Sep 19 2007
Trial by Social Media – 2clix
Via Phil Sim I see that 2Clix appears to have withdrawn their legal proceedings against Simon Wright, owner of Whirlpool.
Whirlpool have yet to receive official confirmation.
Simon Wright and the Whirlpool legal team can confirm that they received informal notice from an employee of 2Clix that there may be an intention on the part of 2Clix to withdraw their Statement of Claim against Simon.
However Queensland Supreme Court records still show (as at time of posting this statement) that the legal action is current and active.
Whirlpool legal representatives have made repeated efforts to obtain formal confirmation from 2Clix’ legal representatives, Turnbull and Co without success. As such, we do not believe it appropriate to state that the action has been withdrawn and will not make such statements until it the matter is finalised.
Whirlpool removed donation links soon after receiving the note from 2Clix. A statement that donations were discouraged due to uncertainty about what legal costs would be was already in place in every thread prior to this. Whirlpool intends to offer refunds to those that want them, once the matter is formally withdrawn and the extent of our legal costs are known.
Playing Devil’s Advocate
Imagine with me, just for a second, that there’s any weight in 2Clix’s suggestion that the negative comments placed on the Whirlpool forum thread were in fact made by (unnamed) competitors of 2Clix. It’s not beyond the realms of possibility.
Imagine the frustration you would feel at being powerless to control false comments about your product, and having it feature so prominently in a Google search. Imagine these comments are not true and you can do absolutely nothing to stop it. You feel wronged and you want justice.
But instead of your “day in court” you are tried and convicted by the jury that is social media.
There are now 136,000 Google results for “2Clix sues”. The product is forever tarnished.
Granted, the lawsuit was definitely misguided. But again imagine that 2Clix is just an innocent victim, trying to do the very best – wouldn’t you feel just a little sorry for them?
14 Responses to “Trial by Social Media – 2clix”
They didn’t behave in a fashion which bespoke of common sense.
Saying that competitors decided to ruin their reputation by posting on Whirlpool, that well-known hotbead of account software reviews … well … paging Darl McBride.
They made a dumb move. They tried to cover it up. I’m sorry but I have no sympathy.
Meg, I would call it “competing voices”. How does a company compete with the voice of a blogger or a forum poster? Easy – by participating. If they participate in online discussions, the odd negative post should disappear down search engines and not be “discoverable”. Instead, all the positive work is easily found. A corporate blog sits at the top to dispel rumours and as a powerful source. Remember the Sky Handling fiasco? Or Engadget dropping 4 billion dollars off Apple’s market cap? As you pointed out, companies are finding out that the consumer has a voice (used for good or ill), and they don’t. I’m not sure if my 2clix post makes it clear, but companies that participate can often rely on brand evangelists and fans to fight for them. It’s not all doom and gloom and bad press.
Coming from a law student’s perspective (had a discussion about this with Hubby this morning – there was an article on Breakfast on ABC radio national – is probably available on their website) I think there was a case to answer and it would have been an interesting test case of new laws, but in this case the social media has peverted the course of justice (I can’t believe I’m using that phrase – but it fits) by not letting the case be sorted out legally. This is the flaw in our system, freedom of media causes cases to be decided by media, and not the law.
Just my opinion
Hey Kin, taking off the law student ‘hat” for a moment :-P, do you personally think that the law is wrong in the first place? If a bunch of people get together online and say how much they hated a product, should they be sued? If the host is the “postal service” – isn’t the company suing their consumers when they sue the forum host?? That’s a mugs game. I heard somewhere that 2clix were already facing a bunch of law suits themselves – sharing the grief by using the fear of lawsuits is not appropriate, surely? I suspect that these archaic laws came into place to protect those who did not have a media voice from those who could afford one. Now we have an (almost) level playing field… Where there is NO level playing field is in the courts. A funded company such as 2clix can afford lawyers. A forum host (I think whirlpool runs on vbulletin – $160) probably cannot. It’s just not fair to make everything play out in a court of law, so the lawyers can think that they understand the issues, when communities can be destroyed because of it. (And yes, I can’t take my social network hat off. :P)
Jacques
I wasn’t suggesting what they did was the right way to go about it by a long shot – just imagining out loud….
Laurel
I agree that they should have fought the medium with the medium. Hindsight is a wonderful thing. But even you started your post with
“I’m assuming that the belligerent writers on the 2clix or not 2clix thread etc on whirlpool.net.au are legit grumpy consumers and not some sort of sh*t-stirring competitors of 2clix:”
indicating at least the tiniest element of doubt?
Still, at the end of the day, a very powerful lesson to corporates (and why they need advice fromsocial media consultants like yourself).
Kin
I agree that it would have made for an interesting test case. Thanks for your opinion
Nah Meg, I read the posts, they weren’t competitors trolling. ““I’m assuming that the belligerent writers on the 2clix or not 2clix thread etc on whirlpool.net.au are legit grumpy consumers and not some sort of sh*t-stirring competitors of 2clix:— is actually the phrase I was advised to start with. My understanding – and I ran my post someone a more legal minded brain than me
– was that the court wants to know if it is a genuine opinion or a competitor actively trying to destroy their competition. He made it clear it was best if I stated it that way. And the case against Whirlpool was due to whirlpool’s inability to confirm if the members were competitors or genuinely grumpy. And excellent argument for turning OFF tracking of IP addresses. If you don’t have them, and don’t implement them, you truly become like the postal service who has no clue what they delivered to whom after the delivery is done. This is simply the AOL email case from 1996 all over again – don’t censor, don’t open, don’t track and you are in the clear… 
Ah, covering one’s derrière – makes sense
Especially when they are as cute as ours. *waggles her bottom at Meg* 😛
In my opinion, 2Clix did the wrong thing in the first place by suing Simon Wright.
Simon (to the best of my knowledge) never instructed, requested or encouraged that anyone make the statements that they did on Whirlpool.
The correct people to sue would have been those that made the comments. It’s not Whirlpool’s responsibility to verify the identity of any user, or the validity of the comments that are made by those users.
It’s like suing the phone company because someone said unkind things about your company/product on a phone call.
The correct person to sue in this instance would have been the users that made (allegedly) libellous comments.
From my very limited knowledge of the legal system (what I’ve read in the media), you can file a lawsuit for libel against someone without knowing their name/identity, and then subpoena first Simon Wright (for the IP addresses used to post) and subsequently the ISP (for customer-records of the account holder assigned those IPs at the time.)
Of course – leaving the matter for 12-18 months before suing just makes it harder for anyone to provide that information.
Laurel, taking off my law student hat is hard, especially as I’m in the middle of an essay about the implied constitutional rights of political communication, I see this in a similar vein.
I don’t claim my understanding of the situation is great, basically just what I’ve read on Meg’s blog and heard on the radio this morning. Based on Megs original report of the situation, I understand representatives of the company tried to offer help to users experiencing problems, I’m not sure what else people expected them to do? And having not read the threads in question, if they are malicious then I feel Whirlpool has the social responsibility to remove them, as distinct from legitimate reviews. There is an implied right of freedom of speech in our constitution, but the limit is the question.
I feel this was a case of “trial by social media” or actually even “trial by media” which further damaged a company so much it can no longer to afford (by way of reputation) to further the action I think had a chance of success. THAT is the real problem in this instance, if the media is having such an impact on our “justice system” (I use the term losely) then what value does our justice system have?
Oh forgot to mention Laurel, the “archaeic” laws they were suing under came into effect in Australia on 1 January 2006, so they’ve never really been tested like this before, which was why, as a law student, it made an interesting case. As a law student, I feel they had a case, not necessarily that they would win or should win, but there was enough there to look closely.
I think the lawsuit was a terrible idea. I think if they were providing a good service they would never have had that thread written.
There’s a lot of companies who get posts written about them on Whirlpool. Some actually work at sorting peoples issues there. That’s up to each individual company.
They sure have screwed their reputation into the ground now, though. Did you see all those threads on Whirlpool about it?
Cheers,
Snoskred
“Based on Megs original report of the situation, I understand representatives of the company tried to offer help to users experiencing problems, I’m not sure what else people expected them to do?”
That’s about all one can do. It appears there was an expectation, however, that the offers of help from 2Clix would result in negative posts from those users being removed from the Whirlpool threads.
“And having not read the threads in question, if they are malicious then I feel Whirlpool has the social responsibility to remove them, as distinct from legitimate reviews. There is an implied right of freedom of speech in our constitution, but the limit is the question.”
The question is, however, how does one define “malice”? It’s just words on a page. When a post begins “I have used this software and these are my experiences … “, how do you judge whether that’s a lie or not? As long as the contents remain fairly calm and polite, why should the be removed, just because they’re negative?
“I feel this was a case of “trial by social media†or actually even “trial by media†which further damaged a company so much it can no longer to afford (by way of reputation) to further the action I think had a chance of success. THAT is the real problem in this instance, if the media is having such an impact on our “justice system†(I use the term losely) then what value does our justice system have?”
On the other side of a coin, should a company be entitled to use legal recourse to force the removal of personal experience and opinion, simply because it was construed to be negative? Should a company have an expectation that all their interactions with users be positive, without necessarily providing the sort of service that would result in positive interactions?
It is a conundrum – these days, the Internet can make and/or break companies. Quite a lot of companies do very well by manipulating the online communities, and then get horribly upset when the communities turn against them. And, of course, there are legitimate examples of companies that have fallen victim to vicious, targetted attacks against them.
How can you tell these from legitimate personal gripes? And should a forum owner or moderator HAVE to tell?
For those who haven’t, you really should read at least some of the 2Clix coverage, prior to the lawsuit being announced.
This is a company which has very poor customer service [in the public domain] and a non-standard model for software service delivery. Neither of these factors are going to help a business.
Telling your customers things like “you’re the only person who complains about this” can appear rude, insulting and can also look like lazy service. It’s essentially a fob off, there’s no seeking additional information, no offer of help or referral to a specialist, conversationally, it’s a dead end. Consumers want conversation, not a robot or a fob off.
Many companies have turned around a hostile situation (over legitimate flaws in a product) to engaged and happy customers.
Specific issues were not responded to in public, just replied to with a generic “call the help line” response.
This is not the best practice standard for engaging with online communities.
Nor is the practice of rolling out multiple system updates in a month best practice for software as a service.
Responding to queries with details would actually help identify and separate hostile parties from legitimate complaints.
On the other side of Devil’s Advocate, is this really an online issue, or just bad customer service?
Angry customers don’t come from nowhere and they weren’t just on Whirlpool.
If anyone can point to an example of a 100% faked group of online customer complaints, I’d like to see it.