Libel On The Gram: How to Stop The Fake News

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In the hair industry, the internet and social platforms are key marketing tools for our products and services. The extended audience reach you can get from an Instagram post or a Facebook ad is unsurpassed, especially for the price.

But putting ourselves out there sometimes comes at a cost. Sometimes people are unconscionable assholes who want to dump big bags of shit emojis on your livelihood.

When we share our offerings with the public, whether it be opinions, art, or our business, we open ourselves up to criticism, and even attacks. The internet can be a cruel universe and keyboard tough guys are in high supply, especially since they can hide behind screen names and dummy accounts.

Most times people will post and it will hurt our feelings or piss us off. But when the attacks rise to the level where it affects our reputation and our business, that’s defamation and that is a problem.

 

Defamation of Character

“A lie can travel halfway around the world while the truth is putting on its shoes.” ~Mark Twain

You may have heard the terms Libel and Slander before. Both of those acts fall under the umbrella of defamation of character. Defamation is when someone makes a false statement about you and it causes you some sort of harm. Generally, slander is defamation spoken to another person, while libel is written defamation, (including art or photos).

There are certain elements to a defamation case. You cannot sue simply because someone is a hurtful, at least not for defamation. In order to be considered defamation, a statement must be 1) false; 2) published (meaning someone else besides the alleging party must have heard or read the statement); 3) and results in harm (usually to your reputation).

Defamation on the internet will likely fall into the Libel category. Libel is generally a written statement but can include spoken defamation when it is released to a large audience, for instance via Youtube video. In order to prove libel, you must only show that 1) the defendant published a defamatory statement about the plaintiff in written or another form (i.e. the elements of defamation) 2) and that other people were exposed to the statement. Proving libel on social media is pretty simple. The platform usually shows the amount of views or likes and even tracks the reach of a post, so showing people saw it is easy.

Harm to reputation:

If someone falsely accuses you of lying about your products being made in America, or saying that when they got a haircut you cut their ear off, it can be devastating to your business and your standing in the industry. If a reasonable person would believe that the accusations were based in fact, it’s defamation. Someone saying that they think your haircuts suck is clearly an opinion and not defamation. Even if that person has a large audience, if they are not saying things in a way that are seemingly based in fact, they can have an opinion, no matter how shitty it is.

The elements enumerated above to prove defamation are pretty clear cut. However, proving harm can be difficult because you are proving damage to a reputation, which is intangible. If someone hits your car you can go to a body shop and assess the damage and get paid based on that assessment. We don’t usually have the same ability in a defamation case. It’s hard to know how the statements truly harmed you. If I am being honest, I have read statements online that made me question whether I wanted to work with someone, even without knowing whether they were true or not. Just the accusation is sometimes enough to avoid the product or service.

Sometimes if there is a clear drop in profits, we can use the economic loss to show damages. Other times the statement is so egregious that damage is clear. For cases that are harder to show damage, we must gather up all the defamatory evidence and show how it could be damaging to our reputation and good standing. A common test is whether or not a statement would make someones colleagues and peers think less of them. If so, then it is probably defamatory.

How do we fight back?

There are two ways we will want to consider handling abuse. One is to report the content to the social media platform or internet service provider. Every platform should have some sort of mechanism to do this. Most hosting sites, search engines, and social media sites have guidelines that prohibit online abuse. Read the guidelines and then contact the hosting site, search engine, or social network through their established procedure.

For example, to report a post on instagram you would  click the elliptical (...) below the post. Then click Report inappropriate and follow the on-screen instructions. If a site does not have a form procedure, draft a letter that outlines the abuse and list the urls and links detailing the defamatory content.

Instagram Takedown pages:

Trademark Takedown:https://help.instagram.com/222826637847963?helpref=page_content

Copyright Takedown:https://help.instagram.com/contact/372592039493026?helpref=faq_content

If the site does not take down the content after flagging it for abuse, you can try to take down the content based on copyright or trademark infringement. If the person uses your copyright or trademark along with the false commentary, you can file a takedown request with Instagram based on infringement. For websites you can find out their DMCA or trademark takedown policy and utilize it the same way. It’s a trick I use sometimes to help people takedown abusive posts. It’s like arresting a mobster on tax evasion. They are not going to jail for the major crimes they committed, but they are going to jail. You may not succeed on the libel count, but the content is gone either way.

Understand, you can’t necessarily takedown a bad review just because they pictured your mark or copyright, but if the information is false and disparaging, it goes beyond parody or protected critiques and is therefore infringement.

Taking Legal Action

If the abuse is egregious then we need to decide is whether or not we want to escalate the fight to the level of a lawsuit. If you just want the content gone and the above protocols fail, you can have your attorney start with a “cease & desist” letter. The letter will document all of the content that is defamatory and demand that it be taken down and or retracted. Keep in mind that if the party receives your C & D and ignores you, your next course of action is to sue (or walk away). If the statements are hurtful to you economically, then filing lawsuit based on defamation of character is probably the best course of action.

Whether preparing to file a lawsuit or a C & D, first and foremost, don’t react. Let your lawyer handle it. If you have a serious claim against a poster, you don’t want to hurt that claim by getting into a war of words in your DM’s. Just focus on collecting all the material that they publish about you. That will help to build your case. You will want to collect evidence that shows how many followers they have, how many have seen the posts and any other relevant info to prove that you have been harmed. Comments that show that people believe or have considered the accusations are strong evidence. If there were shares or reposts, collect the same information on those as well.

Once you have the abuse documented, you can file a suit in your local jurisdiction. Whatever you decide, the key is to act fast. The longer the information lives online, the more damage it can do to your rep. Moving ASAP will help to contain the damage.

 

Can A Salon Owner Prevent Me From Posting Photos?

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I read a post on Behind the Chair’s Instagram page from a young stylist whose salon would not allow them to post instagram pictures. The owner was also requiring them to remove pictures that were previously allowed; and it got me thinking. I have been writing a copyright guide and this was a perfect case study to work with.

 

Toxic work environment aside, there are 3 main questions here to figure out whether or not a Salon owner can prohibit a stylist from taking and sharing photos? Like all legal questions, different facts will change the determination. And like most lawyer’s answers, my answer is– it depends.

 

The first question is: Who Owns The Photos?

 

The general rule is, the author of a work owns the copyright. Under copyright law, the creator of the original expression in a work is its author. Under this rule, the one who took the photographs would be the owner. Copyright gives the owner of a work the exclusive legal right to reproduce, or permit others to reproduce your work. Owning a copyright means you completely control the reproduction and distribution of that work. This also means you own the exclusive rights to public performance or display of your work. You control who can and cannot copy or adapt your work.

And you control who can post the photo on Instagram.

 

So that’s it? That was easy.

 

Unfortunately it is not that simple. Identifying the author is not always as cut and dried as it may sound. If you create a work personally, for yourself, you are the author. Job done. But if you create the work for someone else or create it as an employee of a company, you may not be the author and therefore have no claim to the work. These are called works made for hire.

Works made for hire can cause some confusion as far as who rightfully owns the work. The work made for hire doctrine states that if you are hired to create something, you do not own any copyright in what you create on that project. Instead, the people cutting the check own the rights. Cash is king right? Further, the work for hire doctrine also states that a work prepared by an employee within the scope of his or her employment is owned by the employer.

So you will need to figure out if the worker is an employee or independent contractor in order to know who owns the photos.   


I am not going to go into depth on employment law but we can touch on some basics. There is no one specific thing that categorizes on as an employee or IC. Even an employment agreement or independent contractor agreement is not dispositive.

Generally, if the boss maintains a fair amount of control over the worker and their work, she is likely an employee. Some signs that a worker is an employee are: The Owner may require the worker to wear a uniform; the Owner may require the worker to work a particular schedule or minimum amount of days/hours; the worker may not handle their own sales receipts; The worker may not make their own appointments; the owner may provide training; the owner may provide supplies such as shaving cream, shampoo, blades, towels, capes and smocks.

In a true independent contractor relationship, the owner merely contracts out a task to be completed. The owner does not have the authority to instruct the contractor on how they should perform the  job. In most cases, an independent contractor is someone hired to do a particular job for a finite amount of time. This is not so clear in the hair industry. For now, the worker is probably an independent contractor if the worker has a key to shop; the worker makes their own schedule; the worker buys their own products; the worker has their own business phone number. The less control the owner has the more likely the worker is an IC.

If the Stylist is an independent contractor, then the photos are owned by the Stylist unless they fall under one of 9 categories and the parties have a signed written agreement stating that the work was created for the company. No agreement, no work for hire.

 

 

If we decide that the Stylist falls into the employee category, we need to decide whether we believe that the photos were created within the scope of such employment. Once again, there is no bright line rule so it's a judgment call.  One could argue that photography is outside the scope of hairstyling. Cutting, washing, coloring and drying are all clearly within the scope of a stylist’s employment. Taking photos, not as much. That said, there are arguments that could be made in favor as well, such as photos of work are a big part of the industry and are part of promotion and marketing, therefore part of an employee’s job.

These inquiries all come down to judgment. Until there is a lawsuit or tax audit, we cant know how a court will rule.

 

The second question is: Whether the owner can prevent photos in the shop?

 

When it comes to photography in public space, if you can see it with your natural eye, you can usually photograph it without restriction. This includes people. Unless there is a reasonable expectation of privacy in the place you are shooting, you should be safe.

If private property is open to the public (restaurant, barbershop, salon, etc), you can generally take photos unless there is a sign stating that you can’t. Imagine if you couldn’t ‘gram your food any more. How would we eat?  As long as it is not in an area where there is an expectation of privacy, i.e the bathroom, you are probably good to shoot. However, if an employee of the property tells you to stop, you have to stop.

So the salon owner can prevent photos on private property?

Technically as the operator of private property they can prevent photos. But this would probably need to be enforced across the board. No one could take pictures, meaning clients would be barred from photography as well. If the owner is not barring all photography, then workers can likely take photos as well.

But there is another wrinkle here. According to the National Labor Relations Board, there are narrow circumstances where you can prevent workers from taking photos. In most instances where companies have had rules with broad prohibitions against taking photos or recordings at work, the policy has been found invalid, under Section 7 and Section 8(a)(1) of the National Labor Relations Act (NLRA). In The Boeing Company case, 19-CA-90932 (May 15, 2014), Boeing had a policy that prohibited photography by employees. However, the NLRB found a violation of employee rights. Boeing said the policy was to prevent the leaking of proprietary information. However, there were VIP tours that allowed photographing in areas that prohibited employee photos, so the policy was seemingly too broad and in violation of workers rights. The Judge concluded that Boeing’s no camera-enabled devices rule “reasonably discourages its employees from taking photos of protected concerted activities.”

The case law  shows us that, while policies may contain language that prohibits employees from taking photos in the workplace, the policy must clearly indicate a valid purpose such as to protect trade secrets or the privacy of the third party whose photograph is taken.

 

The third question is: Can we get in trouble for posting clients?

 

The BTC post indicated that the Owner was also concerned with legal backlash from posting clients and originally asked the workers to have clients sign photo releases. There is some validity to this concern. We all have a right to our name, image, or other defining attributes and a right to control how they are captured, distributed and used. And we have a right to be left alone.

Remember that taking the photos in the salon setting is probably ok. As long as the photos are not in a private setting, no expectation of privacy exists. But how you share the photos matters. Commercial use changes the inquiry. The difficulty lies in what constitutes commercial use. Even if you are not selling the photos, if they appear on a site that acts as advertising for your work, that might reach the level of commercial.

The best way to protect yourself is by getting consent. For Insta posts you probably don’t need to get a release form signed. You can just ask the client if you can post online. If they sit there and pose for the pic, chances are you won’t have any issues. If they ask you to take it down later, just do it. You can also post a clearly visible sign that says you take photos of your work and clients can let you know if that is not okay or add a note to your booking/checkout form. If you plan to do more with the photos such as an ad campaign or public poster, or your work tends to get reposted, you may want to get a signed release.

So...

 

Overall, photos in the salon are not a big deal, nor are they a major legal risk if you take a few steps to cover yourself. However, it may actually be a violation of labor standards if your salon owner prevents you from taking any photos. That said, if you have to threaten an owner with the Labor Act, it might be time for a new workspace.

As far as ownership, it depends on your classification as a worker or any agreements you have in place. Generally the creator owns the copyrights. And if you own the copyrights, you can post your work, as well as modify and distribute your work as you please.

 

Sell All The Way Out (Not to be confused with being a sell-out)

I ran a Tough Mudder yesterday. I don’t say that to get an unsolicited brag in. (It was only the Half). I say it because while going through the course, I couldn’t shut my mind off to the business lessons that were all around. From the course set-up, to the pre-sale of future events, to the $10 bag drop, there was strategy everywhere. But the lesson that smacked me right in the forehead was when we got to the queue for the Everest 2.0 obstacle. Everest is a 13-15 foot quarter pipe. It is slippery, you are full of mud, and you are miles into the race. The top is also curved so you cannot grab it. You need to push yourself through the fatigue and you need the help of others.

The idea is that you run up this wall as far as you can and hope to grab the hands of other racers at the top. The bottom has grip material so that you can get your footing and propel yourself up the wall. There was more backlog for this obstacle than any other. People were tired, and took a few moments to psyche themselves up before sprinting forward. So you get to take a breather and see several people attempt to scale this wall. Some succeed, and some come sliding back down with bloody knees and bruised egos.

Now, in sports, “to sell out” means to abandon everything else and go full force toward one goal. My football coach used that term often to describe that he wanted a blitzing linebacker or cornerback to leave their coverage and go at the quarterback with reckless abandon. When you sell out completely, you are not cautious, you do not look back, and you do not try to cover your ass or hedge your bets. You just go.

And I say all of this to say, the only way to really be successful is to sell all the way out. You cannot run at the wall half speed. You cannot slow up or hedge your bets or be safe. Being safe at Everest is an automatic fail. No. You must run as hard as you can and keep running in order to launch yourself towards the top of the wall. You must stretch as far as you can, and then you have to have faith that someone will reach out and pull you up.

And it’s the same in business. You need to expect success with no plan B. You need to run full force at the one thing you want to accomplish, and you need to launch yourself at it. You must sell out completely and have faith that there will be hands outstretched ready to embrace you. If you’ve done the work and provide a product or service that people want, they will be there. And like the wall, if you don’t get it on the first, or the second, or the 5th attempt, you can try again. We helped one woman make it over Everest after 8 times. But if you don’t sell out every single time, you have zero chance and it will just be a waste.

I have my shop in Sola Salon Suites and I have seen a ton of turnover. While there are definitely staples that have been around and others that have moved on to storefronts, there have been a lot of grand opening/grand closings. And the number one reason seems to be the unwillingness to sell out. You may need to work another job or earn money in some way, but if you continue to hedge, you are cheating your dream. And if you are not all in, how can you expect people to reach out to embrace you. They can sense when you are not fully there. If you only work when you have an appointment or do the bare minimum on your decorating and media, or take clients at home or at a discount, you are signaling that you might not make it. And that you don’t fully believe you will.

So when facing an obstacle in your business, assess, strategize, and then attack it with reckless abandon. Sell all the way out and I promise, clients will buy all the way in.