How to Respond to Negative Posts on Social Media

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Duane Tyler, Head of Litigation at Moore Brewer Wolfe Jones Tyler & North.

Comedian Dana Carvey’s character Grumpy Old Man once said, “when I was a boy, the only toy we had was a rock and a stick, and we liked it.”  As a young boy and teenager in the late 60’s and early 70’s, I had more than rocks and sticks to play with, but compared to today’s sophisticated electronic toys, including computers, video games and social media to pass the time, it seems like my toys were closer to rocks and sticks than today’s means of entertainment. 

Similarly, the world of financial institutions in the 60’s and 70’s was far more limited than today.  My first experience with money was opening a passbook savings account and vacation club account.  The passbook savings account included a little blue book that looked like a passport.  The passbook would be presented to the teller who would insert it into a data processing machine that would input a line item containing the date, amount of deposit or withdrawal, and the resulting balance.  The vacation club account included a coupon book for each week of the year bearing the predetermined amount you needed to save each week for your annual vacation.  The weekly coupon would be presented to the teller along with the cash and your vacation fund grew before your eyes.  Exciting stuff for a 16 to 20-year-old. 

Of course, these transactions had to occur in person with a teller at the local branch, which was open only from 9 a.m. to 3 p.m., Monday to Friday (hence the term “he works banker’s hours” to describe anyone who wasn’t working very hard in life’s pursuit of wealth and/or happiness).  If you did not make it to the branch before 3 p.m. on Friday, you did not have cash for the weekend.  There were no ATMs, no on-line banking for transfers between accounts and bill paying, and no Remote Deposit Capture services to deposit checks from home.  Needless to say, parking spots were a hot commodity as 3 p.m. approached on Friday afternoon.

Like today, customers occasionally complained about services they received.  Their remedy, however, was to complain to the branch manager one-on-one, or maybe write a letter to the editor in the local newspaper, which more than likely would not be printed.

Today, credit unions offer the convenience of 24-7 services from the comfort of home.  The advent of the internet and modern technology has improved both the toys we have to play with (as children and adults) and the ease with which we can conduct business on a daily basis.  But that advancement has its risks as well.  Modern technology includes social media platforms, such as Yelp, Twitter, and many others.  Modern consumers expect instant gratification and simple to use websites to conduct their credit union transactions.  When they get less than they demand or expect, they are not limited to complaining one-on-one to the local branch manager or writing a letter to the editor that will not be published.  Instead, they can go on Yelp, Twitter or other social media platforms, and using an anonymous username spew all kinds of falsehoods about their experience with their credit union, including specific credit union employees.  So, what can a credit union do to fight back?

First, generally social media platforms will not reveal the person behind a username without a court order.  To get a court order, the credit union would have to file a lawsuit against the social media platform and prove that the post was false and defamatory. Only then might the social media platform be required to reveal the user’s real name, assuming the person used his or her real name when the username was created.  (A great majority of the hatred and inaccurate information found on social media websites would disappear if users were required to post under their real names).

If the user’s identity can be learned, a defamation lawsuit could be filed if the post can be proved to be false and caused damage to the credit union’s reputation.  However, under section 230 of the federal Communication Decency Act, 47 U.S.C. § 230, the social media platform itself cannot be sued for defamation.  It is viewed as the platform or “provider” for the publisher or speaker of the defamatory statement, not the speaker itself.  Section230 states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  Of course, a defamation lawsuit is an expensive remedy to pursue.  So, what alternatives exist?

The credit union can post a reply disputing the allegations in the post.  This presents the credit union’s explanation and rebuttal to the allegations and would be helpful to members who read it, but it could also result in triggering the poster to continue his or her posting and escalate the falsehoods being alleged.

Another remedy is to try to get the post deleted.  This is not an easy task.  Yelp, Twitter and other social media platforms view themselves as today’s equivalent of the old town square where people go to exercise their First Amendment right of free speech and to express ideas and debate issues. They contend they are not the arbiters of the truth of posts on their platforms and will not delete a post simply because the target of the post claims it is false (remember the social media platform has no liability under section 230 so it is easy for them to take this position). 

In order to convince these social media platforms to delete a post you must demonstrate that the post violates one of its guidelines.  Most social media websites contain their Content Guidelines and procedures for submitting a request that a post be deleted.  For example, Yelp’s Guidelines can be found online at https://www.yelp.com/guidelines.  Twitter’s Guidelines are at https://help.twitter.com/en/rules-and-policies.  Depending on the social media platform involved, you can Google its name followed by “guidelines” to find the Guidelines for that entity (some are more difficult to find than others).

Yelp’s General Guidelines state a post should be “appropriate to the forum” and “address the core of the consumer experience”.  It should not include “rants about political ideologies, [or] a business’s employment practices….”  A post must not include “threats, harassment, lewdness, hate speech, or other displays of bigotry.”  Posts should be “unbiased and objective.”  A post should not “publicize people’s private information” including “close-up photos or videos … [or] other people’s full names”.    

Twitter’s Guidelines under the heading “Safety” include a guideline addressing “Violence” which states, “you may not threaten violence against an individual”.  It also includes an “Abuse/Harassment” guideline which states a post “may not engage in the targeted harassment of someone or incite people to do so.”  A “Hateful conduct” guideline states “you may not promote violence against, threaten, or harass other people on the basis of race, ethnicity, national origin”, etc.  Twitter’s “Privacy” guidelines prohibit, among other things, “publish[ing] or post[ing] other people’s private information”. 

Each of these Twitter guidelines contain links which discuss the guideline in more detail and provide examples of actions that violate the guideline.  Twitter states if it finds a post violates its guidelines it “may ask someone to remove the violating content and serve a period of time in read-only mode before they can Tweet again. Subsequent violations will lead to longer read-only periods and may eventually result in permanent suspension. If an account is engaging primarily in abusive behavior, we may permanently suspend the account upon initial review”.   

While we have assisted credit union clients in getting posts deleted from both Yelp and Twitter, the process is not easy.  As noted above, neither social media platform will delete a post simply based on an argument that the post is false and therefore defamatory.  A letter or email requesting the deletion of a post must identify a specific guideline violation.  If your credit union is faced with a negative post, start by reviewing the guidelines for the social media platform on which it appears and hopefully find a guideline the post violates.  You can contact us if you need assistance in reviewing the guidelines or preparing a letter or email asking that the post be deleted.   

Article by Duane Tyler, Head of Litigation at Moore Brewer Wolfe Jones Tyler & North. 

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