Reading unkind words about you or your business on social media is never pleasant. When those words come from a rival company, it is not uncommon to feel even more unsettled. Consumers are entitled to their opinions about various businesses and their comments are generally not grounds for legal action. However, a rival business making disparaging remarks on social media platforms about your business may warrant a call to your attorney. To determine if you need to speak to a lawyer, learn more about this important issue.
According to the Texas Deceptive Trade Practices Act, it is unlawful for various businesses to mislead and deceive consumers. It is also unlawful to breach warranties or do anything else that could be classified as an “unconscionable action.” While this law is arguably designed for consumers, it applies to business owners as well. They enjoy the same protection as the customers they serve, which can mean rival companies that bash them are potentially liable.
As per the DTPA, the “false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” The DTPA also notes that the act “provides for both public enforcement and private remedies,” referring to businesses and private citizens, respectively. Any public enforcement cases require the Texas Attorney General’s assistance, while private remedy matters require obtaining a court order.
Proving liability in a social media “bashing” claim
For a successful claim, the business owner, or plaintiff, must prove that the other business owner, or defendant, knowingly caused harm. They must prove that the defendant “intentionally” or “knowingly” violated DTPA laws and is therefore subject to legal action.
A rival company writing rude, insulting, or otherwise defamatory statements about a business on social media does not prove liability alone. The plaintiff must show that the rival company’s words caused them harm in various ways, such as losing business. For example, say the rival company wrote something disparaging on their Facebook page, such as “Do not support [x restaurant]. Their menu is terrible and made from packaged food, not scratch. The servers at [x restaurant] are lazy and bad at their jobs. Avoid wasting your time and money.”
The plaintiff must show that business dropped off following the social media post, such as furnishing sale information prior to the post and after the post. If there is a significant discrepancy, the defendant will likely be found liable.
Showing that reputation damage has occurred is another way to prove the rival company’s liability. In addition to severe financial losses or bankruptcy, reputation damage can be proved via:
- Employees quitting at a fast and high rate
- Difficulty encouraging potential employees to apply
- Higher hiring costs
- Liquidity risks, such as stock price issues
Being able to prove financial losses and reputational damage creates the strongest defamation case.
Common damages in a defamation case in San Antonio
If a business owner can show they are a victim of defamation per quod from another business owner and can therefore prove how the latter owner caused harm, they can ask for a variety of damages. Common damages in defamation cases include:
Also known as economic damages, special damage requests cover the financial losses the business has incurred because of defamation. Such damages must be thoroughly documented, such as expenses from reputational damage control attempts, lost revenue, and reduced business. Proof of expenses such as receipts and invoices, bank statements, and tax returns are subsequently necessary. Having an objective financial analyst review the business’s losses and expenses in relation to the defamation and testify about their findings strengthens the case further.
General, or non-economic, damages are more difficult to prove in many civil cases. These damages relate to the emotional, mental, and psychological fallout from the defendant’s actions. To show that emotional distress, pain and suffering, and mental anguish have occurred, the plaintiff typically needs witness statements. For example, employees and managers can testify that the owner was increasingly upset, stressed, and despondent following the defamatory social media posts and the problems they caused.
Withdrawal from social activities, sleeping issues, and appetite problems can also be used to support general damages. For example, say the defamed business owner’s spouse started tracking their eating, sleeping, and socialization habits. If there are clear declines in relation to the social media post dates, the plaintiff can prove defamation happened. More objective testimonies also help, such as the business owner next door noticing negative changes in the plaintiff’s mood, health, and behavior in light of the defamatory posts.
These damages are meant to punish the defendant for gross negligence or wrongdoing. If the plaintiff can show that the defendant’s reckless, mean-spirited, and false social media posts were created out of malice, they might be awarded punitive damages. For example, perhaps the plaintiff and defendant have a rocky history where the defendant felt slighted in some way and was therefore “out for revenge.” Witness statements are usually necessary, such as third parties reporting the defendant’s revenge-themed discussions about the plaintiff.
If you are a business owner who feels there are grounds for a defamation case against a rival business, contact an attorney as soon as possible. The lawyer will determine if defamation occurred and whether there is enough evidence to move forward with the claim. Depending on the circumstances surrounding your case, you might be able to win significant damages that help restore your business’s reputation.
Contact the law firm of Grable Grimshaw PLLC today to request a free case evaluation. These San Antonio-based attorneys provide dedicated counsel and fight hard for their clients through every step of every case. Call our office, or fill out our contact form to get started.