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Dirty Laundry

In an age where people live out their lives online, professional reputations are increasingly in the hands of the public. How can professionals adapt to meet the challenge of aggrieved clients posting in public forums? And do disobliging posts from disgruntled clients have any bearing on their insurance arrangements?

Summary

The majority of professionals (whether individuals or companies) have an online presence.  Many will actively engage with the online world, including by using social media to promote themselves to prospective clients.  Even those who choose not to actively engage can acquire an online presence when clients post reviews on sites such as Google Reviews and TrustPilot.  The purpose of social media and review sites is to make it easy for anyone to publish their views about anything.  Therefore the reputation and public profile of professionals is increasingly in the hands of (or at the mercy of) members of the general public.

In an age where people live their lives online, derogatory posts from aggrieved clients (or even their friends and relations) are perhaps even more likely than letters or emails of complaint.  The contents of a letter or email would normally only be known by the professional and its client.  By contrast, social media posts and online reviews can be viewed and commented on by anyone, and will also show up in search engine results.

So how can professionals adapt to meet the challenge of client grievances being aired so publicly?  Do professionals simply have to accept that their dirty laundry will be washed in public?  And do disobliging posts from disgruntled clients have any bearing on their insurance arrangements?

Monitor your online presence

Professionals should keep up to date on what comments or posts are made about them on social media sites such as Facebook, Twitter and Instagram.  They should use a good search engine to do regular searches for the name of their business and the names of key professionals within the business, to pick up entries on review sites and elsewhere.  If and when a negative post is identified, it should be captured in a screen shot in order to preserve evidence of exactly what was posted, by whom and when.

Should you respond in kind?

The client has made their grievance public by posting it online, but professionals do not have to respond the same way.  It is all too easy to publish an instant reply online, but a hasty response could have adverse consequences. 

Sometimes responding substantively to a post lends the complaint some legitimacy, which could damage the professional's reputation further in the eyes of other clients who may see the reply.  One only needs to observe the so-called 'Twitter feuds' that some high-profile individuals get embroiled in to see why replying to a disobliging comment runs the risk of spiralling out of control.

Another reason to tread carefully is to ensure that no inadvertent admissions of liability are made, which might prejudice the professional's position under their professional indemnity insurance policy, or other relevant insurances.

Professionals should also consider what confidentiality obligations they owe the client.  Even though the client has posted something online, it would be dangerous to assume that they have waived their rights to confidentiality entirely.  We know of an aesthetic practitioner who wanted to respond to a former patient's online rant about the outcome of her cosmetic procedure by posting the patient's clinical photographs to 'prove' that the rant was unmeritorious.  We had to remind her that to do so would be a breach of her duties of confidentiality, and would leave her vulnerable to disciplinary action by her regulator.

If the post might be a genuine complaint from an actual client, it should be treated with the same level of professionalism as a letter or email of complaint.  Ideally you should respond in private, via a letter, email or private messaging service.

Notifying insurers

If an aggrieved client publishes a derogatory post about a professional, it is important to consider whether it triggers the requirement to notify a ‘circumstance’ or ‘claim’ under the professional indemnity policy, or under any other relevant insurance the professional may hold. 

In many cases it would be prudent to make a precautionary notification, to avoid a dispute over late notification if the matter later escalates into a formal complaint or claim.  If a professional is unsure about whether to make a notification, they should seek advice from their broker.

Anyone who is given responsibility for monitoring a professional's online presence therefore needs training on the potential interaction with the professional's obligations to its insurers.  This will enable them to recognise when a post might need to be notified to insurers and take the appropriate steps.

Can the post be deleted?

Online comments or reviews range from relatively measured and honest (if negative) reviews, through to malicious posts that are entirely false and defamatory.  Sometimes it is easy to identify the poster as an actual client of the professional.  On other occasions, the poster will hide their identity using a false name.

Either way, professionals are often keen to know whether there is anything they can do to have the post removed.  The answer is not straightforward, and the professional may need advice and guidance from a lawyer.  In our experience, some posts can be removed by reporting it to the owner of the website it is posted on and seeking its removal.  The grounds for removal can range from a violation of the website's own code of conduct, through to the post being clearly defamatory.  Where the author cannot be identified, the Defamation Act 2013 and associated regulations also provide a technical process that can be used to obtain the author's details and/or to persuade the website operator to remove the post.  On other occasions, the removal of the post can only be procured by negotiating with the individual who posted it (with insurers' authority).

If the post was so serious that it has a measurable effect of the professional's business, it might be possible for the professional to commence an action for defamation or malicious falsehood.  Specialist legal advice would be sensible in that situation

Insurance renewals

Under Insurance Act 2015, professionals seeking to obtain insurance have a duty to make a "fair presentation" of the risk to their prospective insurers.  Section 3(6) of the Act states, "Whether an individual or not, an insured ought to know what should reasonably have been revealed by a reasonable search of information available to the insured (whether the search is conducted by making enquiries or by any other means)."

Section 3(6) may well mean that professionals should use a good search engine to check whether there are any negative posts about them online as part of the process of completing the proposal for insurers.  However, at present there is no case-law or other guidance to confirm this.  Professionals should seek guidance from their brokers if they are in any doubt, and at the very least should be ready to provide details of any negative posts they have already come across.

Settling claims

The power of social media and online review sites to affect a professional's reputation needs to be considered whenever a professional is settling a dispute with a client.  Regardless of whether the complaint originated online, without a carefully drafted confidentiality and no-publicity clause, the professional could be vulnerable to negative posts from that client even after a settlement agreement has been signed.  Such clauses will be particularly important where the professional relies on their public profile or word of mouth to attract new clients.  The client or their lawyers might put up some initial resistance, especially since clauses relating specifically to social media are relatively new.  But in our experience the clauses are usually agreed to and then complied with.

Contact

For more information please contact Joanne Staphnill, Partner +44 20 7280 8874, Joanne.staphnil@dwf.law. Amanda Stipetic, Director +44 113 204 1854 Amanda.stipetic@dwf.law. Sarah McKay, Associate +44 20 7280 8982 Sarah.Mckay@dwf.law.

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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