Tag Archives: slander

The Fallout From Ill-Advised Tweets

During the presidential debate on Oct. 3, 2012, a KitchenAid employee used the corporate account to send a tasteless (some would say disparaging and grossly offensive) tweet regarding the president’s grandmother. KitchenAid quickly apologized to the president and his family and explained what happened. In other words, KitchenAid followed the “rules” of reactive reputation management.  

KitchenAid was praised for responding quickly. But the outrage about the tweet was overwhelming, if only for a short period, and underscores that companies need to consider their potential liability from ill-advised tweets.

A bit of background: Libel (written) and slander (spoken), collectively known as “defamation,” which is the general term used internationally, are civil wrongs (sometimes carrying criminal penalties) that harm a reputation, decrease respect, regard or confidence or induce disparaging, hostile or disagreeable opinions or feelings against an individual or entity. If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions decline to recognize any legal distinction between fact and opinion. 

Contrary to a general belief that insulting tweets (or comments online through Facebook, online message boards, etc.)  are exempt from libel laws because they are fleeting, libel laws apply to the Internet the same way they do to newspapers, magazines, books, films, etc. The same technology that gives you the power to share your opinion with thousands of people also qualifies you to be a defendant in a lawsuit.    

In considering your legal exposure if an employee may have committed libel, you must consider the country you live in, as well as your exposure to libel laws around the world.

U.S.

The medium for communication is irrelevant; even an email to a single person can be libelous if the sender knew a statement to be false, acted with reckless disregard for the facts or was otherwise irresponsible. To be libelous, the statement must also cause some damage.

United Kingdom 

The basis of British libel law is not substantially different from that in the U.S.: to protect the reputation of an individual from unjustified attack. In British law, a person is defamed if statements in a publication expose a person to hatred or ridicule, cause a person to be shunned, lower a person in the estimation in the minds of “right-thinking” members of society or disparage a person in his work. In the U.K, though, the burden of proof is with the defendant, while in the U.S. the plaintiff must provide the proof. Unlike in the U.S., there is also no provision in the U.K. that makes it harder for public figures to win a judgment–in the U.K., a public figure does not have to prove a statement was made with malice.

Almost all of the rest of the world

There is ever-expanding concern about the use of social media, especially Twitter, to post harassing, offensive and false statements that are defaming or invade another’s privacy. As one judge said: “Twitter as we all know is widely used by individuals and organizations to disseminate and receive information. It is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful.” ([2012] EWHC 2157 (Admin) at {23}. In India, amendments to the Information Technology Act, 2000 (IT ACT) specify that defamation via a computer or communication can lead to a prison term of three years and a fine. (The United Nations Commission on Human Rights ruled in 2012 that the criminalization of libel violates the right to freedom of expression and  is inconsistent with Article 19 of the International Covenant on Civil and Political Rights. The impact of this ruling, if any, is not part of the discussion in this article.) 

Now, let’s consider liability if you or an employee is the “retweeter”:

U.S.

If you retweet a libelous statement in the U.S., you or the company you work for  may be protected from defamation liability based on Section 230 of the Communications Decency Act, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Simply put, this means you cannot be sued for something you retweet, even if the original tweet is libelous, so long as the libelous content was created by a third party. However, if you did have control (it was KitchenAid’s corporate Twitter account)  or you add something defamatory, you could be held responsible. 

United Kingdom

Keir Starmer QC was addressing the London School of Economics about social media in 2012 when he was asked: “Is it an offense to retweet something grossly offensive?” He replied: “You retweet, you commit an offense under the Act.”

The “Act” is the Communications Act, which outlaws sending a tweet that is “grossly offensive or of an indecent, obscene or menacing character.” A person can be prosecuted if he “causes any such message or matter to be so sent.”

For example: In 2012, the British Broadcasting Corporation settled a libel suit for about $300,000 with a UK politician. (The BBC reported that he was involved in a child sex abuse scandal but should have known the statement was false.) The UK politician then sought libel damages from at least 20 “high profile” people who tweeted and retweeted the report. 

Because tweets cross borders so easily, Twitter users in the U.S. and elsewhere should take the UK law into account.

India

Some legal scholars in India say that even accidentally retweeting an offensive tweet can create liability.

Freedom of Speech?

While freedom of speech in the U.S. is a constitutional right, legal exceptions make that right limited. For example: Speech that involves incitement, false statements of fact, obscenity, child pornography, threats and speech owned by others are all completely exempt from First Amendment protections. The U.S. Supreme Court has ruled that the First Amendment does not require recognition of a privilege for those stating opinions. Therefore, the  position that nothing should stand in the way of unabashed free speech on the Internet is like the ostrich with its head in the sand. Defamation and speech intended to inflict severe emotional distress is not protected.States can and do regulate this type of speech.

So here is the takeaway:

If you or an employee tweets or retweets something defamatory, you may face a libel claim. It doesn't matter how quickly you delete the entry or whether you follow up with a correction or an apology. It also doesn't matter where in the world you are.

Disclaimer: The information contained in this article is provided only as general information and may or may not reflect the most current developments legal or otherwise pertaining to the subject matter hereof. Accordingly, this information is not promised or guaranteed to be correct or complete, and is not intended to create, or constitute formation of an attorney-client relationship. The author expressly disclaims all liability in law or otherwise with respect to actions taken or not taken based on any or part of this article.

Social Media And The Insurance Implications

Most marketing and communication departments know all too well that social media and social networking sites are a treasure trove of opportunity for elevating your personal or corporate brand. Employees use social media for personal use, but also use it as a forum to talk about their boss, their company, their products, their problems and whatever else is on their mind. There are 200 plus social media sites in English alone, Facebook recently reached one billion users, and Twitter puts out more than 170 million tweets per day. That is a lot of free advertising!

However, what many businesses fail to remember is that, despite all of the positive aspects social media brings to a firm's marketing, communication, and sales efforts, it's also ripe with opportunity to damage their brand and cause a financial loss. While it's free marketing, it's also a lot of unedited content being published online that could be about your business, about your products, or attributed to you. Could a competitor feel that your employees are slandering their people or products? Could a competitor gain inside information about your organization? Could an employee divulge information that could get them fired? Could you or your employees inadvertently offend prospects and clients? In short, yes. As social media use continues to evolve and grow, it's important to consider this exposure to your organization.

Using Social Media To Generate Business Leads
All of this can be scary, but you can't ignore the great opportunities created by social media. Any organization not taking advantage of social media sites is signaling that it is not evolving with the times, and there is nothing close to matching the immediacy of broadcasting your news through social networking sites. A well-crafted social media strategy can generate a lot of interest in your product or services and drive traffic to your website where more specific information can be provided.

“In time, the proper execution of a focused social media strategy is an efficient means of staying in front of prospects. When the prospect has a business problem, your positioning as a credible, knowledgeable resource can help you get in the door and, hopefully, close the deal,” says Randy Stoloff, Director of Marketing and Social Media at AmWINS Group Benefits in Warwick, Rhode Island.

It is critical to have all content reviewed by someone within your organization that can be responsible for stopping improper content from being released. It's also important to review applicable insurance policies such as a website media policy or cyberliability policy to be sure social media activities are covered.

Using Social Media For Crisis Response
Imagine a time down the road when your best customers follow your social media feed and you need to get news out in a hurry about something that could cause your most prized customers harm. Assuming you have or hire qualified public relations professionals that can help you craft the proper way to phrase the announcement, you can get important news out immediately to show your concern for your customers and for transparency. Social media provides the most immediate way to communicate to your target audience. There are many insurance products currently available that assist with handling the public relations aspect of a crisis response. Having your social media presence established prior to a crisis will help you deal with the crisis in a targeted fashion.

Can Social Media Sites Be A Network Security Risk?
Besides the potential for hackers to use employee information on social media sites to figure out passwords, the sites can also be used to transmit computer viruses and other dangerous malware. As a result, many corporations block employee access to social networking sites. If the corporation has a cyberliability insurance policy in place, be sure it addresses security issues emanating from social media. The coverage may be limited to networks owned or controlled by the corporation.

Should I Address Social Media In My Employee Handbook?
This is a topic that requires legal counsel with experience in employment law as well as social media. It makes sense as a business owner to establish a guideline on what social media activities are permissible for employees, but it must be carefully worded. The National Labor Relations Board has published guidelines that may help. Most companies work very hard to establish a professional image and reputation. Employees often mistakenly think that commenting in social networking sites is somehow exempt from personal responsibility. The press is full of examples of disgruntled employees commenting on working conditions, complaining about their managers or coworkers, or commenting on confidential internal activities. Employees have been terminated for their conduct and they've sued for wrongful termination. You are likely to find coverage for the wrongful termination claims on your employment practices liability (EPL) insurance policy. Working with a professional is critical for navigating this minefield. You may not be able to avoid the litigation, but you can lay the groundwork for an effective defense.

Do I Need A Social Media Component In My Employment Contracts For My Executives?
Your top executives can also make mistakes using social media. Sensitive information can be leaked out accidentally by people who see the most sensitive information. Similar to non-executive employees, managers who have been terminated due to their social media activities have sued their employers for wrongful termination. Again, look to an EPL policy for coverage for that type of claim.

Should I Review The Social Media Content Posted By Job Applicants?
Many states have enacted laws barring employers from requesting full access to an applicant's social media profile. We have all heard stories about a prospective employer seeing improper pictures or comments by the applicant which influence the decision to hire or not hire them. Some employers have taken it one step further and requested login credentials from job applicants in order to see all the content they have posted. It seems like an obvious invasion of privacy, so laws are being written to protect the rights of job seekers. The claims that can arise from this scenario could have coverage apply under the “wrongful failure to hire” coverage on an employment practices policy, as well as an “invasion of privacy” policy as part of a cyberliability policy.

Scared Yet?
There are reasons to be concerned, but the opportunities need to be investigated with a proper foundation of preparation. It is also important to remember that there are insurance products available to help protect you after missteps. If you have an employment practices liability policy, you likely have some protection from wrongful termination claims and invasion of privacy claims brought by your employees. If you have an internet media or cyberliability policy, you could have remedies for allegations of libel, slander, defamation and invasion of privacy claims brought by other parties. A strong cyberliability policy will have protection from breach of security claims if hackers use social media to access your computer network for malicious purposes. It's possible that other insurance products can offer assistance as well. AmWINS represents multiple insurers with all of these insurance products and can help you select the proper coverage for you and your clients.

The Insurance Implications Of Social Networking Websites, Part 2

This is the second part of a six part series of articles discussing insurance coverage for claims that can be brought against individuals or companies because of the use of Social Media websites. Additional articles in this series can be found here: Part 1 and Part 3.This article discusses coverages potentially triggered under Coverage B — Personal and Advertising Injury and any applicable exclusions.

Personal Injury Offenses Covered In Commercial General Liability And Homeowners Policies
Most Commercial General Liability policies contain Coverage Part B that provides coverage for personal and advertising injury. Some homeowner and renters policies, but not all, provide coverage for personal injury. Carefully review the policy to determine if it does provide personal injury coverage. If not, then coverage must still be analyzed under Coverage Part A for bodily injury coverage, which will be discussed in part three of this series.

The definition of “personal injury” is typically:

13. “Personal and advertising injury” means injury including consequential “bodily injury” arising out of one or more of the following offenses:

a. False arrest, detention or imprisonment;

b. Malicious prosecution;

c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies committed by or on behalf of an owner, landlord, or lessor;

d. Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services;

e. Oral or written publication, in any manner, of material that violates a person's right of privacy;

f. The use of another's advertising idea in your “advertisement” or

g. Infringing upon another's copyright, trade dress, or slogan in your “advertisement.”

The policy may contain additional offenses or endorsement that modifies the definition of “personal injury.” However, typically only subsections d (libel/slander) and e (invasion of privacy) are typically implicated when a claim is presented for claims related to social media.

To trigger “personal injury” coverage, the complaint must arguably allege a claim that constitutes at least one of the offenses listed in the policy. The policy does not provide coverage for other torts alleged in the complaint that do not constitute specifically enumerated offenses contained in the definition of “personal injury,” but that may bear some similarity to those offenses listed in the policy. There is no coverage if the complaint does not allege or the plaintiff does not recover for an enumerated offense.

There may still be coverage under the policy for a claim asserted in the Complaint that alleges a non-enumerated offense so long as it occurred during the course of an enumerated offense.

In Western Cas. & Sur. Co. v. International Spas of Ariz., 130 Ariz.76, 634 P.2d 3 (1981), for example, the insured had leased a portion of its premises for the operation of a beverage service. The insured had terminated the lease and excluded the lessee from the premises. The lessee sued the insured for breach of the lease, conversion of personal property, conspiracy to interfere with business and contractual relationships, and imposition of a constructive trust. The insured sought “personal injury” coverage under a Commercial General Liability policy, arguing that the lawsuit alleged a wrongful eviction even though no such claim was asserted.

The carrier argued that the policy only provided coverage for wrongful evictions of patrons to the insured's facilities and not the wrongful eviction of its customers (i.e., lessees). The Arizona Supreme Court rejected this contention and stated that the policy contained no such restriction limiting liability. Instead, the Supreme Court held that the carrier had an initial duty to defend because two of the counts (conversion and interference with business relations) alleged torts committed during the course of the alleged wrongful eviction.

In the social media context, a complaint may not specifically allege an invasion of privacy or a defamation claim, but alleges that the defendant intentionally or negligently inflicted emotional distress when it published defamatory comments about the plaintiff. Under those circumstances, the policy may provide coverage because the emotional distress claim, although not an enumerated offense, occurred during the course of an enumerated offense; namely, defamation or invasion of privacy. A similar analysis would apply if the complaint alleges an intentional interference with business relationships claim that arose out of the publication of defamatory materials or material that invades the privacy of an individual.

Some policies contain the enumerated offense “outrageous conduct,” but may not define what constitutes the offense of “outrageous conduct.” A savvy insured's attorney may argue that because the term “outrageous conduct” is undefined, it is ambiguous and should be construed against the carrier to provide coverage for the social media claim; more specifically, that the conduct of posting any comments, pictures, videos, or other items on the Internet is outrageous. Some jurisdictions have held that the lack of a definition of an operative term in a policy does not necessarily render the term ambiguous. In determining whether a policy term is ambiguous, a court may first examine the purpose of the term or phrase, public policy considerations, and the purpose of the transaction as a whole and also construe the policy's provisions according to their plain and ordinary meaning.

The term “outrageous conduct” is defined by Black's Law Dictionary as “Conduct so extreme that it exceeds all reasonable bounds of human decency. See EMOTIONAL DISTRESS.” Black's Law Dictionary also defines “emotional distress” as follows:

A highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury) that results from another person's conduct; emotional pain and suffering. Emotional distress, when severe enough, can form a basis for the recovery of tort damages. — Also termed emotional harm; mental anguish; mental distress; mental suffering. See INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. Cf. mental cruelty under CRUELTY. [Cases: Damages 48-56.20. C.J.S. Damages §§ 94-104; Parent and Child § 344; Torts §§ 66-83.]

Thus, the offense of “outrageous conduct” involves the infliction of mental distress. Indeed, the term “outrageous conduct” is a legal term of art that refers to a claim typified by the Restatement (Second) of Torts § 46. Various courts have concluded such, albeit in the non-social media context. See, e.g., Hines v. Hills Dept. Stores, Inc., 454 S.E.2d 385, 390 (W. Va. 1994) (“Our review of the case law discussing the tort of outrageous conduct illustrates that it is a difficult fact pattern to prove. A certain level of outrageousness is required, as explained in the Restatement (Second) of Torts….”); Kelly v. Resource Housing of Am., Inc., 615 A.2d 423, 426 (Pa. Super. 1992)(“The tort of outrageous conduct causing severe emotional distress is outlined at the Restatement (Second) of Torts, § 46….”); LaBrier v. Anheuser Ford, Inc., 612 S.W.2d 790, 793 (Mo. Ct. App. 1981)(“Missouri has recognized the tort of outrageous conduct as defined by § 46 of the Restatement (Second) of Torts”).

Whether posting inappropriate comments, pictures, videos, etc. constitutes outrageous conduct is probably a factual issue that will not be addressed in this article. Suffice it to say that in reviewing policies, attorneys, adjusters, and insureds should be careful to review the actual offenses listed, review the relevant case law addressing those enumerated offenses, and any legal or common dictionaries that may define such phrases before making a determination whether the social media claim may be covered by the policy.