Social networking and that fatal slip – the formulae (see foot of page).
Admit it! How many e-mails have you sent out accidentally via one of the social media sites and realised some time later, following some reflection, that perhaps it shouldn’t have been sent. I’m sure that many entries on Facebook, Twitter, Linkedin etc can display examples, the recent one being Kevin Pietersen’s “slip” by ranting on Twitter and the American juror who published her “verdict” on Facebook http://www.abajournal.com/weekly/article/oops._juror_calls_defendant_guilty_on_facebook_though_verdict_isnt_in .
The word “social” of course does not restrict networking to after hours actions. Many of those entries made in error, or in haste, are made during working hours, on employers’ equipment, and, in some cases are not entirely complimentary to the employer. Of course, no one will take offence at a complimentary comment being made about them, even if the “post” was an error, BUT those who make adverse comments on line, however well founded, MUST treat it as a private matter. By making them on line in a social networking site, those adverse comments become public, and thereby place the author in line for a possible defamation claim.
Businesses, professionals and individuals in this day and age are more alert to, and protective about, their reputations. It takes years to build up a business, a professional position or standing in the community, but one criticism or unwelcome comment published, that is, posted on a worldwide available website, can harm those reputations for a long time.
In a compensation orientated world, such comments can be costly. Your comment may have been a slip, or at worst was intended but ought to have been sent privately, but the damage to reputation has been done. High costs in defamation cases, and one could argue, in a majority of cases in other areas, only occurs if you have a stubborn claimant and stubborn defendant battling against each other, and, if the author feels that his comment was correct, will often take preliminary points which do not assist the process but do increase costs. However, such forceful action by defendants—particularly early on, when costs are low and there is still a possibility to settle the case before views become entrenched and costs take over—is something that claimant lawyers come across frequently. It is then when serious consideration should be given to an alternative to litigation, and to the formulae below.
Alternative dispute resolution (ADR) procedures work well in most forms of litigation, and our experience is that more than 80% of cases settle at mediation, and there is no reason why defamation proceedings should not reflect that success. Claimants with a good case are often reluctant to go to mediation because they feel that defendants can use it as a means of avoiding the damages that they feel they are entitled to.
The mediators within North West Mediation Solutions feel that that concern can be overcome by the parties speaking to the appointed mediator in advance of the mediation to provide guidance on the mediation approach and requirements, which can be considered by the parties at that preliminary stage. The parties are then able to consider, in the cool of their own camps, the comments of the mediator and apply the formulae:
Action: Derogatory comment + Social e-mail =
publicity.
Effect: Offence taken + litigation takes place = high
cost.
Alternative: Pre mediation chat with mediator +
commerciality = settlement + lower costs.
Benefit: Early settlement +less publicity + reduced
costs = satisfaction.
