Cybersmearing — The Cost of Freedom of Speech?

“Cybersmearing” may be a relatively new term in the social media community, but the U.S. Supreme Court saw the writing on the message board wall in 1997. In Reno v. ACLU, Justice Stevens observed that with the Internet “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.”

Today, cybersmearing, i.e., the use of websites and social media to criticize companies and their executives, is of increasing concern to corporations. Some of the nation’s leading companies have been targets of online criticism that ranges from customer service complaints to accusations of fraud. In many cases, the criticisms come from within by way of employees’ use of social media.  This type of Internet disparagement spreads instantaneously and, unchecked, can result in irreparable damage to a company’s reputation — and its financial health.

Compounding the problem is the fact that most cybersmears are anonymous. Corporations that wish to pursue aggressive legal action must first find out the source of the information. An increasing number of companies have filed suit against John Doe defendants and subpoenaed Internet service providers (ISPs) to identify anonymous posters. But civil liberties organizations, with the help of private attorneys, argue that cybersmearers have a First Amendment right to free speech.

Given the evolutionary nature of cyberlaw, the most effective way for corporations to address cybersmearing is through prevention. Develop policies that minimize the chances of cybersmearing instead of waiting to respond to a problem.

Cybersmear Prevention Strategies

Here are four steps to help minimize the chance that your employees will participate in Internet rumors, regardless of whether their intent is malice or simple curiosity.

  1. Establish a clear policy about the use of business email. A message from your company email address is, in essence, a message from your company. For publicly traded companies, information that is inaccurate or misleading could actually form the basis for a corporate liability suit under SEC Rule 10b-5.
  2. Implement a policy that prohibits employees from discussing the company’s business, internal matters, clients, or confidential business data, especially on social media or email. For more information on how to develop a clear, concise social media policy, see “You Can’t Say That on Facebook … or Can You?”
  3. Encourage employees to notify company management if they encounter negative information about their employer. Larger companies hire Internet monitoring services for this purpose.
  4. Engage counsel to help create a policy for dealing with Internet rumors or cybersmears. Be sure to inform employees of the person or department in your organization that will address such matters on behalf of the company so they can properly refer inquiries.

While convention tells us the best public response to negative rumors often is “no comment,” companies should consider all their options when addressing cybersmearing. A far more effective solution might be to turn a bad public relations situation into a good one by, for example, addressing a concern in a way that helps not only the outspoken individual, but demonstrates the company’s commitment to good citizenship and community. We will identify options for handling cybersmearing in the next Velvet Hammer Blog.

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