"Please Desist": Drafting 'cease-and'desist" letters in the online environment and avoiding negative perceptions

By Clive Elliot QC

The influence of social media, whether through Facebook, Twitter, LinkedIn or the like continues to grow. Social media interactions tend to be more casual and informal. However, this informality does not lessen the legal impact, particularly if these interactions are harmful or damage reputations. This is particularly so if the tweet, post or other message is widely disseminated or even worse goes viral. Once this happens, online messages are no different to those made in the traditional "hard copy" world.

If consulted in this type of situation, our first reaction is often to reach for the dictaphone and resort to the tried and true opening move, a stern and uncompromising "cease and desist" letter. However, it is becoming apparent that this is perhaps one area where unwelcome attention and reputational harm can be done to clients’ interests if care is not exercised. The phenomenon of setting out to achieve one outcome and achieving another (decidedly less desirable) one, has become known as the "Streisand effect”.

The unlikely candidate for illustrating this point is not the much-loved Barbra Streisand herself but the equally celebrated Whopper burger with an Australian burger joint being threatened with dire consequences over use of the term "Wambie Whopper” (see “Hungry Jack’s flame grilled on social” by Brendan Coyne & Rosie Baker, AdNews, 6 November 2013) a term it said it had been using in good faith for over 20 years.

An angry Wambie Whopper fan set up a Facebook page: “Save the Wambie Whopper”. The page received over 29,000 ‘likes (eventually changing its name from “Save Wambie Whopper to the somewhat more self-satisfied “We Saved Wambie Whopper”) and was followed by a petition on change.org which received over 5,000 signatures. Hungry Jack’s received a large number of adverse comments and criticisms for being a big bully and over reaching. They quickly reassessed the situation and withdrew the complaint, apologising for their actions and posted the letter on their own social media site.

Leaving the legal niceties to one side, the exercise could be characterised as a miscalculation which did more to harm Hungry Jack's reputation than might have been anticipated.

Once a negative comment or situation occurs certain steps should be taken to deal with it. It is important to properly understand the issues. Investigate the situation. Form a view as to where the merits lie. If any comments or representations are inaccurate or unjustified provide the facts, and ask for an immediate correction. If the comments or representations are accurate and justified, offer to discuss the matter. Be prepared for your client to go online to correct any misconceptions. Make sure that at all times your client is honest and transparent and listen (“Basics of Online Reputation Management” by Lee Odden, Top Rank blog).

While every situation has to be addressed on its merits, I suggest:

  • Decide whether the legal route is the best option in the first place;
  • Understand your target and appreciate that a lawyer’s letter may reach a wider audience than anticipated;
  • Assume the worst – it may go viral and before sending the letter step back and review it in light of this;
  • Only then draft a letter but focus very closely on getting the tone right - don't be unnecessarily aggressive, overbearing and legalistic;
  • Remember, it is always easier to ramp things up – but much harder to pull them back;
  • If the target engages in an effective and potentially damaging social media retaliation campaign the best advice may be to tell your client to cut their losses and move on; and
  • Finally, unless you feel confident that you have got things right, run things by a recently admitted or junior member of your firm or chambers - you may gain some valuable insights into what to advise your client to do.

When drafting "cease and desist" letters, remember that your carefully crafted letter may end up on a social media page. Make sure it is appropriately worded, so that if it is posted online, it gets the appropriate message across. Indeed, I would suggest that in some cases there may be two different audiences to address - the other side and the wider online public. If there is a risk that the other side will play this card, try (as best as you can) to draft your response with this in mind.

 

Clive Elliot QC is a registered patent attorney, barrister and arbitrator. His areas of practice include information technology law, intellectual property, competition law and defamation and media law. Clive is a member of Shortland Chambers and he also blogs on IP-related matters