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How lawyers can advise victims of ‘cancel culture’
Cancel culture is a decade-old phenomenon that has seen many people and brands come under the weight of harsh criticism that explodes online and spreads widely. Given its relatively recent rise in the public consciousness, how can lawyers advise those wanting to sue over being cancelled?
Jess Feyder
The legal implications of cancel culture were a focal point in last week’s Court of Public Opinion panel, hosted via webinar by Unisearch and UNSW Edge. The panel included defamation law barrister Kieran Smark SC, First Impressions principal Paul Blanket, and Professor Valentyna Melnyk of the UNSW Business School.
On the one hand, cancelling someone can bring an immense amount of attention to a particular social issue, such as how the phenomenon of cancelling of people alleged of sexual assault crimes has increased the spotlight on sexual assault, and added to the negative implications for committing such crimes, explained Professor Melnyk.
Negative effects of cancel culture arise when claims are unjustified or exaggerated, she said.
“Cancel culture is, at its heart, a simplification process,” explained Mr Smark.
“The bulk of people participating in cancel culture have often been convinced of a position without knowing 95 per cent of the facts,” explained Mr Blanket, noting that they come to a conclusion about the whole story based on a headline and a picture, and have no clue of the nuances involved.
Cancel culture is rife and only going to grow, the panellists agreed, and so are the numbers of clients coming to lawyers with defamation cases.
“The transmission of material online is really the reason why defamation is so alive, and why it’s so topical,” stated Mr Smark.
“The way content spreads on social media is infinitely more powerful than with print media.
“People are more willing now to push back and say, ‘Someone said this on Twitter; I’m going to fight back’.”
They are emboldened “by reports of other court cases, where people have succeeded in getting verdicts or succeeded in getting stuff taken down”, he said.
“More people are coming for advice and thinking they can sue for comments that are put up, particularly on media websites. And they’re going for it.”
When facing a cancelling attack, one thing that organisations and people do is turn to their lawyers, looking to people they can trust for advice, Mr Smark went on.
Sometimes, they want to take the route of using a marketing solution to remedy it, whether it’s choosing to apologise or defend themselves publicly. Sometimes, they will want to use a legal solution, and decide to sue for defamation — sometimes, they’ll use a combination of the two, he outlined.
“One thing that lawyers have to be aware of is the need to act fast. This is for several reasons.
“Firstly, because if you decide to sue for defamation, there is a one-month period to begin a defamation case.
“If you’re a lawyer advising people who’ve got a dispute, it’s important to say, ‘Get me the information quickly because we need to get the relevant documents together within 28 days to submit a notice so that if we need to, we can get to court’,” Mr Smark said.
Secondly, being able to control the narrative is essential — you want to get the right information out to shield the brand or person against the negative story, Mr Blanket explained.
“The minute you allow that narrative to be run by the negative social media, the bigger and more long-term problem you’re going to have,” he added.
“For clients deciding to respond publicly, whilst also pursuing a court case, lawyers must be consulted in sharing information online,” Mr Smark highlighted.
Certain kinds of information can interfere with a trial, be in contempt of court, or compromise connections with possible witnesses, he elaborated.
Mr Smark emphasised that before proceeding with a defamation case, lawyers must advise on the best route for the client, with the chief consideration in mind — what is the path that is most likely to get the story out of cyber space?
“My rule of thumb is to say to people, ‘When you Google this in two weeks’ time, if it won’t be on the first page of a Google search, all you’re going to by suing is elevating it in the public’s mind.’
“You’re often better off putting a fraction of what you would spend on a court case, which might be several hundred thousand dollars, on a bit of search engine optimisation, which you might be able to do for $20,000 by getting some people to write some nice stories about you and get them up the rankings.
“It’s got currency, you put a few hashtags in, and suddenly you’ve got something which, if someone searches your name, will displace the unfortunate, regrettable incident with a goat,” he said.
It’s ethical and something lawyers should advise because it works, Mr Smark noted.
