Ask Greg - The Facts As You See Them, or Why You Should Be Careful About Accusing Someone of Wrongdoing on Social Media

"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” - John Adams

I was recently asked by a reader if a company could sue her for defamation if she went on social media to call them out for allegedly infringing her work. What if she just sticks to the facts?  I told her that it wasn’t a good idea because even if she sticks with the facts, they are still the facts as she sees them. With all due respect to our second president, the facts are rarely as clear and incontrovertible as they seem when you first look at them. In most cases, the facts can be heavily disputed. For example, she might have a credible argument that they saw her work and copied it directly. But that fact is no longer a fact if they can prove that they started their own thing before they ever saw hers. There are two sides to every story, and if the company is particularly litigious, then yes, they could see her social media outreach as a threat to its image; that could lead to a defamation lawsuit. 

I’ve always admired the usage of social media to rally support and sway public opinion, but mostly as an outsider. I've never advised any of my clients to do it and I think it would be a colossal mistake in all but the most deserving situations. 

Like this one...

Two years ago, Brandon Stanton, founder of the popular blog Humans of New York, discovered that a DKNY store in Thailand was using his work in its storefront window without permission and without paying for it. Stanton told his story on Facebook and Tumblr and it was shared and reprinted so often that DKNY eventually admitted the wrongdoing, and promised to donate $25,000 to charity, per Stanton’s request. It’s a classic David v. Goliath story, only this time, David won.*

I think Stanton did the right thing. He spent no money, no time, and he got exactly what he wanted by leveraging his huge social media following. But this strategy is not a viable option for every person in every situation. It worked for Stanton because:

  1. He’s a known entity with a huge social media base that essentially did all the work for him (most people don’t have his reach);
  2. He accepted the risk of being sued back by DKNY for defamation (and it was a risk); and 
  3. He carefully chose his language to minimize the impact of going public with his case. Here’s what he wrote:
"Today, a fan sent me a photo from a DKNY store in Bangkok. The window is full of my photos. These photos were used without my knowledge, and without compensation. I don’t want any money. But please REBLOG this post if you think that DKNY should donate $100,000 on my behalf to the YMCA in Bedford-Stuyvesant, Brooklyn. That donation would sure help a lot of deserving kids go to summer camp. I’ll let you guys know if it happens.”

He used non-threatening and non-accusatory language, he wanted no money, and, most importantly, he took his ego out of the equation. The more accusatory you get, the more you try to satisfy your ego against this grave injustice that’s been visited upon you, the more you open yourself to all kinds of liability, such as defamation. I don’t know if he intended to do it this way, but Stanton immediately defused the situation before it could escalate. All because he watched his language.

That’s a good lesson for life in general, but particularly useful for using social media to get the word out. If you do it right, social media can really be a great platform for creating momentum in your favor. But if you fail to weigh the risk and don't exercise restraint, you might just piss off a particularly litigious company that would like nothing more than to sue the little guy into permanent bankruptcy just to protect itself. They’re out there, believe me. So be careful what you say, and remember that the facts as you see them are stubborn things, and whatever your wishes, inclinations, or the dictates of your passion, they may not be as unassailable as you think. 

*Simpsons reference

Greg Kanaan

The [Legal] Artist, Boston, MA, USA