Texas defamation suit picture of an online nightmare: Dykeman

By Staff

A social media campaign by former clients that destroyed a Texas photographer's business is a "cautionary tale" of how quickly reputations and businesses can be destroyed by negative online commentary, says Toronto health lawyer Mary Jane Dykeman.

The photographer was awarded damages of $1.08 million by a jury for defamation, civil conspiracy and malicious intent, but not before she was forced to shutter her wedding photography company, says Dykeman, partner with DDO Health Law.

Widely reported in the media, including the Washington Post, TIME, and People, the case began in January 2015 when the bride, a social media blogger, and her husband alleged their wedding photographer was holding the couple's wedding photos “hostage” until a $125 payment was made for a wedding photo album cover.

The claim was made despite a signed contract that outlined the costs. The couple engaged with mainstream media about the dispute and then turned to social media, where the story went viral.

Dykeman says she's been following this case for some time, as she is a close friend of the photographer, and is a business partner of the photographer's husband.

“I raised this case at a recent Canadian Bar Association conference in May, as one to watch for anyone interested in social media law’s emerging issues," she says. "I am by no means a defamation lawyer and would be very interested in our Canadian counterparts’ views on this case.

She says her firm works with health-care organizations to establish corporate social media policies.

"We want to make sure there is guidance to their staff on to how to use social media responsibly," Dykeman says. "Social media policies must address when and whether an employee is speaking on behalf of an organization or if they are speaking from their personal point of view, as well as what is acceptable.

"That said, I will go back and revisit these policies in light of this ruling because this case could have happened anywhere, and the lessons learned don't stop at the Texas border," she says.

The couple that the photographer successfully sued stated they were stunned at the court decision against them and that they were only doing what any consumer advocate would do. There's no indication yet the couple intends to appeal.

Dykeman says there is a distinction between consumer advocacy and malicious intent to harm. The couple's campaign was well beyond the online posting about a bad meal or retail experience. The court made clear it was a concerted move built on untruths that had significant impact, she says.

“The charge to the jury included questions about the defendants knowingly publishing a false statement that was defamatory, that they disparaged the business," she says.

"The charge also included questions of whether the harm to the photographer and her business resulted from malice, the matter of exemplary damages including the extent to which such conduct offends a public sense of justice and propriety, and whether the defendants were part of a conspiracy to damage the photographer or her business," Dykeman says.

She says not everyone who is harmed on social media is able to invest the time, money and energy to clear their name. But she says she's heartened by the photographer's fight to the benefit of all business owners.

The law is sometimes slow in responding to the speed of technology but the Texas ruling should focus some attention on the many legal issues involved in social media and how it's used, Dykeman says.

She notes business owners groom their reputations and to have someone use social media to maliciously tear down a person and their business is unconscionable.

The significant takeaway is in the words of the photographer's attorney, David Wishnew, that "freedom of expression does not mean freedom from consequence."

"This could happen to anyone," Dykeman says. "It was a thriving business, which evaporated overnight."

The case is a lesson everyone needs to be aware of, she says.

"This case really gave me pause, for myself, and as both an employer and a parent of teenagers using social media," Dykeman says. "Choose your words carefully, just because you say it doesn't mean it's true.

"And if it is untrue, the consequences can be significant," she says.

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