an action may have to proceed via arbitration rather than in court.
4. Litigation. A lawsuit (or demand for arbitration) may be brought seeking damages and retraction of damaging, malicious misrepresentations as well as for breach of any relevant employee confidentiality agreements. Defamation claims are difficult to win for companies because they typically require proof not only that the postings caused actual damages to the company, but also that they were malicious misrepresentations rather than mere opinions. Where statements are made on social media sites where readers expect to see opinions, courts have found that such postings are more likely opinions rather than misrepresentations of fact. This is significant because, unless enough specificity is provided to convince a court that measurable economic harm has been done by the disparaging postings, the poster’s opinion may be viewed as protected speech, and fees and costs can be awarded against the employer under anti-SLAPP statutes.
While often the former employee is simply blowing off steam and the defamatory postings will peter out without much fanfare, employers should know that these (and other) options are available to help stop defamatory postings or any further damage to the company’s reputation. Just be careful that the cure is not worse than the harm itself.