You’re head down, hard at work, creating. You’ve been working hard lately- after all of those late nights and hard work, you’ve finally launched that program that you’ve been working on for so long. Now, you’re busy wrapping up all of those loose ends and are starting to dive into your next phase of your project when suddenly…your phone dings. You look down, and you have a message from a fellow business owner.
“Hey” it says… “have you seen Jane Doe’s post? She doesn’t use your name but…it’s pretty obvious she’s talking about you.” By the end of the day, your inbox is full with more of the same message. Sure enough, a fellow business owner’s feathers have been ruffled by your launch, and she’s publicly accusing you of copying her. The only thing? She hasn’t used your name…but everyone knows its you.
Is it in poor taste? No question. Is it actionable; ie, is it defamation? That’s the question we must answer today.
Unfortunately, this is a true story that has happened to so many of my clients and fellow business owners, I knew it was time to shed light on the issue. However, I’ve honestly been a little hesitant to write this article, because it touches on one of the most sensitive hot topics in the creative industry right now: copycats, and how you deal with them. The word “copycat” is something that gets used liberally; sometimes justified, sometimes not.
And now it’s time for a little tough love: if you believe you’ve been copied, the absolute last thing you should be doing is talking about it online. Not just because it’s in poor taste, but from a legal perspective, because its the quickest way to undermine your own case. It’s a lot harder to win an infringement suit than it is to win a defamation suit.
With the rise of online business inherently comes a rise of online defamation claims; some valid, some not. If you’ve publicly been accused of something untrue, take note of what constitutes defamation before you take action:
Defamation, slander, and libel
Black’s Law Dictionary defines defamation, libel, and slander as:
Defamation: “The taking from one’s reputation. The offense of injuring a person’s character, fame, or reputation by false and malicious statements. The term seems to be comprehensive of both libel and slander. Printing Co. v. Moulden, 15 Tex. Civ. App. 574,41 S. W. 381; Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St.Rep. 810; Hollenbeck v. Hall, 103 Iowa, 214, 72 N. W. 518, 39 L. R. A. 734, 04 Am. St.Rep. 175; Mouat v. Snyder, 105 Iowa, 500, 75 N. W. 350.”
Libel: Defamatory statement published through any manner or media.
Slander: “In torts. Oral defamation; the speaking of false and malicious words concerning another, whereby injury results to his reputation. See Pollard v. Lyon, 91 U. S. 227, 23 L. Ed. 308; Fredrickson v. Johnson, 60 Minn. 337, 62 N. W. 3SS; Ross v. Ward, 14 S. D. 240, 85 N. W. 182, 80 Am. St. Rep. 746; Gambrill v. Schooley, 93 Md. 48, 48 AU. 730, 52 L. R. A. 87, 80 Am. St Rep. 414; Republican Pub. Co. v. Mosman, 15 Colo. 399, 24 Pac. 1051; Civ. Code Ga. 1895,”
Here’s an easy way to remember it: slander=spoken, libel=written. Both are forms of defamation.
When many people speak about defamation, they are actually talking about disparagement. They key difference between the two is that defamatory statements are false that cause damages, while disparaging statements are true statements that cause damages. In other words, someone just “talking bad” about another person. The person who publishes the defamatory statement is liable- in other words, the Instagram user defaming another person would be liable, not Instagram.
The essential key to understand is damages. Generally speaking, even proving that the defamatory language caused potential clients to not work with you isn’t enough; you need to be able to show that you lost clients because of the defamation. Clearly, this is a difficult standard to meet.
What to do when you’ve been defamed online
Because the standard of damages is so difficult to meet, I don’t want to sugarcoat it: many of the times that a person has actually been defamed, there is not much that can realistically be done about it. It’s a frustrating reality of the law: sometimes what is actually just and the law itself don’t perfectly align.
Many times, it will take the discerning eye of an attorney to tell you if you actually have a case for damages. However, there are a series of steps that any attorney will tell you to take:
- When you first hear/ see the defamatory or disparaging material,start building a record. Take a screenshot with a time stamp, if you can.
- Keep track of any messages or communications you get regarding the statement. In my introductory story, that would include the messages from other business owners.
- Take note of any contradictory material you might have. For example, do you have proof that you published your “offending material” first?
- Record anything you can that would bolster your claims of damages. For example, did a client fire you, and say this was why?
If you feel like it could be beneficial, you may reach out to the person. I say this very hesitantly, because in the vast majority of cases, it won’t do any good. However, if you know this is a simple miscommunication for some reason, it might be good to nip it in the bud.
No matter what, under no circumstances should YOU begin discussing it publicly. Not only will nothing be gained by this, but you could land yourself in hot water from their own defamation claims.
Finally, if the defamatory statement has been left on a public forum or platform, such as a Weddingwire review or a Facebook review, etc, many of these platforms have their own dispute resolution processes that you can find in their terms and conditions. Before you panic about this bad review marring your good reputation, investigate those alternate methods (more on this to come in a later post).
If you’ve been accused of copying or have fallen victim to some other kind of defamatory claim, know that while it may feel like the end of the world for a little while, it won’t always. Many times, these situations will blow over. However, if they don’t or if you can prove your case according to the standards I set out above, it’s time to speak to an attorney.