The first piece of advice is to read what’s been said and respond as soon as possible. People sometimes leave a bad review as a knee-jerk reaction to what’s happened without thinking too much about it. Anger takes over and because it’s now such an easy process, there’s no cautionary ‘think before you act’ process involved.
Confronting the reviewer head on usually deflates any anger and, with an offer to resolve or satisfy any problems, can turn a bad review into a good one. The worst thing is to ignore it completely. It won’t go away, and it may affect a potential customer/client’s decision whether to go with you or not.
Another type of ‘bad-mouthing’ may be from a competitor. Saying bad things about you or your company to make them look bigger or better. In my opinion, this is always a bad move; it only points towards their own inadequacy. The best thing to do in these circumstances, is nothing. Put your head down and concentrate on what you do best.
Lies, libel, slander
However, publishing lies in the press or media is something else altogether. And this includes Social Media online. The legal term is defamation. Whether in writing (libel) or made verbally (slander), such comments that damage or are likely to damage an individual could potentially give rise to court action. When the new Defamation Act came into force, in 2013, the threshold for bringing such an action has been raised. A potential claimant now has to prove that ‘serious harm’ has been caused to the claimant, and in the case of a profit-making business, ‘serious financial loss’.
It’s most important that, before going to court, the claimant should comply with the Civil Procedure Rules (the rules that are followed by the courts and parties in civil court proceedings). This means that s/he must follow ‘pre-action protocols for defamation’. The first step is to send a ‘letter of claim’ to the potential Defendant. This letter is very important. It must contain all the protocol requirements – name of the claimant, the words complained of, details identifying the publication/broadcast in which they were contained, publication date or copy of the transcript of those words. It should also include facts or matters that clearly identify the claimant from the words and how they were interpreted, as well as the particular damage caused by them. Finally, it should describe the nature of any remedies sought. A paralegal will usually charge considerably less than a solicitor, can help you.
A defendant should respond within 14 days depending on what the letter specifies. The response should cover whether any further information is required and if so, what specific information is required to deal with the claim, to what extent the defendant accepts the claim and what remedy will be offered. If the claim is rejected, the defendant needs to specify why and indicate what facts will be relied upon and finally should include what meaning the defendant attributes to the words complained of.
Find a resolution before going to court; it’s often worth accepting a lower financial offer than you feel you ‘deserve’.
There’s a huge emphasis on alternative dispute resolution, e.g. the parties are encouraged to find a solution to the dispute by any other means rather than going to court. Taking the final step to litigate (going to court) is very costly for both parties.
If you’re using the services of a paralegal, they can help you negotiate with the defendant’s legal representative. You can also ask for mediation. Ideally, you’ll find a resolution before going to court and it’s often worth accepting a lower financial offer than you may feel you ‘deserve’ to avoid incurring the costs of a court case.
Should there be no resolution, and the only alternative left is to litigate, then it’s in the hands of the court. There’s no one-size-fits-all with defamation cases and you cannot be sure the court will find in your favour. Think about the costs – even if you win the case you may not be awarded damages that cover the time, energy and stress you had to put into winning.
No one likes to let someone who has ‘bad mouthed’ them get away with it but if you can avoid the courts, it’s best to do so, or you may find yourself with a victory that you wish you’d never fought for.
Amanda Hamilton is Chief Executive of the National Association of Licenced Paralegals (NALP)