What are your options when someone blackens your company’s name? Peter Jennings, IP and media specialist, explains.
In business, an assault on your reputation hurts more than just your feelings. It can be highly damaging. You lose a sale. You drop off a shortlist. Your credentials are called into question. Your launch falls flat. A candidate turns you down.
On the web or on a mobile, the impact of a slur about you can be huge, rapid and anonymous. How can you hope to set the record straight when a whispering campaign has already started on Twitter?
As a first precaution, you should stay alert to what is being said about you, particularly on the web. The longer you let a false accusation stand, the more credibility it will gain and the harder it will be to repair the damage.
As an enterprise, you can generally expect trouble from one of two quarters: your business rivals or disgruntled employees - more likely, former employees. Allegations will be either made against you personally or against your company and its products.
Forms of trade libelThe law gives you a number of grounds for setting the record straight. You could be the victim of a 'malicious falsehood', where you have to prove the words were untrue and that the publisher knew them to be untrue.
If the words about you were untrue and are likely to damage your reputation, you can rely on libel instead, but it can be harder to prove, as a balance has to be struck with freedom of speech. So expect to find yourself in a tussle about what particular terms are likely to mean to the man in the street.
You will probably struggle to make a case when attacks are made verbally as slanders, except in clear cases. Other defences apply when there is a duty to disclose information, such as employee references or disclosure to the authorities.
As an alternative to defamation, remember the restrictions on making 'groundless threats'. The law prevents your competitors using their intellectual property to unsettle retailers or distributors.
When a former employee is spreading ugly rumours, check whether they are breaking a contractual duty or breaching confidentiality. Or if the attack is a personal one, you might choose to rely on your rights of privacy, which are developing fast as an area of the law.
Before committing yourself to a legal fight, consider two other options. Firstly, might a PR campaign to set the record straight be better? Secondly, doing nothing may be the better option. By taking action, you might inflame an allegation out of all proportion to its original weight, attracting more adverse publicity that it would have ever received.
Web libelOnline, you are going to face extra complications. If the offending words were downloaded in the UK, but the publisher is overseas, you may have difficulty making a charge stick, particularly in the US, where libel laws are much less favourable to the person attacked.
Instead, you might be better off contacting the ISP (internet service provider) directly. Once they know about a libel, they become liable themselves. Pages will generally be taken down at this point.
Your other problem is that when comments are posted, most are anonymous. You can pursue the ISP for disclosure, but it is expensive. Even when you find out who is behind it all, defamatory comments could still pop up under another pseudonym or on another website.
RemediesIdeally, you would like an injunction on any trade libel, of course. But you are unlikely to gain one unless you go to trial. Because of the expense, only about a dozen defamation cases reach court in any one year. Most disputes are resolved by way of letter and negotiation.
When you write, explain the basis of your claim. Tell them to remove the libel and not repeat it. Ask for a retraction and an apology. Then set out your damages and your costs.
As well as the harm to your reputation, you can make a case for 'special damages' based on your commercial losses, although it is usually hard to link them directly to a libel.
The outcome will often depend on your bargaining power. Media organisations and insurers, for instance, will generally resist until the day you go to court. The landscape is also complicated by the growth of no-win, no-fee lawyers. If they think they have a chance, they will usually fight you all the way.
