A treacherous legal hypo about online defamation

Nick Augustine is a freelance writer, broadcaster, publicity and marketing strategist, and he teaches SEO and social media. Nick writes legal industry columns for Chicago Lawyer magazine regarding business and career development. Nick is an alumnus of Marquette University and The John Marshall Law School, where he is an active alumni board member. Connect via @NickAugustinePR, @APIFCharity and Nick Augustine PR.

You should be concerned with the dark side of social media communication. Not only are Facebook, Twitter and LinkedIn potentially troublesome, blogs and emails are ripe for nefarious use. Are we a culture who pushes the envelope? What happens when we go too far? Does Himmel apply? During a planning phone call for an upcoming MCLE on point, I learned about a blog slamming local judges and attorneys. The accusations I saw were astounding and incendiary. What does a member of the bar do when they are targeted online?

Smear campaigns are not a new phenomenon but the ease in of distribution is compelling. Armed with enough SEO skills to be dangerous, a “watchdog” blogger can cause real trouble when they share negative content in their social media channels. If the title is catchy and enough people “like” and “share” the post, readers might assume the author is credible and the statements in the blog are true. Social communities like Facebook are ripe for gossip and public criticism.

Awareness of the issues and potential fallout can damage victims professionally and financially. Imagine the following hypo: Carol a rogue client, upset with the outcome of litigation, publishes and promotes a negative article about Alan, an attorney, and the article is full of factual misstatements and condemnations. Bob the businessperson knows and likes Alan and refers Roger for a legal consultation. The next day Roger searches for Alan and on the first page of the search results, he sees Carol’s angry article. Roger decides not to call Alan and instead calls Bob to let him know Alan might have some problems. Bob calls Alan about the comments online and despite Alan’s efforts at refuting the Carol’s bogus complaints; Bob seems to shy away from Alan.

What would you do as the lawyer when Alan calls you to seek your advice about a defamation claim against Carol? Did Alan and Carol execute an attorney/client contract? Did that agreement address social media communications? What If Alan and Carol entered an agreement with a clause indemnifying Alan from Carol in the event she caused Alan’s damages?

Add some more facts to the hypo involving Alan, Bob, Carol, and Roger: Alan starts posting comments on Facebook and Twitter that Carol’s article is defamatory and full of lies. Linda, a newly admitted lawyer has a friend who works at the same firm as Alan, the friend, who dislikes Alan, shares a copy of Carol’s article, and Linda discovers the article containing allegations of professional misconduct. Fearing she is obligated to report under Himmel, Linda sends the article to the ARDC. Discuss!

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