Kimberly Buffington is a partner at Pillsbury Winthrop Shaw Pittman LLP in Los Angeles.
Social media enables associations to engage efficiently with their audience, but these platforms also make it easy to become the target of unfounded complaints or even smear campaigns that can badly damage an organization’s hard-earned reputation. If it happens to you, how you respond matters.
Managing reputation is tough when every person with a social media account is a potential critic with global reach. Organizations must contend with the concern that one negative social media post could destroy hard-earned goodwill built up through years of thoughtful industry leadership and community interactions.
The potential for critical posts to go viral and to remain online permanently, coupled with the ability of social media users to mask their identities, makes it difficult for organizations to mitigate the consequences of an online reputational attack. The good news is that targets of such an attack are not without recourse. Generally, there are four options for responding to a negative social media post:
In each case, an organization must decide if, when, and how to respond after considering several factors.
As difficult as it may be to show restraint, sometimes the best course of action is to not respond at all. Responses to a post are public or can easily be made public, and any attempt to remove or disprove a post could have the unintended consequence of drawing further attention to it. For example, if the post is an outlier—one negative post in a sea of positive ones—it may not be worthwhile to highlight it.
Consider whether responding to a post would require disclosure of confidential or protected information. For example, a doctor might not be able to effectively respond to a negative post without revealing information covered by physician-patient confidentiality rules. Likewise, an organization might have difficulty responding to an inaccurate post about its CEO’s salary without divulging information subject to confidentiality agreements or privacy and employment laws. If responding to an attack online would require you to breach confidentiality or other legal obligations, do not respond.
However, if the post violates intellectual property rights, is fraudulent, or contains material falsehoods, then you may need to respond. The specific actions you take will depend in part on what legal claims you may be able to make against the author of the post. Common ones include copyright infringement, defamation, and breach of a nondisclosure agreement. Notably, defamation claims require a false statement—mere opinion or truthful statements are not actionable.
If it is not possible or desirable to ignore the negative post, the next option is to contact the author to either address the complaint or to request that the post be taken down. Reaching out to the author to address the problem may help to remedy the situation and demonstrate your commitment to quality customer service and responsiveness. If the author of a negative post is rational and does not have a hidden agenda, this can often be the most effective way to address the criticism.
Reaching out to the author of a negative post to address the problem may help to remedy the situation and demonstrate your commitment to quality customer service and responsiveness.
In some instances, the author may be unknown or it may be undesirable to contact the author. Or after you contact the author, he or she may refuse to do anything. In such cases, another option is to contact the social media platform directly.
Often these platforms are willing to remove a post if you assert a copyright claim (for example, the post includes a photo that you or someone else owns), fraud (for example, the post was created by a bot or is spam), harassment, or other violation of the platform’s terms of service. They are generally less likely to remove a post if it requires them to determine the truth of a statement or to take a position on a legal claim. Some social media platforms will not remove a post or identify an anonymous user without a court order.
Your staff or legal counsel should review the terms of service of any social platform you intend to use so that you understand how it handles removal requests and under what circumstances a post may be removed.
If all else fails, it may be necessary to consider a lawsuit. Litigation is typically the last resort due to its high cost and resource demands, and a lawsuit places a heavy burden on a plaintiff to prove there was a legal wrong. But at times, litigation is the only means of seeking redress.
In one example, a falling out between a law firm and its client resulted in the client posting a negative review on Yelp. In response, the law firm sued its former client for defamation and won at the trial court level. Yelp appealed all the way to the Supreme Court of California, which held that Yelp is immune under the Communications Decency Act and cannot be forced to remove the offending reviews. Rather, it said, the court only has the power to force the former client to remove the posts (which it did).
Was the time and expense of the litigation worthwhile? That’s uncertain. Yelp has noted that the law firm continued to be highly rated on the site, even though the review remained up for more than four years.
These four options are not mutually exclusive and can be taken in combination as necessary. The most important thing when facing a negative post on social media is to assess both its potential impact and the effect of any response you might make. When you look at the bigger picture, it is possible to effectively and efficiently manage your organization’s social media reputation.