Twitter Shaming as a Tool For Dispute Resolution. Does Donald Trump Have a Point?

Twitter Shaming has existed as a strategy since the advent of social media. In the business setting, Twitter Shaming involves one party exposing the behavior or practices of another company over Twitter’s network for the purpose of changing the company’s behavior through public embarrassment and pressure. People are paying more attention to its use and effects since Donald Trump ran for and won the presidency. To be clear, I’m no fan of Donald Trump for many reasons including his divisive rhetoric, marginalization and demonization of many different demographic groups in our society, and his disrespectful language towards women. I would prefer celebrating the inauguration of Hillary Clinton in a few days time.

I’ve recently had a few clients involved in situations where they wished to have another party cease and desist from using their brand or intellectual property online. Ultimately my clients were successful in doing so, without consulting me, through the tool of Twitter Shaming. Besides the blow to my ego that my clients would actually solve their legal problems without me, my initial reaction was surprise at how quickly these matters were resolved. Someone like myself usually writes off these kinds of tactics as too aggressive. I am also instinctively weary of any strategy that documents contentious exchanges in public. Since the counseling function of being a lawyer requires that I assess the effectiveness of different strategies both legal and non legal, I decided to take some time to look at the tactic of Twitter Shaming to determine whether there’s a place for it and if so under what circumstances.

Usually when one business wants another to refrain from activity concerning their brand or intellectual property they ask their lawyer to write a letter to another party asking them to stop the infringing behavior. A client of mine has a trademark that protects their hospitality brand and they were concerned about another business using their mark to enhance the perceived value of that business’ products. The other business was in an unrelated industry, which affected the analysis of my client’s ability to compel them to stop the use of their mark.

Without getting into the weeds on the distinctions between a trademark and a copyright in this case (which can be the topic of another post), I could have addressed my client’s issue through a cease and desist letter. However, the issues would have involved research, time spent writing a letter, and time spent explaining the content of the letter to my client (all things I don’t mind to be paid for doing). At the end of all this, a case in court (which is what would be threatened) would not be a sure thing and would involve considerable expense. Even an effective letter would be an expense to my client. So what’s the alternative?

The least invasive course of action would be a private letter to the infringing party asking them to stop their behavior or practices, which would hopefully prompt compliance from the other business. Unfortunately, some actors will continue their infringing behavior if they do not face a threat of any kind. Actors that would use another business’ trademark without permission from the owner of said mark generally have a high propensity of falling into this category.

Twitter Shaming is available as a dispute resolution option when the private letter or email doesn’t work and the more traditional cease and desist letter creates expense and is not backed by a threat that you can carry out with certainty. It can be particularly potent when the target is in an industry where public perception is a critical component of their brand value.

That said, there are clear areas where Twitter Shaming is inappropriate and legally risky. I believe it’s unethical and wrong to use Twitter Shaming to bully individuals publicly on private matters. This kind of conduct can have dangerous consequences and can subject individuals that engage in such behavior to tort lawsuits if the object of your Twitter Shaming is physically or mentally injured and such injury is the reasonable consequence of your social media activity.

In addition, Twitter Shaming is legally risky when your social media activity accuses an individual or business publicly for activities they are not engaged in and thus are false claims. In these instances, you can and will be sued for defamation for this use of Twitter Shaming. On a related note, it is also not advisable to take sides on a dispute between two parties online or spread what could be false information from un-reputable sources. We all have to be more careful of the information we share in this age of fake news. You can and will be sued for retweeting (publicly spreading) false information that is disparaging to another party.

While there may exist some limited space for the use of Twitter Shaming to resolve some disputes, it is a risky strategy and one that I’d almost never advise my clients to take as a first resort. The goal of anyone feeling compelled to use such a strategy should not be to hurt individuals. This strategy should not be used if there is any chance that claims made publicly are false. Anyone thinking of using such a strategy should take pause and consult a lawyer to investigate whether less aggressive alternatives are available.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. I will not be responsible for reader’s detrimental reliance upon the information appearing in this feature.