Criticism, Defamation, Bullying or Stalking: What's the Difference?

Popzazzle | Wednesday, 17 February 2021 |

"One of the unfortunate side effects in the rise of the personal brand, is that people have come to conflate criticism with bullying, stalking or defamation, and think they have a right to sweep away every comment they don't personally like."


No Sand No Pearl
Photo by Brett Jordan on Unsplash (image modified).

By Bob Leggitt
© Popzazzle
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“Do better”. It's simple advice, and it's guaranteed to improve the way the world sees you. Once upon a time, the accepted solution to criticism was to tackle the problem. But doing better is the last option some brands will consider in their quest to minimise bad publicity today. The logical ethos of “tackle the problem”, has, for some, steadily evolved into an ethos of “embrace the problem; tackle the messenger”. Does it work? Yes and no...

PUBLICITY MANAGEMENT GONE MAD


As social media and review sites have gained greater importance, brands have set up “publicity management” regimes to intercept negative online commentary and attempt to close it down. Some brands have taken this practice to obsessive extremes.

Although publicity management most often comes with a friendly facade that purports to care, it can wildly overreach its welcome. If you're a brand, people are entitled to say they don't like you, in public, without you bursting into their inbox or social media mentions to “manage” the situation. Some brands now have a completely upside-down interpretation of when they should and shouldn't be responding.

If I contact you or your service department, I'm talking to you. If I write a post online saying your service is grim, I'm talking about you. The time to address the problem is when I'm talking to you. Not when I'm talking about you. But it's amazing the number of brands who now do that the other way around. Persistently ignore it when they're spoken to, and come diving in without invitation when they're spoken about.

Even publicity management with a friendly facade can border on harassment. But some publicity management is very far from friendly...

SLAPP CULTURE


Do you know what a SLAPP is? It's a Strategic Lawsuit Against Public Participation, and it's an extreme example of what can happen when people begin to think that their brands should be beyond criticism.

The classic SLAPP is threatened or served by a brand (often a personal brand), against a critic. Not necessarily a formal critic. Just someone who publicly criticises the brand. Could be your next door neighbour, leaving a negative review about a counsellor on a review site. 48 hours after your neighbour hits Post, a shirty email from the counsellor implores them to take the review down. They refuse, and the next thing they know, the counsellor's legal rep has crawled into their inbox with a cease and desist, and a threat of defamation lawsuit.

A SLAPP's main goal is not to win actual legal redress - typically, the likelihood of it winning is not even considered. Its goal is to intimidate the critic into retraction and silence. The idea is to get the critic to withdraw their negative commentary in exchange for the brand dropping its threat of action.

A SLAPP normally alleges defamation, causing loss of income, and therefore supposedly entitling the brand to damages. Any claims of actual libel are normally petty or pedantic beyond reasonable interpretation. Perhaps even in the territory of “You described my client as a neckbeard, but he does not have a beard on his neck”. Against professional or semi-pro writers, a SLAPP may also try to portray poor fact-checking as libel, even when the writer has not taken ownership of an accusation, and has attributed it to a third party who demonstrably did make the claim.

Most SLAPPs are never filed, and only get as far as a threat. If the brand has a legal rep to present the threat in a convincing and authoritative manner, and the critic has no legal adviser to assess the threat, the result will often be an instant retraction of the criticism. That's exactly how the brand is hoping it will go. In the inbox underground, some brands think nothing of issuing cease and desist letters, claiming defamation in response to any negative commentary that becomes significantly visible.

When brands do go as far as filing SLAPPs, they may publicise them heavily in order to scare other third parties into silence over the longer term. This effect, in which legitimate criticism progressively becomes too fraught with potential hassle for commentators to entertain, has been described as “chilling”. But it can go seriously wrong. Especially if a brand is stupid enough to sue an actual customer, as opposed to some over-eager news blogger...

Law firm Summerfield Browne sued a customer for leaving a negative critique on the review site Trustpilot. They were considered by the court to have a legitimate claim and were awarded £25K from the customer in damages. So, nice job, right?...

Well, yeah… Until the story hit the media and a backlash of 1 star reviews completely trashed their Trustpilot page, rendering it unusable, and giving Trustpilot themselves the hump into the bargain. Summerfield Browne were driven off social media, and the negative publicity they got from press coverage and its associated social commentary has immeasurably outweighed the impact of a single bad review on Trustpilot. Type “Summerfield Browne review” into a search engine. It's a publicity disaster in a different league from simply having one bad crit slowly disappearing into the ether of one chronologically-ordered site.

And even when a brand sues a non-customer, it can cause major publicity headaches. One of the drawbacks with scaring the living crap out of everyone who might consider talking about you, is that they don't just stop saying negative things - they stop saying anything about you at all. Because no one really knows what's safe to say and what isn't.

There are types of brand that can do well out of public silence. Cult-like brands that depend on minority delusion. The quacks. The demagogues. The sub-societal communities. Because they don't have anything to offer beyond bullshit, public silence actually helps them. No one outside of the deluded minority was ever going to say anything good about them anyway. So a litigious reputation which stifles public speech, gives them carte blanche to bombard the delusionals with all necessary propaganda, free from contradiction.

This type of brand is usually the most dangerous when it comes to threatening SLAPPs, because simply, they're not deterred by the prospect of losing wider public respect. They have no wider public respect in the first place.

CRITICISM VS DEFAMATION


So what is the difference between defamation and criticism? Can we protect ourselves against the threat of a SLAPP?

The difference between defamation and criticism is truth. As long as what you say is true, and you can prove it's true, you're not guilty of defamation or libel. However, since SLAPPs are about intimidation rather than the law, being truthful isn't necessarily going to prevent the threat of a SLAPP.

If you don't have on-demand legal representation, the best advice is to avoid talking personally about brands you know to be litigious. That doesn't necessarily mean they've won. If you have a public interest expose on them, you can still submit it anonymously to a professional journalist who has legal backup.

“BULLYING” AND “STALKING”


But what happens when a personal brand isn't big enough to keep a law firm on a retainer, yet still has that same, extreme, control-freak mentality which seeks to limit all public discussion to glowing praise only?

Two buzzwords that have hit the low-end publicity management scene in recent years are “bullying”, and “stalking”. They're words that big companies can't realistically use and be taken seriously. In a dispute between your next door neighbour and, say, Amazon, no one is going to accept that your neighbour is the bully. The power dynamics between a rich organisation and a individual person with average status, simply can't be twisted to portray the individual as persecutor of the corporate giant. And you couldn't stalk Amazon. It's communication-walled to the hilt, like every other big corp.

But personal brands are different. They're individual people - not big, corporate gangs. And that means they can quite easily portray themselves as victims of bullying or stalking. Painting legit criticism as “bullying” or “stalking” can be very effective in curtailing that criticism. It can shame the critic into silence, whilst discouraging wider future criticism from other people through the implied threat of demonisation. So it often does work in the immediate term.

But as we saw with aggressive litigation, any attempt to gag free speech can also seriously backfire in the longer term. And the issue of throwing the baby out with the bathwater still applies. People who portray critics as bullies or stalkers tend to stifle positive commentary as well as negative.

This may have mechanical elements as well as human. For example, discussion threads on forums get buried out of easy reach when too few people add to them. If there's a discussion thread for your personal brand, and it drops out of easy reach, the chance of anyone even being able to conveniently make a positive comment goes down.

The long-term damage from gagging speech is hard to measure, but it does appear to be exceptionally hard bordering on impossible for a brand to recover public discussion once they've driven it off the table.

Obviously, we don't want to undermine the very real issues of bullying and stalking. So how do we differentiate between bullying, stalking and legitimate criticism?

BULLYING


Bullying is an abuse of power. So in order to be a bully you have to have a power advantage. Whether that power advantage be greater status, greater support, greater visibility, or even greater physical strength in the offline world, it's something that can be exploited to force a victim to suffer unreasonable attacks without adequate defence.

A lot of the bullying accusations issued by personal brands run in the wrong direction in terms of power dynamics. We're seeing the person who has the greater power, support and visibility accusing a much less powerful (and often completely lone) voice of bullying them. Although the criticism may be unreasonable, it's not bullying when the accuser is the one controlling the visibility of the interaction and has hugely greater native support.

Bullying is based around unreasonable attack. What's reasonable and what isn't is often subjective, and will differ depending on opinion. So there has to be a universal way to define a line on what types of commentary are unreasonable.

One option that normally works is to assess the constructiveness or destructiveness of the criticism. Constructive criticism suggests a viable change. Destructive criticism shames something that can't be changed purely through decision, and/or wouldn't make any difference to the subject's effectiveness in role if it could. The former is reasonable. The latter is unreasonable.

Criticising someone's race, gender, background, sexuality or facial features is destructive and unreasonable, because people can't just wake up one morning and change these things purely through decision. You can't just decide to have different facial features and magically acquire them. And even if you argue that facial features can be changed through physical cosmetic work, changing them wouldn't have any impact on the subject's effectiveness as, say, a chef or an illustrator. Simply, when there's no point in criticising something, all it serves to do is upset the subject. That's not the whole gamut of bullying, and is not bullying in itself, but it's a foundation for bullying when combined with a power advantage and the final main component of persistence.

Conversely, criticising someone's individual behaviour or standard of service is provisionally constructive and reasonable. These things can be changed purely on decision, and they usually do have an impact on the subject's effectiveness in role.

Traditionally, bullying is a sustained and persistent campaign - not a one-off assessment. However, social media and Internet virality have blurred the line on this somewhat. A social influencer may only attack a low-profile individual once, but if they know that this one attack will spark a long series of further attacks from their fans, they're arguably bullying by proxy. The higher someone's online profile, the more careful they need to be about mounting attacks on people with significantly less power than themselves.

If you fuse the three main traits of: power advantage, unreasonable criticism, and persistence, you have classic bullying. So the way to remain a critic rather than a bully is to avoid picking on people with less power than yourself, keep your criticism constructive, and say it once - not over and over again.

STALKING


Stalking is attempting to make personal contact with someone when it's known that person does not want to be contacted. It can also relate to forms of spying, but this would have to go beyond what's willingly placed in the public domain. Reading a public social media feed and commenting on it, in itself, is neither spying nor stalking.

So if I block someone on Twitter, and they continue to read my tweets and negatively comment on them, but they don't create a new account to circumvent the block and address me personally, they are criticising me - not stalking me. Everyone on the internet is entitled to read publicly posted material and comment on it, provided the commentary is not libellous.

If I block someone, and they create a new account pretending to be someone else in an attempt to access me personally via DM, that's stalking - not criticism.

When it comes to personal brands, many of the stalking allegations turn out to be nothing more than criticism. Indeed, it's often the accuser who's doing the furtive tracking - not the supposed “stalker”.

“I've just been told my stalker said this... My source just informed me that my stalker said that...”

You haven't got any sources you absolute unit. You're reading it all yourself. You've set up a fake social account so you can follow a critic's protected profile on the sneak. You've set up a Google alert to monitor the entire internet for keywords that one specific person might use. No one cares what anyone says about your personal brand except you.

And if a “source” really is so obsessed with you that they're monitoring the Web for negative comments on your behalf and continually running to you with tales, I'd suggest you regard them as your real stalker. Let's not forget that courts grant anti-stalking orders against celebrities' FANS - not their critics. That should tell you everything you need to know about what real stalking is.

CAREFUL WHAT YOU WISH FOR


One of the unfortunate side effects in the rise of the personal brand, is that people have come to conflate criticism with bullying, stalking or defamation, and think they have a right to sweep away every comment they don't personally like. To say or do anything they wish without being disagreed with.

But personal brands must be careful what they wish for. There's more than one over-zealous publicity manager who has histrionically screamed “stop stalking me!” at one too many commentators, and ended up creating an audience that won't dare interact or admit to being a fan at all. Needless to say, the commercial prognosis is not particularly good.

There are times when criticism does head into the territory of defamation or libel, sometimes bullying, and very rarely stalking. And those instances should be taken seriously. But any action should be measured, and respectful of the need for other people to feel comfortable speaking freely. Trying to aggressively gag speech, or even interfere with speech, does not have an uphill gear. Once you start it rolling, it's only gonna go one way. Down.

Our one abiding takeaway from all this should be that Summerfield Browne won their defamation case, and yet they still lost the publicity management game. The law can force a critic to eat their badly chosen words. But it can't force the rest of the world to like you. We had the solution to the latter within the very first sentence. Do better. Why is that such a difficult concept for some brands to grasp?

Bob 'Interesting' Leggitt is a print-published writer, multi-instrumentalist and twice Guitarist of the Year finalist, Google-certified digital marketer, image manipulation expert, virtual musical instrument builder, "Twitter detective", and author of successful blogs such as Planet Botch, Twirpz and Tape Tardis. | [Twitter] | [Contact Details]