With the growth of digital media, a question which is often asked by clients is “how do we stand in regards to the principals of business libel”. The law surrounding defamatory statements is quite clear: where a person uses words which tend to injure a person’s reputation by degrading him in the opinion of others, the wronged party is entitled to sue the person who makes the statement for damages. Slander occurs when the statement is made orally and is not recorded, whereas, if the statement is recorded in some permanent form, it will be libellous. Over the years, what qualifies as libel has developed from the written word to include such things as radio broadcasts, and perhaps most importantly, the internet. The content of official company websites is not likely to cause any real issues as they tend to stay ‘on message’ and their content is closely controlled. However, it is far more difficult to control the content of each e-mail sent by an employee. Companies should ensure that all employees are aware that they should take as much care when writing e-mails as they would when either speaking to a person face to face or writing a formal letter. We have all seen the viral e-mails where somebody has sent an e-mail to the wrong person, but if this was to happen in a business context it could seriously damage a company’s reputation and lead to it being sued. When an employee sends an e-mail from work, they do so as their company’s agent – even if they are expressing a personal view. Another potential, and less obvious risk to a company, is an employee’s personal web diary or ‘blog’. .which also infiltrate the business community. More and more companies use blogs as a marketing tool as they are a highly efficient and cost effective way of getting their message across. It is important to remember that the law regarding libel is the same no matter which publication the comments are made in. People who write blogs often take a laid back approach to content and make comments that they would not dream of including in a formal letter. In fact, bloggers should be more careful regarding such comments as blogs can be read, potentially, by millions of people across countless jurisdictions and so the potential for trouble is far greater. As with company websites, official blogs should not cause many problems as their content is tightly controlled. Often, professional bloggers maintain these on behalf of a company who provide them with a message they must get across. The danger to businesses comes from the blogs of employees. Similarly to the position with e-mail, if a person were to identify themselves as an employee of a certain company and make a defamatory statement in their blog, the wronged party would be likely to argue that the employee had made the statement as the spokesman for the company and, in expressing their personal view, they are expressing the view of the company. The way to protect your business is, to insist that all employees who keep a blog, display a prominent disclaimer on their site, stating that any views expressed are their own and do not reflect the views of their employer. This may sound like common sense, but it is surprising how few bloggers display such a disclaimer while openly discussing the company they work for. Case law in this area is currently thin on the ground, but it is a fertile area for lawyers at present and is likely to become even more so over the next few years.
A common sense approach and a clear written record of that approach are a good place for companies to start when formulating their policy on libel and slander. Companies should check that their contracts of employment spell out clearly what they expect of employees in their day to day roles and include an indemnity if they deliberately step out of line.
Michael Vincent and Alan Vincent are based at Vincents Solicitors, which retains 4 offices across the NW region. For more information visit www.vslaw.co.uk