A developing legal and ethical issue in emerging media is whether a business has the right to sue and win in court against a consumer who received what they believe was poor service or a bad product and posted a negative review.

Simply do a Google search with this or a similar phrase and many stories immediately pop up: “businesses sue over negative social media posts.”

“One consumer who was angry over what she thought was poor work on her home logged onto Yelp and posted negative reviews about the firm that did the work, including claims that some of her jewelry was missing.  The contractor filed a $750,000 Internet defamation lawsuit against the consumer saying the postings on Yelp and Angie’s list were false the court for a preliminary injunction to keep her from writing similar reviews.” ( 2014)

“Lawyers say it is one of a growing number of defamation lawsuits over online reviews on sites such as yelp, Angie’s list and Trip-Advisor and over Internet postings in general. They say the freewheeling and acerbic world of web speech is colliding with the ever-growing importance of online reputations for businesses, doctors, restaurants, even teachers. No one keeps track of how many suits are filed over online reviews, and lawyers say the numbers are still small but are getting larger.” ( 2014)

In another case, “Hotel Quebec sued a former guest for $95,000. The reason? The guest wrote a negative review on TripAdvisor exposing the bed bugs in his room and refused to remove the review.”

“Lawyers say such cases are a cautionary tale for a new era: those who feel targeted by defamation on the web are more likely to file suit, and judges and juries are more likely to take such claims seriously than in years past, raising the legal stakes over vitriolic reviews, nasty blog comments and Facebook feuds.” ( 2014)

the following analysis is from ( 2014)many dentists, wedding photographers, moving companies, locksmiths and online retailers have each tried to limit negative online customer reviews via nondisparagement clauses in their service agreements.”

Traditionally found in negotiated settlement or employee severance agreements, nondisparagement (or “no review”) clauses are now making their way into non-negotiated service contracts and the oft-ignored terms and conditions of online retailers. So the question becomes: are nondisparagement clauses the wave of the future, or simply the next battleground in the war for online consumer rights?

In its simplest form, a nondisparagement clause seeks to prevent a customer or receiver of goods or services from posting negative reviews about a service provider or vendor by outlining the financial repercussions for any violation.

The impetus behind companies inserting these clauses is the popularity of review sites like,,, and—coupled with the increasing number of people turning to such sites in choosing which companies to do business with. Because a poor review can be financially devastating, businesses want to prevent clients from bad-mouthing them—even if the criticism is true.

Still, the first issue regarding any non-negotiable, nondisparagement clause is whether it is enforceable. According to University of California, Los Angeles constitutional law professor Eugene Volokh in a Wall Street Journal article titled, “you ruined my wedding—and you’re suing me?” the answer, not surprisingly, is: it depends.

As a general rule, items agreed to in a contract are enforceable. But the “gotcha factor” is critical, Volokh told the wall street journal. If a reasonable consumer would be very surprised by a clause in a vendor contract or a terms of service agreement, that provision may be deemed unenforceable. “you could see some of these [nondisparagement clauses] invalidated,” Volokh said. “this will be decided on a state-by-state level.”

Consumers should be careful when reading a non-negotiable service agreement, so as to be aware of any nondisparagement or similar clauses. This is especially true when dealing with an online retailer’s terms of service—which may be separate from the specific contractual provisions.

Businesses can also take steps to ensure their reputations are protected without impugning free speech. According to one commentator, a more defensible approach is to require a consumer to take their complaint to the company before posting anything online; in exchange, the consumer receives a coupon (or other item of value). This approach would not ban comments indefinitely.

But even setting aside the legal issues, public perception of companies using nondisparagement clauses may also be worth considering. Such clauses may send the message a company does not stand behind its work, or is overly concerned with bad press. While a few negative reviews may be the cost of doing business, the overall impact will be negated by more positive reviews.

As businesses continue to take concerted steps to protect their online reputations, and consumers continue to post online, this area of law is likely to develop. The introduction of pro-consumer legislation will only quicken the pace. But until then, the battle for online consumer rights carries on.( 2014)


The Mobile-Social Mom!

“According to a new eMarketer report, “The Mobile-Social Mom: Speeding the Trend Toward ‘Mobile First’,” if you want to know who is moving over to mobile social media, look no further than mom. eMarketer estimates that as many as half of all moms with children under 18 in the household will use mobile devices to access social networks in 2012.”

“Moms more likely to own smartphones, tablets compared to general consumers.”

“Moms are on the leading edge of a behavioral shift that has marketers and social networks scrambling. They may soon become the first demographic group who will use the mobile phone or tablet more often than the computer to access social networks.”

The Truth About Online Engagement

Many people talk about online “engagement” yet few take the time to define the term, create a strategy to increase engagement, and create effective methods of measurement.

There are many definitions of online engagement but let’s keep this simple and use Facebook as an example. If your customers or potential customers “like” a post or respond with comments or questions, they are engaging with you. They latter is what you want.

It’s not about how many followers or the number of people who “Like” your page; it’s about the number of people who engage with you, your venue, your service, your products — your brand.

Engagement means creating community, having a two-way conversation, having a dialogue with your followers. It means they ask you questions, and they share ideas that relate to your brand and other followers.  It’s as if everyone is invited over for a big community festival at a park and everyone is sharing with each other. That’s engagement.

You can increase engagement by asking for it. If you are a restaurant or grocery store and you post a great recipe for dinner, ask people to send you photos how it tasted and what their version looked like. Ask them to send in and share similar recipes.

You can track engagement month to month, year to date, and that month year to year. The goal is to increase the comments and the engagement.

(c) Joseph Barnes

The True Power of Social Media!

For those of you you follow Erik Qualman, he has a book I highly recommend — “Socialnomics,” which I use in many of the social media marketing classes I teach. And he has produced some amazing videos. Here’s the latest that just goes to prove where people are talking!

The Magic of Digital Storytelling!

As you read through many of my posts you have seen that I talk frequently about the powerful magic of storytelling. Using digital tools you can create powerful digital “experiences.”

Always look for the “nuggets,” not just something that you can replicate or seeing a video and thinking “we can’t don that.” Look for the inspiration, the little ideas and build on those.

With that in mind, here’s a very funny foreign commercial with some great surprising reveals.

The Importance of Having A Well Thought Out Social Media Strategy!

If you think having a well thought out social media strategy isn’t important tell that to over half of the Fortune 500 companies. They are in the game and know how important social networking and listening to customers has become.

I’ve said it before and I will say it again: Be in the channels where your customers and potential customers are talking. Listen. Ask questions. Build community. Remember: Facebook is the 3rd largest country and Twitter is the 12th largest.

Now there’s yet another research study about the importance of social media. Jive Software and Penn, Schoen & Berland found 78% of executives think having a social business strategy is somewhat or very important to the future success of their business. Sad but true—42% felt their social strategy was just keeping up and 33% felt they were behind.

eMarketer estimates 80% of companies with at least 100 employees will use social networks for marketing this year, up from nearly three in four last year. By 2012, usage will be even greater, and, in turn, efforts are becoming more sophisticated.

Any questions? Just watch!

How to Develop an Internet Strategy in Six Easy Steps!

The key to developing an Internet marketing strategy is to do it steps and be thoughtful about what you are planning and why.

1. Define your target.
2. What is your message? Focus.
3. What is the best platform to connect with your target?
4. When is the best time to connect with your target? (Season? Months? Day of the week? Time of day?)
5. Develop a plan for implementation. Make it step by step with a timeline and benchmark goals.
6. Implement, then evaluate.

I recommend you use a creative brief for social and digital media initiatives just as you do for advertising campaigns. It will help you focus. You can find many samples on the Internet at no charge.

(c) Joseph Barnes

Say Goodbye to Traditional Demographics and Segmentation!

If you still segment customers in the traditional way like women or men 25-54, etc., you are stuck in history and missing how to access true consumer behavior today.

Social and Digital Media have created a new playground where common interests and shared valued cut across traditional demographics. Let me explain:

In today’s world someone 21 years and younger or 50 and over will be put into a “box” and traditional marketers have preconceived notions about who they are, what their interests are, their lifestyle, etc. And if they do that new research is showing they will miss out on reaching their target. 

According to “,
Today’s consumers have become
• Producers of content
• Programmers of content
• Marketers of content
• Editors of content
• And publishers of content.

At the Norman Lear Center they argue we are in an “Attention Economy,” Everyone is a brand, and every act of communication is also a media campaign to market that personal brand. And,
If you want to participate in social media, you must attract an audience.

Their strategy? Find out what entertains your target audience. And as I see the future, that’s where we drop old demographics. The water cooler conversations cut across all ages and traditional demographics. My iTunes playlist is hipped than my daughter’s, but marketers wouldn’t know that because they have me in a traditional box.

Smart Students!

If you get a chance I would encourage you to read the student blog from a class I am teaching at Seattle University on Social Media and Digital Marketing. The students regularly post what they have learned and I’ve been very impressed. You’ll read everything from ideas on how to use QR codes to social and digital market ideas. Click here to read. 

Here’s Why Social & Digital Media Are So Important

People sometimes ask me why social and digital media is so important. Here’s why:

  • There are now more social-networking accounts than there are people in the world. (In-Stat).
  • After 23 years, Pepsi dropped TV advertising for last year’s SuperBowl to spend $20-million on a social media campaign. (PEW)
  • There are more than 5 billion photos on Flickr (CNN).
  • 74% of marketers who have been using social media for years, say it helped them close business (2010 Social Media Marketing Report).
  • People spend over 700 billion minutes each month on Facebook (Facebook Statistics).
  • 53% of the Fortune 500 have at least one active Twitter account.
  • Twitter users send an average of 600 tweets per second (Twitter).
  • 28% of U.S. online holiday shoppers are influenced by social media (Marketing Charts).
But remember: It’s about creating a two-way dialogue, creating community, and listening and responding to your customers.
(c) Joe Barnes