The might of the electronic pen

Dissatisfied employees have a wide platform on which to exact their revenge on past employers. Often, they will have developed accounts on social media forums, which, if not carefully managed, can give them a soapbox from which to cause serious harm to their employer’s reputation.

A well-drafted social media policy will often provide an employer with a clear line of recourse against its current employees; however, more often than not, employers have no contractual recourse against vengeful former employees.

Very few cases of this kind reach trial, and the Defamation Act 2013 remains in its infancy; its provisions have been relatively untested in the courts. Often, the easiest and quickest route is to persuade the owner of the media platform and/or the internet service provider (ISP) to remove defamatory remarks by sending a formal notice accompanied by a ‘cease and desist’ letter to the ex-employee.

It is worth noting, however, that where an ex-employee makes an abusive or threatening statement online, there are also potential criminal remedies.

Bringing a claim

Where statements are not ‘abusive’, but are nonetheless false, civil remedies may be available in defamation under the Act. To rely on the Act, corporate employers must fulfil the following criteria:

• The statement refers to them. A claim must be brought by the injured party. As such, the employer must be named, pictured or identifiable in the statements.
• The statement is defamatory. There is no single, definitive judicial interpretation of what constitutes a defamatory statement. Sim v Stretch [1936] defines the question to be asked as “whether the statement tends to lower the claimant in the estimation of right-thinking members of society generally”. Moreover, in light of the Human Rights Act 1998, the courts will not restrict a person’s freedom of expression without sufficient cause to do so.

Further points for an employer to consider before bringing a claim include:

• Does the publisher have a defence? One of the most relied-upon defences open to the defendant is that “the statement complained of is substantially true”.
• The statement has been published to a third party, and that publication was made within one year of the first publication. Time begins to run from the date on which the statement first appeared, which is known as the ‘single publication rule’. Typically, employers seek to take action in respect of online defamatory statements within hours or days of publication.
• Who is publishing the statement? Individual publishers who post comments (such as the ex-employee) now have more responsibility for their statements. Previously, many claimants sought to take action against website operators on the basis that they were deemed to publish the defamatory remarks posted on their site. However, sections 5 and 10 of the Act now afford greater protection to website operators if they were not the poster of the statement, and if they comply with the requirements of the Defamation (Operator of Websites) Regulations 2013.
• Whether the statement, if defamatory, has caused, or is likely to cause, serious financial harm. Where an employer is a corporate body trading for profit, it must be prepared to evidence that the financial harm suffered, or likely to be suffered, is of a ‘serious’ nature. It is possible that an apology published by a former employee will be sufficient to minimise the harm. However, the definition of ‘serious’ will be subject to dispute and to the courts’ interpretation.

Practical actions

If the ex-employee who has posted the statement is identifiable, the employer should send a ‘cease and desist’ letter before bringing a claim.

The publication of defamatory remarks, whether or not they are expressly covered by a website operator’s terms and conditions, may be restricted in any event, and contacting the operator and/or ISP remains the first port of call for employers.

Where an anonymous blogger publishes a defamatory statement, the Act and the 2013 regulations provide a right of action against the website operator. The employer must submit a notice of complaint (conforming to the regulations) to the operator. If the operator cannot identify the publisher, the post must be removed within 48 hours.

Otherwise, the operator must contact the publisher of the statements within 48 hours, requesting further information. If the publisher does not comply within five days, the operator must remove the statement within a further 48 hours.

Failure by the website operator to comply may open the door for the employer to pursue a claim in defamation against it.

Case law under the provisions of the Act is in its infancy, making it very difficult to predict the outcome of taking claims through the courts. However, employers should be vigilant in monitoring online dialogue, and should implement relevant policies and contractual provisions to give themselves the maximum protection available. Often, if handled efficiently, online statements can be removed without issuing a claim. SJ

Jayne Clemens, pictured, is a solicitor in the commercial and regulatory disputes team and Tom Stenner-Evans is an associate in the employment team at Michelmores