Canada: How to Manage Your Reputation Online

 

By Aya Barbach © Fasken March 22, 2019
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​It is now common in Canada to rate the people we meet and places we visit—your ride share driver, last night's date, the corner restaurant or your family doctor. At some point, we have all been asked to grade an experience based on our degree of satisfaction.

The rating phenomenon is not exclusively for consumers. Employees can now rate their employers on websites such as RateMyEmployer.ca and Glassdoor.ca. This has also led to new debates before the courts. For example, the Superior Court of Ontario recently ordered Glassdoor to disclose the personal information of an individual who had posted defamatory comments on its website.

This article provides some practical tips to assist employers in better managing their reputation online. These can be summed up to three action items: prevent, evaluate and react.

Prevent

Contributors to these rating websites are sometimes dissatisfied employees. Even though their ratings on these websites may not necessarily reflect reality, potential candidates may use them as a reference. As a result, employers may want to consider implementing preventative measures, including:

Technological presence and monitoring. Employers should ensure that they have tools in place to monitor comments made about them online (e.g., Google alerts). This will help employers to identify and react quickly to defamatory or unauthorized remarks.

Review of internal policies. Employers should review their policies about employees' online behavior to ensure that they address the use of online rating websites.

Employment separation agreements. Agreements should generally contain provisions aimed at protecting the employer's reputation by prohibiting the individual from making negative or disparaging comments about the employer and its employees.

Evaluate

Generally speaking, employees may not publicly express unfavorable opinions about their employers based on claims that are false, unfounded, distorted or exaggerated. Consequently, an employer must evaluate the comments to determine if they constitute a wrongful act against its reputation. Here are several factors that the court will consider in determining whether a comment constitutes a wrongful act. Employers should consider these same factors:

Nature and frequency. Generally, statements made with an authoritative tone or out-of-context, even if true on their own, may be considered false statements. The number of comments made may also be a factor in determining whether there is damage to or intent to damage the employer's reputation. Lastly, the fact that a statement was deleted is not sufficient to rule out any misconduct.

Choice of platform. The type of website on which the statements were posted can affect the assessment of their severity. Statements about an employer that are posted on specialized websites (for example, RateMyEmployer or Glassdoor) will be considered more serious than those posted on a general website. Employers should be aware these specialized rating websites often have content policies.

Date of statements. The employer must act quickly on allegedly wrongful comments or ratings to show it was diligent in the situation.

React

When faced with defamatory statements on a rating website, employers may want to take measures to remedy the situation. Here are some examples of remedial measures that may be appropriate depending on the circumstances:

Identity of the author. If the employer knows the identity of the employee who wrote the defamatory statements, disciplinary measures may be imposed depending on the circumstances. If the person is a former employee, an action for defamation might be considered.

Seeking the author's identity. If the employer is unable to identify the author of the defamatory statements, the employer might be able to obtain a court order requiring the website to disclose information necessary to identify the author.

Action against the rating website. Lastly, depending on the context and applicable law, the employer might have access to a specific remedy against the rating website. For example, in Quebec, under the Act to Establish a Legal Framework for Information Technology, a rating website may be liable if it is aware that the statements are being used to carry out illegal activity.

Over time, employer rating websites will likely become more sophisticated and increase in number. It is important for employers to remain up-to-date with this new reality in order to manage not only the negative effects that can result from it, but also to learn to use it to their advantage as a recruitment tool.

Aya Barbach is an attorney with Fasken in Montreal. © 2019 Fasken. All rights reserved. Reposted with permission of Lexology.

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