IP Tech Knowledgy

As the internet has become the principle venue for public discourse, review sites have become more prevalent, and inhibitions about expressing opinions online have decreased, the problem of online disparagement, and how to address it, have become more important. Social media advisers can provide strategies for avoiding and dampening the effect of disparagement, to some degree. The law can help address online disparagement, likewise, to some degree.

The key hurdle to a legal attack of online statements is the First Amendment. In 1997, the U.S. Supreme Court first ruled in Reno v. ACLU that the internet is a free speech zone. One is allowed an opinion. Even anonymous opinions are allowed by law if they are not defamatory. Thus, only false statements that are not opinions even qualify as capable of avoiding the application of the First Amendment.

Commercial disparagement — called “injurious falsehood” in Maryland — is one method to redress the harmful statements against a target. Injurious falsehood is the publication of a derogatory statement calculated to prevent others from dealing with the target or otherwise interfering with and disadvantaging the target’s relations with others. In many cases, the target must prove financial harm, such as loss of customers. In many states, the statute of limitations is one year.

Depending on the circumstances, there may be other ways to stop a disparaging statement. Consider the terms of use of the website where the statement is made and whether the website could take down the statement for violating the terms of use. Did the speaker violate a contractual relationship with the target? If the statement discloses a trade secret, it can be stopped even if it is a true fact. An intentional or willful act intended to cause damage may be enough for the statement to constitute interference with a business relationship. A false statement about the target or its product might be false advertising under the Lanham Act.

Any business should be careful not to become liable for the improper statement of its employees. Companies should maintain a social media policy and educate employees about what is and is not acceptable in social media postings. Business owners should be in control of all social media accounts that represent the business by having a trusted employee control the passwords of all accounts.

Although providing good service to customers and good relations with employees and vendors is always a good defense against bad reviews and online disparagement, negative comments are inevitable and often able to be diminished.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com