Care Providers – Dealing with Defamation

As with most other businesses, care providers now generally use websites and social media platforms to market their services and connect to the communities around them. Given the sensitive nature of the care sector, reputation is crucial and unfortunately it is all too common for negative statements to be published about a business. Whilst some comments might be true and valid feedback, comments that are not and are left unchecked could quickly cause reputational damage, a loss of custom and ultimately, lost revenue.

What is Defamation?

Defamation occurs when someone makes a false statement (either orally or in writing) that lowers you or your business in the eyes of others, resulting in reputational damage. This article focuses on published statements, but broadly speaking there are three types of claim:

1. Libel – a statement is published e.g. on social media or in writing;
2. Slander –a statement is verbally made from one person to another;
3. Malicious falsehood – similar to defamation, but where a statement and has been publicised with malicious intent to adversely affect an individual or businesses reputation, so as to cause it financial damage.

How might it affect Care Providers?

The Care Sector is by its nature an area that is subject to increasing levels of scrutiny by its regulator, but also by the people that use its services. An ageing population means that care homes now look after a significant number of the most vulnerable people in our society, and families have high understandably have expectations of care providers. Unfortunately, there will inevitably be instances where harsh statements are made by residents, families or third parties who are able to easily express their opinions of a service to the world. In particular, comments made online about care providers can be more malicious where they are emotionally charged ‘in the moment’ comments.

Whilst truth and honest opinion are defences to a claim in defamation, when managing published comments online for example, a provider should consider factors such as whether the author has exaggerated the position and what an ordinary person reading those comments might reasonably consider them to mean. If the comments are so damaging and untrue that they might, say, prevent prospective customers from deciding to use your business, it might be time to seek legal advice.

What can Care Providers do to protect their business?

Care providers should actively monitor publications about them to stand a chance of identifying any potentially defamatory comments. As a preliminary and practical step for comments published online, providers can report and request a review of a potentially defamatory comment, with a view to having it removed urgently and minimising harm to the business.

It is important to seek legal advice as swiftly as possible after a potentially defamatory comment has been made, as the limitation period for bringing claim of this type is shorter than most other claims at 1 year from the date of publication. A provider would need to show that the business has suffered or is likely to suffer ‘serious financial loss’ as a result of the defamation, in order to pursue a claim.

What constitutes serious financial loss depends on the circumstances of each case. For example, the loss of one significant customer to a small business might be more damaging than the loss of one customer to a larger business with a wider customer base. The likelihood of financial loss suffered or likely to be suffered is an issue that requires careful consideration.

An initial step beyond contacting the relevant online platforms might be to send a stern letter to the person that has made the defamatory comment demanding its removal. This is often effective and can minimise the harm caused. Damages can be sought where appropriate, together with an apology and/or and assurance that the person will not defame your business again.

In the background, it is important that providers gather and retain any evidence available to them to support a potential claim. This might include correspondence with the person making the comment, screenshots of what has been said if online, and comments made by prospective customers who have decided not to use your business because of the defamatory statement made.

How can Ellis Jones help?

Our specialist team is experienced in the healthcare world and appreciates the pressures that care providers face in the current economic and political climate. We understand that there is a need maintain good relationships and keep costs to a minimum. For that reason, we will seek to resolve your matter as swiftly and cost effectively as possible, with court proceedings being a last resort. To speak to a member of the team to discuss your business and legal healthcare needs, get in touch on 01202 525333 or visit the contact page for more information.