One of the original purposes of the common law was to provide a forum for the peaceful adjudication of disputes that may have previously led to violence. The famed case of Tuberville v Savage (1669) 1 Mod. Rep. 3; 86 ER 684, which set the standard for the tort of assault, shows how close violence was to the surface in social confrontations in the 17th century. Folks used to wear swords as a matter of course, and a random insult could spark feuds and attempted murder.
Today, we like to think that society has grown more sophisticated, but has it? Yes, we no longer wear swords but we still face the daily dilemma of what to do about insults and brickbats hurled our way, and it has recently gotten worse, thanks to the popularity of social media platforms.
For quite some time (at least since the collapse of dueling culture) the worst that one might expect from an insult was a barroom fight â€" after all, how many opportunities really existed for slander and libel for 99% of the population? Unless you owned a printing press or a newspaper, you couldn't really let loose your inner Dorothy Parker and get medieval on the posteriors of your enemies. Today, however, an off the cuff slam like Parker's "that woman speaks 18 languages and can't say 'no' in any of them" can instantly be published on Twitter and distributed to the known universe in the blink of an eye.
So, you've been insulted. Someone created a Facebook page mocking you or your company. Someone created a Twitter feed making fun of your response to, say, an oil spill. What do you do?
This is an issue that comes up with remarkable regularity in the practice of any lawyer who deals with social media and the Internet, and the correct answer (irritatingly) is "it depends." There are some situations which demand an immediate cease and desist letter and a motion for a temporary restraining order if the letter is ignored. If you are actually being damaged monetarily, or being accused of a crime (so-called "libel per se") an immediate response may be necessary. If your intellectual property is being harmed, that may justify action as well. But many other online insults are better met with silence â€" after all suing someone or publicly confronting libel can often merely draw more attention to the accusations, or make you look like a bully. In other words, your reaction must not be reflexive, but must instead consider the consequences. The tales of libel suits that merely lead to big legal bills and no satisfaction are legion, so it is important to think about the cost-benefit analysis of confronting your accuser, and whether (a) your own PR initiative might be more effective and less expensive, and (b) whether there are other, less dramatic ways to deal with either mockery or libel.
So while there is no question that the schoolyard insults of our childhood have been given new life by social media, you should not allow yourself to regress to that level in your response. Think about your response, consult counsel, and calibrate your response to be proportionate to the harm. You (and your wallet) will be glad you did.
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