I have needed to make 3 referrals to defamation lawyers this week alone, from clients who have made or had allegations made about them publicly on social media. So, it is timely to give a little reminder that if you have concerns that someone has engaged in trade mark infringement, copyright infringement, or other wrongdoing, you don’t post about it on their social media pages or your own. Until the infringement is proven in court, it is just an allegation and it may turn out that (despite how much you believe the allegation to be true) the judge finds the allegation unfounded. If that occurs, the allegation you have made on social media, is a public, false allegation and the person you have made the allegation about (the one who you thought was in the wrong) may then in fact have a claim against you. So, avoid becoming the wrong doer yourself, and refrain from making public allegations online.
What should you do instead? Should you send a DM? That’s private, right? Well, you might try and resolve it amicably before speaking with a lawyer. There is some merit in that approach. But, any contact needs to be made carefully. Even if the communication is private, it can still expose you to risk. The other side may allege that you have made an unjustified threat of trade mark infringement, for example. Or, if you make an open offer to simply drop the issue if they take the infringing content down, you may make it harder for yourself to convince a court (if necessary, later) that the infringing content caused you significant damages. So, it is worth seeking legal advice as to the tone and contents of any template initial communications you might send, and then to refer the matter to your lawyer in the event that the initial communications are not heeded, so your lawyer can take it from there.
As I explain to my clients, it’s about leverage. It’s always better to be the one with clean hands, as then you have all the leverage.
