There are around 1.3 million internet postings each day. There are also now more than 70 million ‘blog’ sites. This increases by approximately 120,000 sites each a day.
With such a huge soapbox for the disgruntled, how should a company respond to an online attack?
Online comments are widely available, but this does not mean that they will be read. Thus, the first issues to consider are: where has a statement been published; who might read it, and what does it say – is it too ridiculous for anyone to take seriously?
Check where the comments appear on a search engine like Google. How many of us go beyond page two or three of the search results? If the statement does not appear in the first 100 results, less people will read it.
The next task is to identify the issue that has lead to the attack. Unless your response addresses this problem, the attacks are likely to continue.
In some cases, the statement may be so serious that legal action is required. In others, a lesser response may be sufficient. If you want to remove a statement from the web, the cheapest recourse is to go to the relevant ISPs. However they can be slow. Venturing into the lions den by responding in kind is risky. A company should only respond in the same forum if it can make a short factual statement that clearly rebuts what has been said. Otherwise, it will simply provoke further adverse comments.
It may be better to issue a statement on the company’s own website. This is where many people (including journalists) will start to look for a response.
A listed company is unlikely to need to make a statement to the market about a publicly available online attack. The information in the attack is not concealed and is not inside or price-sensitive information under the relevant legislation.
English law offers a range of remedies to the victim of such an attack. The key is often to act quickly to stop further damage being caused. Compensation can be sought later. The most likely remedies are: defamation; breaches of confidence and privacy; and copyright infringement.
The most common action is for defamation. A claimant must show damage to its reputation. Sometimes it is possible to obtain an injunction to remove the material, even against unidentified publishers. However, this will not be available in defamation if the defendant contends that he has a defence (for example, justification) as the court will protect free speech.
Brand damage caused online is a very real concern. However, it is vital to keep a sense of perspective. Strategy is vital and must address the true cause and the true impact of the publication. Sometimes, the attack can be repelled without involving the courts, but if required, they have the weaponry to assist. Before reacting, consider the likely impact of the statement that has been made both in terms of the significance of what is said, and where it has been published. If required, the law in England allows swift action to be taken against those responsible.
*Michael Hales is a partner at law firm Nabarro
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