Trouble is Always Just a Click Away

Written by Jessica Relyea

Edited by Brian A. Cafritz

Last year, the KPM LAW Newsletter addressed whether a restaurant or retail establishment could be held vicariously liable for a defamation claim against an employee due to the employee’s social media post.   If the employee was acting within the scope of his or her employment at the time she made the post, the employer could be held liable.  Therefore, what should the employer know about the customer’s defamation claim?

In Virginia, actions for defamation are akin to actions for slander or libel.  The first step in the analysis is for the trial judge will make a determination, as a matter of law, whether the “statement makes substantial danger to reputation apparent.” Gazette, Inc. v. Harris, 229 Va. 1, 15 (Va. 1985).  If the answer is yes, the simple negligence standard applies.  If the answer is no, the tougher New York Time’s malice standard applies.  If the negligence standard applies, the plaintiff need only prove that (1) the statement was false, and (2) the defendant either knew it to be false, lacked reasonable grounds to believe it to be true, or acted negligently in failing to ascertain whether it was true or false. Id.   If the New York Time’s malice standard applies, the Plaintiff must prove either the statement was made with knowledge that it was false or that defendant acted with reckless disregard of whether it was false or not.  Id. citing New York Times Co. v. Sullivan, 376 U.S. 254, 268 (U.S. 1964).  If the New York Times standard applies, truth is affirmative defense, and the burden of proving the statement was true rests with the defendant.  However, statements of opinion are not considered defamation. Chaves v. Johnson, 230 Va. 112, 118 (1985).

Given this standard, if your employee tweets out a picture of a customer (who the employee happens to already know and dislike) commenting that “her dress is ugly,” the employer is likely safe, because that statement is clearly an opinion and would not constitute defamation.  If, on the other hand, the employee adds the statement that “the customer designed this ugly dress, but stole the design from another source,” those are provable facts.  As a result, the statement that the customer stole the design could be considered defamation.  If the customer is trying to become a clothing designer, this statement could very clearly damage her reputation.  The issue would be whether the negligent standard applies or the New York Time’s malice standard, but the customer would have a viable claim, which means the retail or restaurant establishment is now entrenched in a defamation lawsuit.

Perhaps more alarmingly, what if your employee tweets out that the customer stole the dress?  The biggest concern for an employer is the scenario where an employee accuses a customer of a crime: say stealing merchandise or assaulting another patron.  In that scenario, a defamation per se cause of action may be alleged.  A defamation per se includes (among other things) a false statement that someone committed a criminal offense for which the party, if the charge is true, may be indicted and punished.  Fleming v. Moore, 221 Va. 884 (1981).  If your employee uses social media to accuse of a customer of a crime, there is strong possibility that the statement would be per se defamation, and the employer could be held liable.

As one can easily see, the breadth and easy access to social media has created an entirely new group of claims or lawsuits that a company could face based on its employee’s actions.  In the ever changing landscape where everyone has a smartphone with access to Twitter, Facebook, Instagram and Snapchat, one of your employees could instigate a lawsuit during their shift, while they take a break, or even after they get home.  The fallout from that conduct will, without question, take up your company’s time and resources for years to follow.  Retail and restaurant establishments should be proactive with this issue and develop strong social media policies and employee training, and it should also be ready to defend itself should a claim arises.

Do you have further questions about how to handle your employees’ social media postings? Would you like help on how to structure company policies?  Feel free to give us a call at KPM Law and we would be happy to answer your questions.



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