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:
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.