SOCIAL MEDIA: WHAT CONTROL DO YOU HAVE?

SOCIAL MEDIA: WHAT CONTROL DO YOU HAVE?

Can you restrict the use that your employees make of social media even during their personal hours? What recourse will your company or organization have if it is defamed by one of your workers? In an era where information —and misinformation—circulate at the speed of light, establishing a clear policy on the use of social media in the workplace is essential.

Companies are quickly evaluated by reviews, and public opinion rarely expresses itself in moderation. If your company can manage comments expressed on its website, it’s challenging to control what is said on social media. A work stoppage, an unpopular decision, a misunderstanding, and suddenly the “victim” ignites a fire that is difficult to extinguish.

Allowed or not allowed

“We are dealing with two rights that clash: the right to freedom of expression and the right to reputation. The balance between the two is precarious,” states Me Isabelle Tessier, a lawyer at La Boite Juridique.

What does defamation consist of? It is communication that diminishes someone’s esteem or consideration or arouses unfavorable or unpleasant feelings toward them. It occurs when one disseminates or allows the dissemination of information that one knows or should know is false. The court even recognizes cases where true information is communicated but is not of public interest and is disseminated inappropriately.

“In the context of employment, it is unlikely that a court would allow you to impose a general and formal prohibition on your employees to prevent them from talking about your company online. However, there is certainly a framework that can be put in place to define what goes beyond reasonable use of social media and would harm the commercial interests of your company,” she says.

Factors to consider before taking legal action

Do you believe that statements circulated on social media are harming your company? The following information is relevant to consider in the decision-making process of taking legal action against the author of such statements.

“First, you must be able to prove the identity of the author of the defamatory statements,” emphasizes Me Tessier. “However, the person sometimes hides behind a pseudonym or expresses themselves in a closed group, making formal identification more difficult.”

Next, if the platform or individual behind the statements is based abroad, the court must first determine if it is competent to hear your claim. If there is a significant connection with another province or country, your claim may need to be filed or transferred to a judicial authority in that district.

Regarding the constraints applicable to such legal action, note that it cannot be brought before the Small Claims Division and you only have a one-year deadline to file it, compared to three years in most other civil cases.

Is it worth it?

To determine the amount of damages, the court will want to know the number of people exposed to the defamatory message. Is it a small group of friends or millions of internet users? The reputation of the company or person defamed will also be taken into account in the calculation.

Moral damages awarded by Quebec courts rarely exceed a few thousand dollars. “Cases where a real drop in traffic is observed are certainly the most interesting to pursue for the average business, as the loss of profit can be significant,” she says. As for obtaining an injunction to remove statements from these platforms, the procedure remains difficult to completely erase information from the web due to the multiple shares that a publication can receive. Nevertheless, for the future of the company, it can certainly be worthwhile.

Also, think about the image that such legal action will project to your clients or the public. Do you want the statements to make headlines during a public hearing? Will you be able to rehabilitate your image? In the case of legal action, consider requesting a closed-door session and a prohibition on dissemination to limit potential drawbacks.

WARNING: The information contained in this article, while of a legal nature, does not constitute legal advice. It is recommended to consult with a professional for advice that will address your specific situation.